Transcription of deposition taken in the cause from John S. C. Morris and John A. Keith. Also, affidavits from James Hutchings and William Ashbee (all but one line missing). Source: "Morris v. Ashbee", 1868, cause number: 1868 M81; The National Archives of the UK (TNA), ref: C 16/514/M81 (http://discovery.nationalarchives.gov.uk/details/r/C7896228). Transcribed by Tony Proctor, 10 Sep 2015. ================================================================ [page 1] 1868. M. No. 81. IN CHANCERY. Total folios 87 LORD CHANCELLOR. VICE-CHANCELLOR GIFFARD. Between JOHN STUART CROSBIE MORRIS - - Plaintiff and WILLIAM ASHBEE LEWIS SIMONSON EDWARD DUTTON and ALEXANDER FRANCIS LAMB - Defendants. DEPOSITIONS TAKEN IN THE CAUSE AND AFFIDAVITS FILED ON THE PART OF THE DEFENDANTS BY MR. GEORGE WHITE OF NO. 70 GUILDFORD STREET THEIR SOLICITOR. Depositions of witnesses cross-examined in the above cause at chambers 3 Hare Court in the Temple Before me WILLIAM COOPER Special Examiner named in an order made in this cause and dated the 6th day of July 1868 Sworn this 10th day July 1868. Filed 15th July 1868. JOHN STUART CROSBIE MORRIS of No. 4 Moorgate Street Buildings in the city of London publisher the above-named Plaintiff cross-examined on behalf of the said Defendants on the affidavit sworn by him the said Plaintiff in this cause on the 24th day of June 1868 and filed the same day saith as follows : Question put. What documents do you produce ? Answer. Nothing beyond those already exhibited those which from the exhibits made by myself and witness in support of the affidavits made in this suit Exhibit [10] letter A Plaintiff's affidavit 21st April 1868 Exhibit E' the same and exhibits numbered Ml M2 M3 M4 Plaintiff's affidavit 19th May 1868 Exhibit C to affidavit of Charles William Gordon 2lst April 1868 Exhibit F to the affidavit of Edwin Bennett 22d May 1868 Exhibit G to the affidavit of William Henry Bennett 24th June 1868 I have other documents relating to the matters in question I have letter books letters I don't know whether I have any copies of letters relating to this suit neither do I know whether the letter books and letters which I state I possess do affect this suit I have account books relating to the Business Directory but I do not consider they have reference to this suit I do not produce these accounts I decline to produce them. [20] (The books relating to the Directory are now called for and are refused as they would only satisfy curiosity on other subjects It is suggested to witness that leave should be given that the account books relating to the Business Directory should be produced to the Defendants solicitor or at the witnesses place of business This is refused and witness further adds that I shall not produce them unless on the hearing of the case and the judge considers them necessary but if the Defendants can state what they want to know about the books and if such knowledge can be obtained by them I should probably have no objection to so much of the [30] books as affected the matter being examined by a public auditor to be approved of by me (The books relating to the Business Directory from its commencement to the present period are requested on its being asked what books are required) Adjourn- ment Adjournment at witness's request from 11.30 to 1.30 to enable him to fetch books [page 2] Examination resumed. I have now brought with me the following books but although I bring them I am not at present aware that any of them affect the question as to whether the Defendants did pirate my book or not or whether they were or were not justified in so doing This I believe to be the only question at issue in this suit three letter books one cash book one stock book one private miscellaneous six cash &c. books from 1861 to 1865 one canvasser's day and ledger combined 1860 one canvassers day book 1867 and one canvassers ledger same year and one ditto of each 1868 three bundles of canvassers returns 1666 1867 1868 Directories being all the [10] vouchers of the five books of account last mentioned One miscellaneous book for 1868 one volume sample of eight volumes which forms the entire copy for 1868 Directory one volume sample of 16 in preparation to become copy for 1869 Directory one box of slips ready to send out for canvassing for next Directory Sample of 82 boxes containing over 5000000 such slips these represent perfect streets and are at present lying in alphabetical order according to the name of those streets commencing King William Street Strand to Lawrence Pountney Lane I have in my possession the other seven volumes of copy of 1868 Directory and the other 15 volumes in preparation to the 1869 Directory and other 81 boxes of slips or forms I believe I have no other letter books than [20] those I have brought The first letter is dated 10th July 1863 the last of the first book is 30th July 1865 the next commences 17th March 1865 and extends to 25th February 1867 the third commences 4th March 1867 and extends to 1st July 1868 Cash book I bring commences 29th March 1864 and extends 18th June 1868 I bave other cash books but have not looked in them for some years they date previously to 29th March 1864 and are I be1ieve imperfect and uncon- secutive I believe I have one stock book besides but nothing more is in it than is contained