matter (other than the advertisements) contained in the two preceding numbers of the Times, with such omissions and abridgments as were considered desirable, but with the addition of a postscript containing the latest market intelligence, and also such advertisements as had been separately bespoken and paid for, for the Evening Mail." This mode of publishing both newspapers continued down to the year 1864, although in 1820 one fourth share in the Evening Mail became, by purchase from a son of the original founder, vested in a stranger, from whom the plaintiffs derived their title. The object of the suit instituted in Chancery was to have it declared that the arrangement which had been so long in existence gave the proprietors of the Evening Mail certain rights and interests in and over the Times, which the proprietors of the latter newspaper could not at their mere will determine, viz., the right of republishing the matter of the two last preceding numbers of the Times, or any selection and abridgment of it, and the right of causing to be edited, printed, and published the Evening Mail whenever the Times should from time to time be edited, printed, and published. The bill further prayed that, in case a notice given by defendant for the dissolution of the partnership had been properly given, it might be declared to be dissolved, and directions should be given for the sale as a going concern of the Evening Mail, and the copyright and goodwill thereof, including particularly the rights and interests in and over the Times, and the copyright and goodwill and other property thereof; and in case the proprietors of the Times should be unwilling to carry it on subject to such rights and interests of the Evening Mail, then that the proprietors of the latter paper should be declared entitled to have the Times and the copyright, &c., thereof sold, subject to such rights and interest. The Vice-Chancellor (Stuart) dismissed the plaintiff's bill, except so much of it as prayed a dissolution of the partnership and an account; and the Lord Chancellor (Chelmsford) confirmed this decision. It was contended for the plaintiffs that, although so long as the original founder continued to be sole proprietor of both newspapers, no rights or interests could be said to belong to the Evening Mail either in connection with or independently of the Times; yet when the original founder had made a separate grant to one of his sons of one fourth share in the Evening Mail, he thereby not only gave birth to rights in that paper, but also created a kind of servitude over the Times; i.e., he took upon himself an irrevocable obligation to allow the matter in its columns to be copied into the PART IIL PART III. Evening Mail, and to permit it to be printed at the same place and with the same types as the Times. In reply to this, Lord Chelmsford says: "Suppose a covenant to this effect to be good against the grantor, who was sole proprietor and also printer of the Times, how could it bind the future proprietors and printers of that newspaper? The covenant relates not to the property granted, but it imposes what may be properly described as a servitude upon the property, which is of a personal nature. It is at the utmost, therefore, a mere personal covenant, binding upon the covenantor and his personal representatives, but the burthen of it not running with the property of the Times against assigns." In answer to a further argument on behalf of the plaintiffs, based on the length of time during which the arrangement had continued, the Lord Chancellor observed: "The presumption of a grant from long continued usage arises only where the origin of the usage is unknown. But in the present case, if the right claimed by the plaintiffs originated in the grant to William Walter [the founder's son], the usage is not required to establish it; and if it did not so originate, the usage is of no avail. The claim of the plaintiff's makes it necessary for them to prove that, either by the original grant of the shares in the Evening Mail to William Walter, or by some subsequent right obtained by the plaintiffs against the proprietors of the Times, a perpetual benefit to the Evening Mail, and a perpetual burthen on the Times were established, however prejudicial it might prove to the interests of the proprietors of the Times; and that upon the dissolution of the partnership in the Evening Mail, and the consequent sale of the property in that newspaper, the proprietors of the Times were bound to give a value to the goodwill by continuing the arrangement for its publication as long as the Times should continue to be published. There is certainly no express contract to anything like this effect between John Walter, the grandfather, and his sons, when the separate interests in the Evening Mail were first created; and it would be a strong implication to draw from the transaction, that the burthen of such an obligation was intended to be assumed by Mr. Walter for himself and for all future proprietors of the Times." Finally, the Lord Chancellor said: "What are called in the bill the rights and interests of the Evening Mail over the Times appear to me to have begun in will and pleasure, and to have continued throughout upon the same footing. They could, at no time, have been enforced; and upon the dissolution of the partnership in the Evening Mail and its consequent sale, the court has no power to direct that they shall be included in the goodwill and property of that newspaper." PART III. within 17th Statute of A contract by a printer to print, and find the paper for Contract to printing, a number of copies of a work is not a contract for print is not the sale of goods within the 17th section of the Statute of section of Frauds as extended by the 9 Geo. 4, c. 14, s. 7; and the Frauds. printer, consequently, may recover the price in an action for work, labour, and materials, where the contract is a verbal one.