interest in it; therefore you shall not print it for profit. Now, if there is an express contract--for instance, if Mr. Abernethy says, "Gentlemen, all of you who attend and pay five guineas for attending my lectures, may take notes of what I say, but let it be understood that you shall not print for profit;" then in that case I should not have the least difficulty in saying, if any student afterwards did think proper to publish for profit, that there is hardly a term which this Court would think too harsh for him; and it would restrain him. There is another ground, which is, whether, looking at the general nature of the subject, it is not very difficult to say, that there is not a contract which would call upon the Court to restrain the parties who hear the lectures from publishing the notes they may have taken-they may make whatever use of them they please, but they ought not to publish them. If an express contract exists, or if any contract is to be implied, either contract would be the ground of an action for a breach of contract. With respect to trust, the question here would be, whether there is not an implied trust with respect to the student himself? One thing is quite clear, that if those lectures have been published from short-hand writer's notes, they have been published from short-hand writer's notes taken by some student, or from short-hand writer's notes taken by some intruder into the lecture room; for I do not see how it is possible that they could have been taken otherwise. If there is either an implied contract on the part of the student or a trust, and if you can make out that the student has published, I should not hesitate to grant the injunction. With respect to the stranger, if this Court is not to be told (and certainly it has no right to compel the parties to tell) whether the power of giving the oral lectures to the public was derived from a student or 1824. ABERNETHY v. HUTCHINSON. Judgment. 1824. not, I think it very difficult to tell me that that should not ABERNETHY be restrained which is stolen, if you would restrain that which is a breach of contract or of trust. υ. HUTCHINSON. Judgment. Upon the whole, taking this case as it now stands as a case simply of oral lectures, it must be tried whether it is legal to publish them or not. Upon the question of property in language and sentiments not put into writing, I give no opinion, but only say that it is a question of mighty importance. At present, therefore, I must refuse the injunction; but I give leave to make this very motion on the ground of breach of contract or of trust. 1825. Statement. Afterward, the bill was amended by the introduction of allegations, that no persons had a right to attend the lectures, except those who were admitted to that privilege by the lecturer; that it had always been understood by him, and those who preceded him in the office, and those who attended the lectures, that the persons who so attended did not acquire, and were not to acquire, any right of publishing the lectures which they had heard; but that the Plaintiff and his predecessors, respectively, had and retained the sole and exclusive right of printing and publishing their respective lectures, for his and their own respective benefit; that there was an implied contract between the Plaintiff and those who attended his lectures, that none of them should publish his lectures, or any part thereof: that the Defendants had been furnished with the copy of the lectures which they had printed, through the medium of some person who had attended the lectures under Mr. Abernethy's above-mentioned permission; and that it was a breach of contract or trust in such person so to furnish the copy, and in the Defendants to print and publish the same. These allegations being verified by the affidavit of the Plaintiff The Solicitor-General renewed his motion before his Lordship for an injunction, and contended that there was an implied contract between the lecturer and his pupil; that the latter bought of the former simply a right to hear, and probably to write down his lectures, but not to publish them; that the pupil did not purchase the lecturer's science, that he might sell it again; and that there could not be two copyrights. Mr. Abercromby, Mr. Rose, and Mr. Duckworth were on the same side. Mr. Horne, Mr. Shadwell, and Mr. Brougham opposed the motion. 1825. ABERNETHY v. HUTCHINSON. Argument. On June 17th the LORD CHANCELLOR stated, that, where the lecture was orally delivered, it was difficult to say that an injunction could be granted upon the same principle upon which literary composition was protected; because the Court must be satisfied that the publication complained of was an invasion of the written work; and this could only be done by comparing the composition with the piracy. But it did not follow, that, because the information communicated by the lecturer was not committed to writing, but orally delivered, it was, therefore, within the power of the person who heard it to publish it. On the contrary, he was clearly of opinion, that whatever else might be done with it, the lecture could not be published for profit. He had the satisfaction now of knowing, and he did not possess that knowledge when this question was last considered, that this doctrine was not a novel one; and that this opinion was confirmed by that of some of the Judges of the land. He Judgment. 1825. ABERNETHY v. HUTCHINSON. Judgment. was, therefore, clearly of opinion, that, when persons were admitted as pupils or otherwise to hear these lectures, although they were orally delivered, and although the parties might go to the extent, if they were able to do so, of putting down the whole by means of short-hand, yet they could do that only for the purposes of their own information, and could not publish for profit that which they had not obtained the right of selling. There was no evidence before the Court of the manner in which the Defendants got possession of the lectures; but as they must have been taken from a pupil, or otherwise in such a way as the Court would not permit, the injunction ought to go upon the ground of property; and although there was not sufficient to establish an implied contract as between the Plaintiff and the Defendants, yet it must be decided, that, as the lectures must have been procured in an undue manner from those who were under a contract not to publish for profit, there was sufficient to authorise the Court to say, the Defendants shall not publish. He had no doubt whatever that an action would lie against a pupil who published these lectures. How the gentlemen who had published them came by them, he did not know; but whether an action could be maintained against them or not, on the footing of implied contract, an injunction undoubtedly might be granted; because, if there had been a breach of contract on the part of the pupil who heard these lectures, and if the pupil could not publish for profit, to do so would certainly be what this Court would call a fraud in a third party. If these lectures had not been taken from a pupil, at least the Defendants had obtained the means of publishing them, and had become acquainted with the matter of the lectures, in such a manner that this Court would not allow of a publication. It by no means followed, because an action could not be maintained, that an injunction ought not to be granted. One question had been, whether Mr. Abernethy, from the peculiar situation which he filled in the hospital, was precluded from pub 1825. lishing his own lectures for his profit; but there was no evidence before the Court that he had not such right. ABERNETHY Therefore, the Defendants must be injoined in future. The only question remaining was, whether the delay which had taken place in renewing the application was a ground for saying that the injunction ought not to go to restrain the sale of such of the lectures as had been printed in the interim. His Lordship's opinion was, that the injunction ought to go to that extent, and to include the lectures already published. v. HUTCHINSON. Judgment. MINTOSH v. THE GREAT WESTERN RAIL WAY COMPANY. 1849. Feb. 9th. A MOTION had been made before the Vice-Chan- Defendants cellor Knight Bruce, for the production of documents admitted by the Defendants' answer to be in their possession. The Vice-Chancellor ordered the production of some of them; but, as to other documents, he directed the motion to stand over. The motion was now renewed, by way of appeal, before the Lord Chancellor, for the purpose of obtaining the production of all the documents. The Defendants, the Great Western Railway Company, stated, in the beginning of that they could not answer furappeared there their answer, ther than as in, and in the various documents which were set forth in the schedule, and which they offered to produce. In the latter part of the answer they admitted the possession of various documents, but and their engineer, Mr. Brunel, and their secretary, Mr. Saunders, had put in a joint answer, which began by stat- insisted that ing, as follows: some of them were privileged communications, and that they were, therefore, not bound to produce them :-Held, that, after the offer of production in the beginning of the answer, the Plaintiff was entitled to the production of all the documents mentioned in the schedule. |