in books I have brought I have no other private miscellaneous book that I am aware of I may have noted matters connected with the Business Directory in old and disused pocket books the cash books are all I have for that [30] period I have none but those I have brought here mentioned above I have brought all the account books I have got I have had other documents relating to the Business Directory besides those I now possess I had but have not now all the manuscripts from which my 1862 Directory was printed also the cuttings from that and succeeding editions with the other manuscript forms necessary for composing the various successive books had I retained those they would have amounted to about 2000000 and above and as I know no possible use that they could now be of to me or anyone else it has been my invariable custom to clear them out as waste paper as soon as the books were printed as I have ever been hampered for space in the office I have occupied from the commencement of my [40] publishing the Business Directory up to the present time have had besides sheets of paper on which I have had settlements of accounts with canvassers which were destroyed after No letter books have ever been destroyed but in my business I receive many thousand letters concerning addresses removals adver- tisements &c. which being useless to keep I destroy as soon as acted upon And I have written other letters besides those in letter books a copy of which is not contained in these letter books but many of which or the most important of which are in my private miscellaneous book. << [left margin] This objected to Now 2.35 and adjourned at request of Plaintiff's counsel for consultation. Now past 4 p.m. and I adjourn to xii July 13th. << Question. What are your receipts in each year in respect to the Business Direc- tories 1862 1863 1864 1865 1866 1867 1868 ? I decline to answer that question because it has nothing to do with the matters in question in the cause and is I conceive an improper attempt to pry into my private affairs. Question. What have been your receipts in those years in respect to the inser- tion of capita1s or extra lines and other advertisements ? I decline to answer this and for the same reasons. Question: What were your receipts from the sale of the books in each year ? [page 3] I decline also to answer this and for the same reason. Had there been nothing pirated but the plan of the work I should not have thought that of sufficient moment to trouble about as many Directories have in many respects similar plans Thus mine is by no means the only one in which the trades are classified alphabetically but to the best of my present belief my first edition which contained names in capitals and advertisement pages opposite trades was the only one at that time which had been published in England with those peculiarities and I have never waived my title to and copyright in those capitals or to advertisements pages opposite trades In a subsequent edition I [10] inserted a plan which brought in much profit and employed my canvassers during the slack time namely the insertion of a provincial appendix These three pecu- liarities together with the plan which I had adopted in common with those of many Directories have been followed by the Defendants and I do not see they have originated any other plans or improved upon the old ones All I accuse the Defendants of pirating as regards the plan consists in adopting these three pecu- liarities The edition 1862 was published about August 1862 but that was not the first book in which I introduced capital and advertisement pages opposite trades I find by referring to a memorandum book I still am of opinion the book was published in August as above I did not invent the use of capitals or the [20] insertion of advertisement pages opposite trades but I introduced them into England I am acquainted with Williams's Directory That produced by Defen- dants is it The edition 1865 1866 marked J. W. 1 the book produced by Defen- dants The Marylebone and Saint John's Wood Directory for 1868 marked J. W. 2 I have not seen this edition I believe I can remember having a correspondence with the publishers respecting the use of capitals but I can't remember whether they had then only issued a circular or had published a book I do remember forbidding both them and Mr. Williams of the other Directory from using them but I did not follow up either by legal process because the Marylebone &c. Direc- tory did me no material damage and Williams's Directory scarcely any added to [30] which I believed Mr. Williams not to be sufficiently substantial to render the continuance of his work probable and it has not been continued I have not brought that correspondence here and doubt if I can find it I have not searched for it I do not remember I had a correspondence with any others of a similar character I never adopted legal proceedings against any other person for infringement of copyright before the present suit I don't remember threatening any I don't believe that I ever interfered or had cause to interfere with anyone else I have reason to believe to the best of my recollection I never saw any edition of Matthews's Bristol Directory until after the 24th June 1868 when I saw it at the British Museum as I think I have no recollection