were now asked for, in the terms of the injunction sought to be dissolved; the case would stand thus :-The affidavits filed before the answer shew that the etchings in question were the works of the plaintiff, and retained as his private property; not published or intended for publication, some of them only having been given to private friends: that the collection described in the catalogue could only have been made by impressions surreptitiously and improperly obtained: that the "catalogue, and the descriptive and other remarks therein contained, could not have been compiled or made except by means of the possession of the several impressions of the said etchings so surreptitiously obtained as aforesaid." By the last affidavit of Mr. White, a fact was made known to the defendant that upon one occasion some of the plates were sent to a Mr. Brown, a printer at Windsor, for the purpose of having some impressions taken for private use; and that the plates and all the impressions so ordered, were returned by Mr. Brown.

The answer does not in any manner question, qualify, or vary the case so made; but simply states that the defendant did not know or believe that the copies had been improperly obtained; and that Judge, who was in the possession of them, did, as the defendant believed, purchase them of one Middleton; but states nothing as to how Middleton obtained them, and states nothing as to Brown, so called to his attention by Mr. White's affidavit.

The result is, that the case stated by the affidavit is not met by the answer, and the answer does not set up any title adverse to the case so made. But in this state of things, the defendant insists that he is entitled to publish a catalogue of the etchings; that is to say, to publish a description or list of works or compositions of another, made and kept for the private use of that other, the publication of which was never authorized, and the possession of copies of which could only have been obtained by surreptitious and improper

means.

It was said by one of the learned counsel for the defendant, that the injunction must rest on the ground of property or breach of trust. Both appear to me to exist in this

case.

The property in an author or composer of any work, whether of literature, art, or science, such work being unpublished and kept for his private use or pleasure, cannot be disputed after the many decisions upon which that proposition has been affirmed or assumed. I say "assumed" because in most of the cases which have been decided, the question was not as to the original right of the author, but whether what had taken place did not amount to a waiver of such right: as in the case of letters, how far the sending of the letter-in the case of dramatic composition, how far the permitting performance-and in the case of Mr. Abernethy's Lectures, how far the oral delivery of the lecture-had deprived the author of any part of his original right and property: a question which could not have arisen if there had not been such original right or property. It would be a waste of time to refer in detail to the cases on this subject.

If then such right and property exist in the author of such work, it must so exist exclusively of all other persons. Can any stranger have any right or title to, or interest in that which belongs exclusively to another? And yet this is precisely what the defendant claims; although by a strange inconsistency he does not dispute. the general proposition as to the plaintiff's right and property; for he contends that admitting the plaintiff's right and property in the etchings in question, and as incident to it the right to prevent publication or exhibition of copies of them, yet he insists that some persons having had access to certain copies (how obtained I will presently consider) and having from such copies composed a description and list of the originals, he, the defendant, is entitled to publish such list and description; that is, that he is entitled, against the will of the owner, to make such use of his exclusive property.

It being admitted that the defendant could not publish a copy, that is an impression, of the etchings, how in principle does a catalogue, list, or description differ? A copy or impression of the etchings could only be a means of communicating knowledge and information of the original; and does not a list and description do the same? The means are different, but the object

and effect are similar; for in both the object and effect is to make known to the public, more or less, the unpublished works and compositions of the author, which he is entitled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others.

Cases of abridgments, translations, extracts and criticisms of published works have no reference whatever to the present question. They all depend on the extent and right under the acts with respect to copyright, and have no analogy to the exclusive right of the author in unpublished compositions, which depend entirely on the common law right of property. A clerk of Sir John Strange having, whilst in his employ, made an abridgment of such of his manuscript cases as related to evidence, was restrained by Lord Hardwicke in 1754 from publishing it, the cases themselves being then unpublished. Upon the first question therefore, that of property, I am clearly of opinion that the exclusive right and interest of the plaintiff in the compositions and works in question being established, and there being no right or interest whatever in the defendant, the plaintiff is entitled to the injunction of this Court to protect him against the invasion of such right and interest by the defendant, which the publication of any catalogue would undoubtedly be.

But this case by no means depends solely on the question of property; for a breach of trust, confidence, or contract itself would entitle the plaintiff to the injunction. The plaintiff's affidavit states the private character of the work or composition, and negatives any licence or authority for publication, (the gift of some of the etchings to private friends not implying any such licence or authority,) and states distinctly the belief of the plaintiff that the catalogue, and the descriptive and other remarks therein contained, could not have been compiled except by means of the possession of the several impressions of the etchings surreptitiously and improperly obtained. To this case no answer is made; the defendant saying only that he did not at the time believe the etchings to have been improperly obtained, but not suggesting any mode by which they could have

been properly obtained, so as to entitle the possessor to use them for publication.