(a) "In such cases," said Pollock, C.B., 'it seems to me that the true criterion is, whether work is the essence of the contract, or whether it is the materials supplied. . . . I am inclined to think that it is only where the bargain is for goods thereafter to be made, and not where it is a mixed contract for work and materials to be found, that Lord Tenterden's Act (9 Geo. 4, c. 14) applies." "The defendant," said Martin, B., "having a manuscript, takes it to a printer to print for him. Then what does he intend shall be done? He intends that the printer shall use his type, shall set it up in a frame and impress it on paper, that the paper shall be submitted to the author, that the author having corrected it shall send it back to the printer, who shali again exercise labour and make it into a complete thing in the shape of a book. That being so, I think that the plaintiff was employed to do work and labour and supply materials, and for that he is entitled to be paid. It seems to me that the true criterion is this: Suppose there was no contract as to payment, and the printer brought an action to recover what by law he was entitled to receive, would that be the value of the book as a book? I apprehend not; for the book might not be worth half the value of the paper on which it was printed, but he would be entitled to recover for his work, labour, and materials supplied; therefore this is in strictness work, labour, and materials done and provided by the plaintiff for the defendant. In the case of Bensley v. Bignold, (b) where the defence was that the printer had not affixed his name to the book as required by the 39 Geo. 3, c. 79, s. 27, it was treated by Abbott, C.J., Bayley, J., and Holroyd, J., as a contract for work, labour, and materials." (c) A printer who is employed to print certain numbers, but Printer's lien. not all consecutive numbers, of an entire work has a lien (a) Clay v. Yates (1 H. & N. 73). (b) 5 B. & Ald. 335. (c) Clay v. Yates (ubi suprà). U PART III. Customs of trade between printers and publishers. upon the copies not delivered for his general balance due for printing the whole of those numbers. (a) Where a printer was so employed by one Stratford, and printed 8750 copies, of which he delivered only 5987 to Stratford, the residue remaining in his own warehouse, though Stratford supplied the paper for printing the several numbers from time to time as they were to be printed, and the printer made a separate charge for each number, the assignees of Stratford, who afterwards became bankrupt, were held not entitled to recover from the printer the copies remaining in his possession, on tendering to him so much as was due for the printing of those copies in proportion to his charge for the whole. Lord Ellenborough, C.J., said: "I think the defendant had a lien for the whole balance, the work being an entire work in the course of prosecution, upon the same principle that a tailor, who is employed to make a suit of clothes, has a lien for the whole price upon any part of them. It would be inconvenient if he was obliged to make stops in the course of the work: the nature of the work affords a reason for his general lien." And Le Blanc, J., added: "The supplying the paper from time to time did not make it the less one entire work." (b) It seems that a stereotype printer has not a general lien on stereotype plates not manufactured by himself, but only put into his hands for the purpose of printing from them. (c) To establish a general lien in such a case, the stereotype printer must show, according to Tindal, C.J., such a custom of trade that the other party to the transaction must be taken to have contracted with reference to it. "Nothing short of this," said the Chief Justice, "will dispense with an express contract; for generally that is the only mode of creating such a lien as this, which the common law does not recognise. In trades long established such a usage may not improbably have grown up; but it requires strong evidence to show its existence in a new trade like that of stereotype printing, which has sprung up within a short period, (d) and in which it is not very probable that any such general usage has yet been established." (e) It seems that by the custom of trade a printer cannot recover for the printing of a work before the whole is completed and delivered.(ƒ) (a) Blake v. Nicholson (3 M. & S. 167). (b) lb. (c) Bleaden v. Hancock (M. & Mal. 465; 4 C. & P. 152. Per Tindal, C.J.) (d) This case was decided in 1829. (e) Bleaden v. Hancock (ubi suprà). (f) Gillett v. Mawman (1 Taunt. 137). See also Adlard v. Booth (7 C. & P. 108). And it would seem that there is a usage of trade between the printers and proprieters of newspapers, that the latter should give to the former four weeks' notice of an intention to put an end to the employment, or pay them four weeks' wages. (a) But there does not appear to be a reciprocal obligation on the part of the printers. (b) It would appear that there is no general custom of trade binding printers to insure for booksellers the paper given for works to be printed. (c) For many years the business of printing in London, as between the master printers and compositors, has been regulated by committees of each body, who have from time to time agreed upon rules, which, so long as they remain unaltered, are treated and acted upon as binding between master and compositor, and are imported into every engagement to which they are applicable. (d) PART IIL compositors for The following rules, agreed upon in 1839, relating to the Payment of payment of compositors for printing advertisements on advertisements wrappers, came before the Court of Exchequer in 1858 for on wrappers, interpretation: "Every companionship (which means the compositors) on a magazine or review to be entitled to the first or title page of the wrapper of the magazine or review, but not to the remaining pages of such wrapper, or to the advertising sheets which may accompany the magazine or review. Standing advertisements, or stereo blocks, forming a complete page, or, when collected together, making one or more complete pages in a wrapper or advertising sheet of a magazine or review, not to be chargeable. The compositor only to charge for his time in making them up. The remainder of the matter in such wrappers or advertising sheets, including standing advertisements or stereo blocks, not forming a complete page, to be charged by the compositor and cast up according to the 8th and 20th Articles of the scale as they may respectively apply." The interpretation given by the Court of Exchequer, whose judgment was affirmed by that of the Exchequer Chamber, (e) was as follows: "We think it clear that the paragraph or sentence of the rule beginning 'standing advertisements' has reference to the wrapper or advertisement sheet then about to be composed and printed, and that the master has the right to direct in what manner they shall be printed. He may direct that they all, as far as possible, be put into (a) Cunningham v. Fonblanque (6 C. & P. 44, Park, J.) 3 H. & N. 702. |