of ever having [40] seen any edition of the book produced marked J. W. 3 West London Street Directory I have seen several editions of the book marked J. W. 4 Smith and Co.'s Time Table and Trades Directory I have seen one or more editions of book produced and marked J. W. 5 St. Pancras Directory 1864 I have seen copies of some edition of the several books produced and marked J. W. 6 and J. W. 7 and 8 "Jones's Mercantile Directory for the Potteries" and "Jones's Mercantile Directory for Halifax " and "Jones's Handbook for Greenwich" The sight of these books reminds me that whilst I was preparing my first London Directory I heard that Mr. Jones was canvassing Greenwich and was adopting the system of using capitals and believe I either wrote or called upon [50] him to discontinue His book when published I found had not interfered with me and although he published a number of works for various towns and districts in England in which he continued to use capitals I never interfered with him because he never came to London to the best of my knowledge nor pirated any of the contents of my book or otherwise did me any injury The resu1t of my application to Mr. Jones if I made any was that he proceeded in his course I don't know whether he set me at defiance or remember that he paid any [page 4] attention to my application if I made any. I cannot undertake to swear that I made application as it is some years ago and I cared very little about the subject but I will if desired look into it If you can give me any dates that will facilitate the search the dates of the books last marked are 1862-3 and 1863-4 and 1864 To the best of my recollection I never saw the book produced and marked J. W. 9 Without any further reference I cannot undertake to swear positively whether I ever had any communica- tion with Jones on the subject of his publications Letter marked J. W. 10 is my letter I have forgotten the two instances I have in the letter alluded to [10] I refer to my letter book I find no marginal note to explain whom I alluded to I cannot tell if my letter books throw any light upon any communication I have had with Jones without an examination that would take some hours I will not allow the Defendants solicitor to make that examination as there are a great number of letters in that book which do not concern this suit and might be abused by him I will myself undertake to do so but I do not think the question affects the suit but will give the result to-morrow and produce any letters or copies of letters that I may find betwixt Mr Jones and myself or Mr Williams and myself upon that matter Kelly publishes usually his London Directory about two weeks before Christmas or 10 days Book produced marked J. W. 11 [20] is the Post Office London Directory for 1862 and the book now produced purports to be the Post Office London Directory for 1861 marked J. W. 12 I am not aware that any of my canvassers copied entries from the Post Office London Directory they were strictly forbidden to do so I have no recollection of being told that any of my canvassers so copied for the purpose of the Business Directory. They did so copy for the purpose of the Imperial Directory I have no knowledge of extracts made for any other purpose excepting advertisements and paid insertions I do not remember having been told by Mr. Keith of my canvassers taking extracts from Kelly's Directory I cannot undertake positively to swear I may not have been so told but can positively swear I do not remember [30] it Extra lines are paid insertions Capitals are not paid insertions as the name would be inserted whether in capitals or not but they are simply a more con- spicuous mode of printing Capitals are not used gratuitously they are paid for by the persons whose names are so printed My charge for inserting extra lines is 1s. a line and the charge for printing each name in capitals was 1s. each time up to 1868 my last edition when the charge was raised to 2s. to make it more select My charge in 1862 was 2l. 10s. for a page at the end of the book and 5l. for page opposite the trades I am not quite sure what it was in 1864 but believe it was 4l. 10s. for a page at the end of the book and 8l. for a page opposite the trades the pages then being double the size 4l. 10s. was the charge [40] at the end of the book in the subsequent editions and is still the charge but for the pages opposite trades in the 1868 edition the charge was 12l. and that is still the charge There are other pages such as those on the cover for which prices higher than those at the end of the book were obtained the last-mentioned charges varied very considerably according to their position and demand so that I cannot remember them I originally paid my canvassers entirely by salary but on the first edition of my London Directory I changed that plan and paid at a fixed price per hundred for all names they brought in to me and a commission upon the amount of orders taken The following year 1864 and succeeding years I paid part salary part [50] commission but I am giving no commission for the Business Directory of 1869 but I gave commission for the Directory of 1868 Before the Defendants book was published I received a few pages of displayed advertisement proofs of their book I received those from Mr J. W. Sharp the person