receives it, must take it tainted and infected with the undue influence and imposition of the person procuring the gift; his partitioning and cantoning it out amongst his relations and friends will not purify the gift and protect it against the equity of the person imposed upon. Let the hand receiving it be ever so chaste, yet, if it come through a corrupt, polluted channel, the obligation of restitution will follow it." Suppose a party is aware of a defect in a title, he may be restrained from making it public: Cholmondeley v. Clinton (a). If a party engages to publish a certain number of copies of a book, he is not justified in keeping back any copies and selling them for his own benefit. As to the conduct of the parties, if, as they allege, they do not wish to publish the Catalogue, why do they raise this question before the Court? And if they wished to ascertain whether her Majesty's permission might be obtained for the publication, why was it necessary to forward catalogues to the King and Queen of the Belgians? The Catalogue also, which announces that the exhibition is to take place, alleges, that the autographs are to be given away "by permission;" which is a deception on the public, who would necessarily infer, that the exhibition, and the publication of the Catalogue, and the giving away of the autographs, had all received the sanction of the Queen and Prince Albert. Mr. Russell, in reply Admitted the right which an author has in his unpublished manuscripts; but insisted that there was no case which carried the law so far as to hold that an abridgment VOL. I. (a) 19 Ves. 261. L. C. 1849. PRINCE ALBERT v. STRANGE. Argument. 1849. PRINCE v. STRANGE. might not be made of an unpublished manuscript without the consent of the owner. If a person read a poem to his friends, they would not be precluded from saying they had heard such a poem. [The LORD CHANCELLOR.-In Abernethy's case, Lord Eldon required affidavits that there was no publication-no dedication to the public-except by the Lectures, which was only a qualified publication.] That would be a case of contract or of injury to property. The etchings were not injured by the description given of them by this Catalogue. If a surveyor obtained knowledge of the levels of a person's property against his will and by committing a trespass, could the Court restrain him by injunction from using that knowledge for the purposes of a railway, and to the annoyance of the owner of the land? As to any deception practised on the public by alleging that the autographs were given "by permission," the Court would not interfere upon that ground. In Clark v. Freeman (a) the Court would not restrain a party from selling pills which were falsely alleged to be Sir James Clark's pills. The Court would not interfere to prevent a man from selling his own articles, because he was deluding the purchaser to think they were the articles of somebody else. [The LORD CHANCELLOR.-Sir James Clark was not himself the maker or seller of any pills. If he had been, he would probably have got an injunction.] Feb. 8th. Judgment. The LORD CHANCELLOR: The importance which has been attached to this case arises entirely from the exalted station of the Plaintiff, and (a) 17 Law Journal, Chanc., 142. The cannot be referred to any difficulty in the case itself. precise facts may not have occurred before; but those facts clearly fall within the established principles, and the application of them is not attended with any difficulty. The right of the Plaintiff to an injunction restraining the Defendant from exhibiting, copying, or in any manner publishing, or parting with, or disposing of any of the etchings in question, is perfectly clear from the facts of the case, and is not now disputed by the Defendant; and the only question I have to decide is, whether, this right being so established and admitted, the Defendant is to be permitted to publish the Catalogue in question, in which he announces his intention of exhibiting the etchings, which he is so restrained from doing; and in which he announces to the public that "every purchaser of this Catalogue will be presented (by permission) with a fac-simile of the autograph of either her Majesty or of the Prince, engraved from the original, the selection being left to the purchaser." Now, as permission so to accompany each Catalogue sold, necessarily implies permission to sell the Catalogue itself, the case is complete of an intention to sell under a false representation that the whole transaction is not only with the knowledge but with the approbation of the Plaintiff;-a falsehood which could only have been resorted to for the purpose of imposing on the public. All manufacturers are, as a matter of course, restrained from selling their goods under similar misrepresentation, tending to impose on the public and to prejudice others; and it seems singular that the Court should be asked to dissolve the injunction, which prevents the Defendant from selling or publishing this Catalogue. It is true, however, that, as the injunction extends to restrain the Defendant from publishing "any work being or 1849. PRINCE ALBERT v. STRANGE. Judgment. 1849. PRINCE V. STRANGE. purporting to be a catalogue of the etchings," it is to be considered whether, under the circumstances, the Defendant has any right so to do. And, in considering this, I shall not regard the fact that the Defendant submits to the Judgment. injunction against exhibiting, publishing, or parting with the etchings described in the Catalogue, and that the other Defendant, the author and compiler and joint proprietor with the Defendant of the Catalogue, as the Defendant states in his answer, has submitted to the whole of the injunction from part of which the Defendant asks to be released. Let it be supposed that an injunction 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 authorised, 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 in 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 letters; in the case of dramatic composition, how far the permitting performance; and, in the case of 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. 1849. PRINCE v. STRANGE. Judgment. |