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HIGH COURT OF JUSTICE, ONTARIO.

JUDGMENT OF HON. MR. JUSTICE BRITTON.

JANUARY 9TH, 1913.

LINDSEY v. LE SUEUR.

Trial at Toronto without a jury.

Hellmuth, K.C., and Moorhouse, for the plaintiff.
Shepley, K.C., and Hill (Ottawa), for the defendant.

BRITTON, J.-This action is to compel delivery by the defendant to the plaintiff, of certain documents and extracts and copies of documents which the defendant now has, and which he obtained from the collection of the late William Lyon Mackenzie, and for an injunction restraining the defendant from publishing or making public any of these documents or copies of or extracts from them.

The late Charles Lindsey was the son-in-law of the late William Lyon Mackenzie.

The plaintiff, George G. S. Lindsey, is the son and sole executor of Charles Lindsey.

Charles Lindsey was the owner of a large and valuable collection of books, papers, manuscripts, letters, etc., which had been the property of William Lyon Mackenzie. Prior to February, 1906, the publishing firm of Morang & Company had determined to have written for publication and sale, books on "The Makers of Canada."

To carry out this purpose Morang & Co. chose to include William Lyon Mackenzie in the series, and they employed the defendant to write that book.

In February, 1906, Charles Lindsey resided with the plaintiff, and at that time the defendant sought and obtained an introduction to the plaintiff, and requested to be allowed access to the Mackenzie collection. It is alleged that the defendant represented to the plaintiff that he, the defendant had undertaken to write the life of Mackenzie for the Morang & Company series; that the life so written would be to the satisfaction of Morang & Company; and that it would be published in the series mentioned.

It is further alleged that the defendant represented that the work would be entered upon by him in sympathy with the character he was to depict, exhibiting in the book Mackenzie as one of "The Makers of Canada." Upon this representation, the plaintiff, acting for his father, allowed the de

fendant free access to the collection to make copies of and extracts from documents, and, generally, to obtain such information as was available.

The defendant for months resided in the plaintiff's house, and while there, obtained the information sought.

The defendant completed his manuscript, sent it to Morang & Company, and it was rejected.

The plaintiff says that by necessary implication from what took place, the agreement was that the defendant, in writing such life of Mackenzie, as one of the class mentioned, would make fair use of the material he found. The plaintiff charges that the defendant did not do so, and for that reason the life written by defendant was partizan and unfair; and in consequence thereof, the manuscript was rejected.

I have spent a great deal of time in reading with care most of the evidence, given at great length upon the trial of this action. No useful purpose will be served by my referring at length or quoting from the evidence.

It seems to me clear, that the plaintiff, and the late Charles Lindsey supposed that the defendant intended to write of William Lyon Mackenzie as one of the men in Canadian history, who can fairly be called, speaking colloquially, one of the "Makers of Canada." The conduct of the defendant and what he said, warranted the plaintiff and Charles Lindsey in so thinking. I must find as a fact, that the defendant gave the plaintiff and Charles Lindsey to understand that the views and feelings of the defendant towards Mackenzie were friendly, that his attitude in presenting Mackenzie to the public was a fair one, that he had no bias against Mackenzie, and that he had no feeling or opinion which would prevent him, as a writer, from truly presenting the facts and circumstances of Mackenzie's life and character. The defendant in my opinion, intended that the plaintiff and Charles Lindsey should believe as they did in reference to defendant's feeling and attitude.

At the time of defendant's arrangement with the plaintiff, the defendant did hold strong views against Mackenzie. At that time the defendant intended to write the life of Mackenzie on other than "conventional lines." He intended to write of Mackenzie, not as one of the makers of Canada in the general acceptation of that term, but as a "aller down," as was stated during the trial.

I deal with this matter simply as a matter of contract and good faith between the parties, not expressing any opinion as to whether the defendant is right or wrong in his estimate of Mackenzie. It does not, so far as it affects this case, except as a matter of good faith on the part of the defendant, make any difference whether Mackenzie was a man of high aims and unselfish purposes, contending against real wrongs permitted by bad laws and perpetrated by unjust administration; or a mere adventurer, willing to point where he would not lead, a mere inciter to rebellion against the laws that were just, and administered by men able and honest.

I quite recognize that the biographer should write truly of his subject. He should not, as defendant said he would not write any fairy tale or Jack the Giant Killer story. The defendant could write truly of the life selected, and draw such inferences as might please him, from the facts, and any quarrel with his inferences would be in the nature of fair discussion. But this is a question of how the defendant came to get possession of what is now the plaintiff's property, and of the use he made of it as distinguished from the use the plaintiff supposed the defendant would make of it, and as distinguished from the use the defendant led the plaintiff to think would be made of it, and as to the use the defendant now proposes to make of it.