who has made an affidavit in this suit I believe Mr. Sharp had then left the Defendants employ- ment and I will swear I did not then know or believe lie was in Defendants employment He was asking me to give him employment which I subsequently [page 5] did but not immediately and then on another work if Sharp had left the Defendants employment he would as I think honestly have possessed these proofs as they were considered specimens and waste paper I consider Sharp might have honestly communicated these proofs to the conductors of a rival publication as it deprived the Defendants of no advantage they might derive from them their transactions with the advertisers being complete and as the said advertisements contained no copyright and were about to be published to the world at large I know Mr. Frederick Kelly the proprietor of the London Post Office Directory who was the Plaintiff in Kelly and Morris. [10] Question. Is there any arrangement agreement or understanding verbal or written between you and Mr. Kelly respecting "The Business Directory" and "The London Post Office Directory" or either of them or the copyright of them or respecting any proceedings at law or otherwise for the protection of such copyright or for indemnity against any costs connected therewith. Question objected to in this form. Question divided 1st is there any arrangement agreement or understanding between you and Mr. Kelly respecting your respective directories? Answer. There is an agreement between myself and Mr. Kelly but that agree- ment does not affect the matters in question in this suit and therefore I decline [20] to produce it or enter into any particulars regarding it The agreement is in writing. This is called for. I decline to produce it for the reason assigned above. Question. Does it concern "The Business Directory" or "The London Post Office Directory" or either of them? answer. I decline to answer and for the reason already given. Question. 2d. Does it relate to any proceedings for the protection of the property or monopoly of the copy thereof or indemnity against costs of such proceedings? I decline to answer this and for the same reason. [30] 14th July. Question. Has Mr. Kelly any interest in the business Directory? Answer. Mr. Kelly is not interested in the matters in question in this suit or in the result of this suit and further than this I decline to answer. Question. Have you and Kelly subscribed to a fund for any purpose? We may have subscribed to a fund for a South African Mission but we have not mutually subscribed to any fund to my knowledge I mean to say I and Kelly have not subscribed to any fund to my knowledge. Question. Have you and Kelly agreed to raise a fund for any purpose?-No. Question. Is there any agreement or understanding between you and Kelly to [40] appropriate a portion of your profits to any purpose?-No. I don't remember whether Sharp ever showed me capitals or lines supplied to him by the Defendants and I don't think he did I believe he did not When I said yesterday Kellys Directory was usually published about two weeks or ten days before Christmas I meant about two weeks or ten days before the Christmas pre- ceding the year named on the title of the Directory that is to say the 1868 Directory would be published in December 1867 When I said yesterday I invented the provincial appendix I meant that appendix is of places in abridge- ment outside the area of the place the Directory represents had never been used before as a medium of advertising to my knowledge I am acquainted with the [50] Paris Directory that does not contain a provincial appendix in the sense in which I used the term Those names which are inserted there outside the area of Paris are as I believe from the evidence of their circulars inserted free of charge and I believe they are supplied to the Directory by the French consuls in various parts of the world as the chief people in their towns whereas in mine all names are inserted of those who pay or subscribe to the book and no others I have never before seen the Canada Directory now placed in my hands being exhibit W referred to in affidavit of John Walker in this cause [page 6] Question. Is the difference between your invention and the Paris one that they give information gratuitously and you charge for it. Answer. That is one difference the second is they use their own judgment in the names they insert whilst I treat mine simply as a medium of advertising and make no selection I do not remember since Mr. Keith's evidence having been told my canvassers copied from the Post Office London Directory but have no doubt Mr. Keith's statement is true and if I dismissed two canvassers for doing so I have quite forgotten the circumstance A notice was posted up in my office from the commencement that anyone so copying would be dismissed [10] There is no such notice now in the office It was there for several years at least for a year I can't undertake to say that this notice was posted up in my office at any time since May 1863 It was posted in the room in which the canvassers came during the time it was posted but from about 1863 I used another room for the canvassers to come into T he canvassers had access to the notice during the whole compilation of the first edition After that edition was published the