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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 entitled, in his own right, to maintain this action. He is, as 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.

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 made 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.

The plaintiff has not sustained any substantial pecuniary damages, but a legal injury will be done if the collection, without his consent is interfered with, and he is entitled at least to nominal damages, say $5. The judgment will be with costs, payable by the defendant to the plaintiff. The counterclaim will be dismissed with costs. If any difficulty is found as to form of judgment I may be spoken to on settling the minutes.

Thirty days' stay.

THE ADVISABILITY OF ESTABLISHING A BANKRUPTCY COURT IN CANADA.

In the development of Canadian commerce transcontinental systems of railway transportation have been found. necessary. Similarly under the operation of the banking laws, large banks have been created with their head offices in the monetary centres, and branches spread over the entire Dominion. For the administration of the affairs of insolvent trading corporations, including banks and insurance companies, a Winding Up Act, national in its scope and effect, has been in force for many years. For the administration of maritime laws and the laws relating to patents, trade-marks and copyrights jurisdiction has been conferred upon the Exchequer Court, which is likewise a transcontinental institution.

I have mentioned these transcontinental institutions at the outset for the purpose of suggesting that Canada is now, or is fast becoming a nation, and that the commercial activities of its subjects should not in any way be limited by provincial boundaries. If all the laws respecting commercial matters in Canada were made uniform it would scarcely be denied that the various Legislatures were doing good service to the commercial community. If it be true that uniform commercial laws would be in the interest of Canadian commerce, then it is also true that those laws which relate to insolvency should be uniform throughout the Dominion. Indeed this is the principle which was adopted at Confederation, for under sec. 91, of the British North America Act, exclusive jurisdiction is given to the Dominion Parliament to make laws respecting bankruptcy and insolvency.

It may be well to say a word as to the power of the Dominion Parliament to erect a Bankruptcy Court. Under sec. 101, of the British North America Act, the Parliament of Canada is given power to provide for the establishment of additional Courts for the better administration of the laws of Canada. It has been well settled that under the jurisdiction to enact laws relating to bankruptcy and insolvency, the Dominion Parliament has the power to interfere, not only with property and civil rights (which are exclusively within previncial jurisdiction), but also with procedure within the provinces (a subject also exclusively provincial), so far as a general law relating to bankruptcy and insolvency may affect those particular subjects. It is, therefore clear that the Parliament of Canada has the power to constitute a Court of Bankruptcy having jurisdiction over the entire Dominion.

I have been asked to discuss within the limits of a short paper, the advisability of establishing such a Bankruptcy Court.

All countries have, and in all ages, have had the problem of insolvency ever before them, and they have from time to time endeavoured to apply two principles for its solution. One principle is that upon insolvency all the property of a debtor not exempt from execution belongs to the creditors and should be distributed ratably among them. The other principle, which is correlative to the first is that if the debtor surrenders all his property-if he makes a complete cessio bonorum and has been honest in his dealings, and is not incompetent, he should be given a discharge from all his existing liabilities. These two principles constitute the essential elements of bankruptcy legislation.

The first principle has been adopted by the various provincial Legislatures, and their legislation upon the subject has been held to be within their constitutional powers.

The second principle that of compulsory discharge-is not within the power of the provinces to adopt. The Attorney-General of Ontario v. The Attorney-General for the Dominion of Canada, 1894, A. C. 189. Certain approximations to this second principle the provinces have, however, adopted. They have adopted the principle that an honest, but unfortunate debtor is not to be kept in prison because of his inability to pay his debts. Some of the provinces have also by the passing of exemption laws and Statutes of Limitation, endeavoured to prevent a debtor from being forever

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