The Express.
London, England, 1849-01-17 00:00:00

Hall, and thatdefendaat should advaseethe nursery lands,
and that the defendants should equally partieitiate is the
profit,. This d. readmit did not believe that the ffampreemious
had beim iseproWzi obtained. The defendant, J. T.
Judge, wrote a Sive catalogue of said tupressemes, '
which toes plated hy defendant, and 51 copies, and no
mere, wen Week of and the type was then broken up. Be-
haves that en the 9th day of October, 1848, J. T. Judge,
with • view of Waging the subject of said exhibition to
the notice of the plalattr 'consort and plaintiff, sad of weer-
talnicg whether the said exhibition would be objected to,
sent copies of the catalogue to them and to various other
persons mentioned, who are connected by family and by me-
vice with the plaintiff and has consort. The rest of mid
51 copies, examtlag one given away by J. T. hedgeoiew ere
end remain in the hands of defendants fur the purpose of
these proceedings. On the 13th of October, 1848 defen-
dant was at Barnsley, and while there understood
that Mr. White, the solicitor to plaintiffs, had called upon
his son, and expressed their disapprobation et the teen con-
templated exhibition. Upon becoming aware of this, de-
fendant immediately determined to abandon all Idea of any
exhibition of said etchings whatever, and from that time has
wholly and altogether abandoned the same. Cannot set
forth as to his belief whether toe other defendants intend or
threaten to make • public exhibition of said etchings. He
(Strange) never threatened to make any ergenviag, or copies
of such etchings, or in any manner to publish them. It has
been his anxious wish, as a loyal and dutiful subject, to
comply with the wishes of plamtifi 's consort, not only by
abandoning the exhibition, but also by delivering up every
copy of the catalogue in his possession.
Then comes • series of COMMUIIiCiaOIII between the soli-
citors on both sides, all set forth in fall : • correspondence
nut singular in this, that the longest of the letters do not lay
most ; or in this, that it ended in nothing. There may be a
stage of the cause, at which, possibly, these letters may de-
serve consideration, but for any present purpose they are
immaterial. I, therefore, pus them over.
Having read other passages from the documents before the
court, his Honour continued :
These are the only porgy' that I think it necessary to
read for the purpose of doing justice to either pare y, as to the
mode, in which the defendant Maws his ciao. Now, this is
an answer difficult, I thiak, or impossible to read, without
being per suaded that if the person whose answer it it, did
I with a tam meaning what he said he did, he acted in a very
extraordinary manner. Indeed, that he being by business a
publisher, by residence a Londoner, and of an age so mature,
as tram the answer appears that he was, should have had
the intentions which he ascribes to himself; that he should,
n. vertheless, print and deal with the catalogue or pamphlet
in the way in which he did without any previous or &MOM-
panyit.g communications with the plaintiff or his convert, or
any servant of the plaintiff or his cousin t ; moreover, that he
should have done e° without cbtaisine, or endeavouring to ob-
tain, information as to the origin or knowledge of Middleton's
pmeession, or of Jasper Tomsett Judge's Ode—that he should
also have printed 51 copies, acd only 51 eopit a, and then
break up the type (this last fact cot being represented as
having taken place after the suit or any remonstrance) does
seem to me a combination of circumstances that no man
could have stated without surer:se. I confess that (not
attributing any weight to the omission of any mention of the
place of exhibition, the hours and price of that exhibition—
not forgetting that overt acts are not always sure guides to
the interpretation or discovery of thought, or that a certain
degree, indeed a very considerable degtee, of attention is due
to the answer) the facts not disputed by the de-
leedant, whose answer it is, wcul I, but for what
that answer has shown as to his intention, have
rendered it in my mind (to say the least) a very pro-
table conjecture that he never imagined that public exhi-
bition of these impressions was rationally possible, nor
printed nor dealt with the catalogue for any other purpose
than tied of being (in common language) bought off. That
this was so, I do not of course say, nor is it necessary to
state what, it I had now to try earls an issue, with or with-
out the newer before me, would probably be my conclusion.
Whatever opinion ought to be formed of his conduct, how-
ever, I think the proper and correct inference for soy pre-
sent purpose in the materials before me on this motion is
that the person called Middleton in the answer (hy whatso-
ever processor means he obtained the impressions acquired
from him by Jiver Tomsett Judge), obtained them wrong-
fully es against the plaintiff and his consort; this Jasper
Tomsett Judge eid not gain a better title than Middle-
con had, and that the defendant, the publisher, veined
Ino better title than Jasper Tumult Jades. This 1 say in-
dependently of the circumstance that the injunction of
October is sought to b: displaced only to the partial extent
already noticed, and without regard to the state of the ease
as to the last mentioned petition. Nevertheless, upon the
answer and the four affidavits of October, and the catalogue,
the publisher's counsel contended that the injunction against
him ought so far to be di,solved, heisting that the portion of
it wi.ich they impeach is not supported by any ground of
title that a court of justice can recognise or der I with. Tcey
contended in substance that, so far es the plaintiff cot iplaias
of an offence, it is an offence nut against law, but aenitast
manners. With reference to this paint, Mr. Rowell re-
marked in effect, and I agree with hum, that the order and
well being of lite depend often greatly upon things which are
not within the cognisance of law, and require in a great many
instances no protection or vindication by law. It wu asserted
by a great orator and writer of the last generation, sell per-
haps truly, " That manners are of more importance than
laws, as giving their whole form any colour to our lives."