If, then, these compositions were kept private, except as to some given to private friends, and some sent to Mr. Brown for the purpose of having certain impressions taken, the possession of the defendant, or of his partner Judge, must have originated in a breach of trust, confidence, or contract in Brown, or some person in his employ, taking more impressions than were ordered, and retaining the extra number; or in some person to whom copies were given, which is not to be supposed, but which, if it were the origin of the possession of the defendant, would be equally a breach of trust, confidence, or contract, as was considered in the case of The Duke of Queensberry v. Shebbeare; and upon the evidence on behalf of the plaintiff, and the absence of any explanation on the part of the defendant, I am bound to assume that the possession of the etchings or engravings on the part of the defendant or Judge has its foundation in a breach of trust, confidence, or contract, as Lord Eldon did in the case of Mr. Abernethy's Lectures as reported in 3 Law Journ. Rep. Chanc. 319; and upon this ground also I think the plaintiff's title to the injunction sought to be discharged fully established.

The observations of Vice Chancellor Wigram, in Tipping v. Clarke (1), are applicable to this part of the case. He says, "Every clerk employed in a merchant's counting-house is under an implied contract that he will not make public that which he learns in the execution of his duty as clerk. If the defendant has obtained copies of books it would very probably be by means of some clerk or agent of the plaintiff; and if he availed himself surreptitiously of the information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be perImitted to avail himself of that breach of contract."

In this opinion I fully concur; and I think that this case-the case supposed by Sir James Wigram-has actually arisen, or must from the evidence be assumed to have arisen, in the present; and the conse

(1) 2 Hare, 393.

quence must be what Sir James Wigram thought would follow. Could it be contended that the clerk, although not justified in communicating copies of the accounts, would yet be permitted to publish the substance and effect of them? In that, as in this case, the matter or thing of which the party had obtained knowledge being the exclusive property of the owner, he has a right to the interposition of this Court to prevent any use being made of it; that is to say, he is entitled to be protected in the exclusive use and enjoyment of that which is exclusively his own.

This was the opinion of Lord Eldon, expressed in the case of Wyatt v. Wilson, in the year 1820, respecting an engraving of George the Third, during his illness; in which, according to a note with which I have been furnished by Mr. Cooper, he said "If one of the late King's physicians had kept a diary of what he had heard and seen, this Court would not, in the King's lifetime, have permitted him to print or publish it." The case of Sir John Strange's manuscripts is also applicable to this point.

It

Some minor points were raised at the bar, to which I will shortly advert. was contended there ought not to be any injunction until the plaintiff had established his title at law, and cases were referred to, in which it was supposed I had laid down rules establishing such a proposition. The cases referred to are cases in which the equitable jurisdiction arose from some legal title, and was exercised solely for the purpose of protecting the party in the enjoyment of such legal title, and have no application to cases in which this Court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this Court considers and treats as a wrong, whether arising from violation of unquestioned right or from breach of trust, confidence, or contract, as in the present case, and in the case of Mr. Abernethy's Lectures.

But even in the cases so referred to, I have always held that it was for the discretion of the Court to consider whether the defendant might not sustain greater injury from an improper injunction than the plaintiff from delay in granting it. In the present case, where the privacy is the

right invaded, the postponing of the injunction would be equivalent to denying it altogether. The interposition of this Court in these cases does not depend on any legal right; and to be effectual, it must be immediate.

It was then observed that the injunction was too extensive, as it applied to any catalogue of the etchings in the bill mentioned, and the plaintiff had shewn a title to only some of the etchings there mentioned. If the defendant had any interest in this matter, the objection would deserve consideration; but it is clear he has none, being already under an injunction as to all those etchings to which the plaintiff has not shewn a title in this case; so that while the other injunction continues he could derive no benefit whatever from any alteration in the terms of this injunction; and if any such alteration were made, it would not affect the question of costs, that not being the object of this motion; which must, therefore, be refused, with costs.

Costs-Administration-Mortgagee.