can- vassers and others were under no temptation to copy from the Post Office London Directory the notice therefore became unnecessary and I do not know what became of it The price of the complete edition of my Directory for 1868 was 16s. to non- subscribers and 12s. 6d. to subscribers in London To provincial subscribers the [20] charge was 14s. 6d. to Paris subscribers 19 francs to subscribers in the departments of France Switzerland and Belgium 21 francs The price of the complete edition of the 1867 book which did not contain the conveyance section as the 1868 did was 13s. 6d. to non-subscribers in London and l0s. 6d. to subscribers in London Provincial subscribers were charged 12s. 6d. and subscribers throughout France and Belgium 18 francs The price of printing names in capitals was 1s. until the preparation in 1867 of the edition for 1868 when it was raised to 2s. I reduced the commission and pay to canvassers in 1867 and doubled their salary Since yesterday's examination I have made a search for any correspondence between myself and Mr. Jones and myself and Mr. Williams and the result is to [30] the best of my belief I have found all the papers I produce them being called on to do so They consist of Mr. Jones' circular marked J. W. 15 for the Hand- book of Greenwich and a receipt annexed from the Kentish Mercury newspaper for an advertisement headed "Caution to tradesmen" which advertisement I had found it necessary to insert A letter or memorandum marked J. W. 16 dated 10th August 1863 from Mr. Williams with copy of my reply him on the back I produce also a fragment of the Daily Telegraph newspaper of the 2d June 1864 marked J. W. 17 I have not the advertisement in the Kentish Mercury referred to. (No questions asked in re-examination.) [40] J. S. C. MORRIS. ------------------------- Sworn this 13th day of July 1868. JOHN ALEXANDER KEITH of No. 26 High Street Whitechapel clerk in the employ of Edward John Bath of the same place printer cross-examined on behalf of the Defendants on the affidavit of the said John Alexander Keith sworn in this cause on the 22d day of May 1868 and filed on the 25th day of May saith as follows : 1 have seen the Plaintiff's canvassers making extracts in 1862 from Kelly's Post Office Directory for the purposes of the Business Directory of the years 1862-3 and I reported to Mr Morris when the canvassers were immediately stopt and [50] discharged Mr Morris did not in 1862 use cuttings from any other work In subsequent years paid matter was cut out and used for his own Directory as far as I know this was continued to May 1867 when I left his service The extracts above spoken of were not used they were destroyed I have not within a week spoken to Mr Ashbee about the 1862 book nor do I recollect having spoken to [page 7] Mr Ashbee respecting Morris's book within a week and not on last Tuesday I might in promiscuous conversation have done so I did not expect such private conversation would have been reported. Re-examined by Mr Tindell. When I said paid matter was cut out and used by Morris I meant matter that had been paid for to the proprietors of the publications in which they had previously appeared and for the insertion of which in the Business Directory Mr. Morris was also paid. J. A. KEITH. [10] I certify that the evidence contained in this and the preceding 15 sheets of paper was taken before me and was afterwards read over to the respective witnesses and signed by them respectively in the presence of the parties attending. WM. COOPER 3 Hare Court Temple Folios 70 Special Examiner. ------------------------- Filed 17th July 1868. I JAMES HUTCHINGS of Henry Street East Portland Town in the county [20] of Middlesex printer make oath and say as follows: 1. I am a member of the firm of Hutchings and Crowsley. 2. 1 have been the compiler for several years past of a directory called Mary- lebone and St. John's Wood Directory which is printed and publisbed by my said firm. 3. It was and is the practice of my said firm to print in capitals the names of such tradesmen as desired to have their names inserted in a prominent way and who paid us 1s. for each such insertion It was and is mentioned in our prospectus that such charge is made. 4. In the year 1863 we received from the said Plaintiff the letter now produced [30] to me and marked with the letters H a in consequence of which I called on the Plaintiff at his place of business and had a conversation with him at the close of which I told him that I should persist in the course he complained of. 5. I have continued ever since to employ capitals in the manner and upon the terms aforesaid and neither I nor my partner have been in any way interfered with by the said Plaintiff. 6. The volumes now shown to me and marked H b and H c are copies of our said Directory and The paper now shewn to me marked H d is one of our prospectuses. All this I state of my own knowledge the sources of which herein appear. [40] Sworn at No. 179 Marylebone Road in the county of JAMES HUTCHINGS. Middlesex this 22d day of June 1868 Before me CHAS BURROWS A London Commissioner to administer Folios 6 oaths in Chancery. ------------------------- Filed 17th July 1868. I WILLIAM ASHBEE one of the Defendants above named make oath and say as follows : [End of TS document. No more follows]