Still, however, some breaches of good manners are breaches
of law also. There is no difficulty here as to the
former. The question here is as to the latter. The de-
fendant's counsel say that a man acquiring knowledge of
another man's property without his consent, is not, by any
rule or principle which a court of justice can apply ele,wever
secretly the latter may have kept, or endeavoured to ki ep, his
property) forbidden to communicate or publish this know-
ledge to the world ; to inform the world what the property
is, or to describe it publicly, whether orally, or in print, or
writh g. I claim leave to doubt whether, as to property. of
a private nature, which the owner (without infringiug
the rights of another) does retain and keep in
a state of privacy, it is certain that a person
who, without the owner's consent, expressed or im-
plied, requires a knowledge of such property, can lawfuhy
avail himself of knowledge so acquired, and publish without
his concurrence a description of the property. It is pro-
bably true that ouch • pubacation may take place in a man-
ner, and may relate to property of a character, which
(without inquiring unto the lawfufeess of the act) is too
slight to deserve attention. But I can conceive a case in
wbich publicity would affect a man's interest or feelings, or
both. Fur instance, the nature of the unfinished work of en
artist, if prematurely made known to the world, might be
painful and deeply prejudicial ; nor would it be difficult to
suggest other examples. I may here, perhaps, remark in
passing that there are several offences against property
and morals which, though causing most serious pain
aud affliction to individuals, the law refuses to treat
as actionable unless those offences have occasioned
some recognisable injury of • particular kind, which
it designates special damage, but when such injury
has been time the law permits it to be made the subject of
litigation, and to be redressed civilly, to an extent propor-
tioned to substantial justice, and, therefore, frequently mach
beyond the special damage while alone can enable the party
to take any proceeding. It was suggested that to publish
the catalogue of collectors' gems, coins, antiquities, or other
curiosities without his consent, would be to make use of his
property without his consent, and it is true certainly that a
irocetding of that kind might as much embitter one collec-
tor's life as it would pious and flatter 'nether. It might
do the owner damage in the most vulgar sense, for such cata-
logues are much sought after, and fetch high and substantial
prices. They are not merely examples of pain and injury to
mere sentiment; they may be atnd something else be-
sides ; but, as I just now said, and we all know, pain
inflicted in point of sentiment and imagination is not always
disregard.. din courts of justice. 1 allude now to cases of
which those of seduction and slander an instances, and, as
an example somewhat different, to those of trespass. If Le
trawl the damage caused is so small as scarcely to be ap-
preciable, and as would be compensated amply by the
smallest coin, still if it Is accompanied by expressions of
malignity, insolence, affront, er reproach, which by them-
selves could not be made the subject of an action, they may
be considered in a suit for trespass as swelling the
damages to a heavy amount. So la a court of equity,
I apprehend, if a wrongful act is done or threatened, in re-
spect of which the interposition by injunction may take
effect, the discretion with which a court of equity might de-
cline to act might probably be influenced by considerations
not sufficient in themselves to warrant judicial interference
nor do I suppose that Lord Eldon, in " Gee c. Pritchard,
"
or elsewhere, meant to lay down a di erne
rule. The arm-
logy, or supposed analegy, upo which tho plaintiff's counse
appeared mainly to rely, was that of manuscripts: and as
the law and various authorities on the subject of unpublished
writings were canvassed during the argument at the
bar, it may not be quite a waste of time to
pause awhile upon that particular subject. The de-
cision of the House of Lords in " Denaldion v. Becket,"
is not inconsistent with the answer of the majority of the
judges to the first question put to them—namely, ' whether
at common law the author of any book or literary coulee-
' sition had the sole right of first printing and publishing the
same for sale, and might bring an action against any eerson
who printed, published, and sold the same without his con-
sent.' The answer of the majority of the judges was in the
affirmative, for reasons which I believe are generally and
universally correct, and agreed to be correct. There were
earlier, as there have been later, authorities to the same
effect. In " Jenson v. Walker," decided in 17:4, the
point seems treated as clear. Lord Hardwicke, in a report
of the case given by Mr. Swanton, says " It is immaterial
whether the question vises on letters patent or geceral pee-
-1 perty, both are to convey a right or claim. I will only say
that there is no determination of the general point. Cases of
pirating copies from unpublished books do not come up to
the present case; 041 were never made publics jure, but are
as much the author's as anything else in his closet. Such
are the cases of Mr. Webb, Mr. Forester, and Dr. Burreet's
treatise de statu mortuornm, in Lord Macelestiele'e time.
The strongest thing is what is said by. the judger in Bey-
tah,iodur'oe.tcatierie
coca ion
to:
rthmeggneionertalh.nsgainhte."
poLinotr,d
end is
" Southey ti St 'Tweed " (2 )(aired*, 407), he eape
" It this publication is an innocent one, I apprehend that I
am authorised by decided cases to say that, whether the
author did or did not intend to make a profit by its publica-
don, he bas a right to an injunction to °revert any other
person from publishing it." Nor is this right to protect in-
nocent writings from being published without the consent of
the &utile', confined to those which he has kept in a state of
entire privacy and secrecy before the invasion complained of.
The right is not lost by partial sod limited publication, not
made with a view to general publication, as is shown by Kee-
ra! cams, particularly that of "Lord Clarend ra's History" and
others,smonget which is included the use of the pater written
by Or. Burnet. " Macklin te Bache:than" bears strongly on
this point. Mr. Macklin had allowed his popular little
drama, whilst remaining in manuscript, to be perfernied
several times. There are else the cases of " Colman o. War-
ree," and the case of " Marino kadiero" (Murray a. Effis-