A fund was settled in trust for A, B, and others. B. mortgaged his share for more than it was worth and died intestate. A suit was instituted by A. against the mortgagee of B's share, and the other persons interested in the fund, for the purpose of obtaining a division of it. A. cited the next-of-kin of B. in the ecclesiastical court, whereupon C. appeared, and took out administration to B, and was afterwards made a party to the suit in that character:-Held, that, as the ceedings in the ecclesiastical court were incurred only for the purpose of making the suit complete, the costs attending them ought to be borne by the general fund.

pro

A fund stood settled in trust for the children of Mr. and Mrs. Cotton. Caroline Amelia Cotton, one of these children, mortgaged her share for more than it was worth, and died intestate. This suit was instituted by some of the parties interested in the fund against the mortgagee of the share and the other parties entitled to the fund,

upon the death of Sir John Morshead the lands in Cornwall and Surrey, comprised in the term of 1,500 years, became vested in Sir Frederick Morshead, his eldest son, for an estate of inheritance, subject to the term. In 1816 an agreement was come to between Lady Morshead and Sir F. Morshead for the sale of the settled estates, and that, out of the produce of the sale, 10,000l. should be invested in the name of trustees on government or real securities at interest for Lady Morshead for life, and at her death for the parties entitled thereto.

In April 1819 a correspondence was opened between Messrs. Hayes & Budd, as the solicitors for the Morshead family, on the one part, and Sir C. Mill and Mr. Daman, his solicitor (since deceased) on the other part, with a view to the arrangement, upon which the deed of August 1819 was afterwards executed. The effect of that correspondence is fully noticed in His Honour's judgment.

The estates were sold accordingly. The surviving trustee of the 1,500 years term had died intestate, and a limited administration of the term was granted to the defendant Hayes. The 10,000l. was paid to him as trustee of the term, and that sum of 10,000l., by the direction of Lady Morshead, Sir Charles and Lady Mill, and John Morshead, was invested in the purchase of 9,5391. 4s. 10d. Navy 5 per cent. annuities.

By a deed, dated the 28th of August 1819 (but not executed by the parties until some months afterwards) and made between Lady Morshead of the first part, Sir Charles Mill and Selina his wife of the second part, John Morshead of the third part, the defendant Hayes of the fourth part, Sir F. Morshead of the fifth part, and Edward Morshead and T. H. Budd of the sixth part, and reciting the marriage settlement of Sir John and Lady Morshead, the appointment of one moiety of the 10,000l. to Lady Mill absolutely, the death of Sir J. Morshead, the agreement for the sale of the settled estates, and that out of the proceeds of such sale 10,000l. should be invested in government securities in the names of trustees in trust for Lady Morshead for life, and after her death in trust for the parties entitled thereto, and the

investment of the said sum of 10,000l. in the sum of 9,539l. 4s. 10d. Navy 5 per cent. annuities, it was witnessed "between all parties to these presents, and particularly the said Dame Elizabeth Morshead, Sir Charles Mill and Dame Selina his wife, do hereby severally agree, declare, and direct, that the said Sir Charles Mill and Dame Selina his wife, John Morshead, and Thomas P. Hayes, and the survivors, &c. shall be possessed of and interested in the sum of 9,539l. 4s. 10d. Navy 5 per cent. annuities, so purchased with the said sum of 10,000l. standing in their names in the books of the Bank of England, upon the trusts hereinafter declared concerning the same, that is to say, upon trust to suffer Dame Elizabeth Morshead and her assigns to receive and take the yearly proceeds for her life, and after her decease upon trust to assign and transfer one undivided moiety of the sum of 9,5391. 4s. 10d. to the said Dame Selina Mill, her executors, administrators, or assigns, to and for her or their own absolute use and benefit, and to transfer the other undivided moiety to John Morshead, his executors, administrators, or assigns." This deed, which did not notice the effect of the deed of January 1800, by which the 5,000l. became the absolute property of Sir Charles Mill, was executed by all the parties.

In 1835 Sir Charles Mill died, and Lady Mill, his widow, afterwards married the defendant Ashurst. From 1819, the date of the deed, to the death of Lady Morshead, the dividends were paid to Lady Morshead. Shortly after her death disputes arose whether Mrs. Ashurst (late Lady Mill) was or was not entitled to one moiety of the Navy 5 per cent. annuities, and whether that sum did not form part of the estate of Sir Charles Mill. On the 4th of November 1845 the bill was filed in which Mr. Ashurst and his wife were plaintiffs, against the trustees of the deed of August 1819, and other necessary parties, claiming a moiety of the Navy 5 per cent. annuities, under the declaration of trust contained in the deed of August 1819. The defendants, by their answer, contended that the declaration of trust in the deed of August 1819, was made by mistake, and that the said moiety formed part of the estate of Sir Charles Mill.