If the defendant obtained possession of, or access to, property now belonging to the plaintiff, by misrepresentation, or by concealment of facts he was bound to disclose, then he must not further use that property.

I am of opinion, upon the evidence, that the defendant made use of the Mackenzie collection of books and papers other than was in accord with the understanding between him and the plaintiff and Charles Lindsey.

The use made was contrary to the wish, and contrary to what was known to be the wish of the plaintiff, and contrary to the wish of the plaintiff's father. It is inconceivable upon the facts that either Charles Lindsey or the plaintiff would have permitted access to the Mackenzie papers had either known or supposed that such manuscript as the defendant produced would have resulted. It is plain to me that the defendant knew that he could not have obtained access to the collection had he revealed his true feelings, or declared his real intention.

No question of copyright is involved. It is a question of getting access to the house of another and using the property therein for personal purposes different from what was consented to by the owner.

It has been held that to permit publication of musical compositions in volume form "did not amount to a permit to publish one by one, in a serial form."

In re Jude's Musical Compositions, L. R., 1907, 1 Chy.

D. 651.

It is not the right of a party to an action, who has obtained access to the papers of his opponent for use in the action, to make the papers public.

Just before defendant's arrangement with Morang & Company, the life of William Lyon Mackenzie had been written by Mr. Hughes for the series mentioned.

The criticism by the defendant upon the work of Mr. Hughes was severe. It was in part, at least, instrumental in having the work rejected by Morang & Company. The defendant, I think, intended that rejection should result.

The language used in correction was such as to evince irritation on the part of defendant at times when words of praise or commendation of William Lyon Mackenzie were used. The defendant concealed from Charles Lindsey and from the plaintiff, the fact of his criticism of the work of Mr. Hughes

Whether the criticism was just or not-and assuming that the defendant thought it just-he should have informed Charles Lindsey or the plaintiff of it. The plaintiff is en

titled, in his own

I have more than once stated, now the absolute owner of the Mackenzie collection, and is seeking to protect it from its unauthorized use by the defendant.

right, to maintain this action. He is, as

The plaintiff is not suing for, and is not entitled to recover damages, if any, that accrued to Charles Lindsey in his lifetime. It it open to the plaintiff to say, if according to the facts, that the defendant improperly obtained access to the collection; that, when access obtained, the defendant Imade an unfair use of the privilege, and that the purpose for which he obtained access having been served, the defendant is not entitled to further deal with the extracts and copies made. It is not a question of damage to Charles Lindsey, or of the survival of any right of action he had.

VOL. XXXIII. C.L.T.-3

Charles Lindsey did not so deal with this collection, by contract, or consent or otherwise as to prevent plaintiff now asserting his right to guard it. Charles Lindsey permitted the defendant to use the collection to assist defendant in writing a book to be published by Morang & Company. That book has not been published by them, and will not be. All negotiations between the defendant and that firm are at an end. The defendant has no right, as against the plaintiff, to have a book, the one written, or another book, using the extracts or copies from plaintiff's collection, published elsewhere. The statement of defence mentions the action of defendant against Morang & Company, reported in appeal, 20 O. L. R. 594, and states in substance, that the plaintiff took part in that for Morang & Company. In that action very likely evidence was given, the same in part as was produced by the plaintiff on the trial of this action. No doubt the plaintiff herein sympathized with Morang & Company, and possibly assisted in the defence. That is not material. The plaintiff was not a party to that action. There is no estoppel.

The plaintiff, before action, demanded from the defendant, a return of the extracts and copies, and an assurance that he would not publish them or make use of information derived from the collection. The defendant refused to deliver up the extracts and copies, and expressed his intention of publishing them in book form. In fact, the defendant by counterclaim, alleges that shortly before the commencement of this action, he was entering into arrangements for the publication of his book, and claims damages because of plaintiff's interference. As to the "information " said to have been obtained by defendant from the collection, it will be difficult, if not impossible for even the defendant at this stage to say just what particular fact was learned there instead of from the book of Charles Lindsey or some other writer, or elsewhere.

1. The plaintiff is entitled to an order requiring the defendant to deliver up to the plaintiff all of the extracts from and copies of any documents in the William Lyon Mackenzie collection mentioned in the statement of claim.

2. An order restraining the defendant, his servants and agents, from publishing or causing to be published any book which contains any of said extracts or copies, or that contains information avowedly obtained from the Mackenzie collection.

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