L«W bBoksellers f5l U* KASSAUSTN.y AT i?:;^ f 1|:>r.4 \\ (Earmii IGam irlinnl ICtbrary iUttrahall Eqitttg OInllcrtinu Oitft of £• 3/. iHarHball, IL'.IC. iU. uiaa CORNELL UNIVERSITY LIBRARY 924 084 263 395 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263395 THE LAW AND PEACTICE INJUNCTIONS. LONDON-. PRINTED BY WILLIAM CLOWES AND SONS, STAMFORD STHEET AKD CHAUING CROa , THE LAW AND PRACTICE OF INJUNCTIONS IN EQUITY AND AT COMMON LAW. By WILLIAM JOYCE, Esq. ov Lincoln's inn, barbister-at-law. IN TWO VOLUMES. Vol. I. Pages 1 to 778. "Pl^ffiTOEES FATTLATnt ASPEEITATEM JcMS CiVILIS COHIIIGENTES, SITE QTJOD DEERAT IMPLEKTES :"— IhST. L. 3, T. 2, CI. 3. LONDON: STEVENS & HAYNBS, BELL YARD, TEMPLE BAR. 1872. CINCINNATI: ROBERT CLARKE & CO. PKEFACE. The object of the Author in the following work is to produce a complete exposition of the Law and Practice of Injunctions. Where the Author has thought it useful he has stated the par- ticular circumstances of the case cited, to such an extent as will more clearly elucidate the principle of the decision. It is believed that no proposition is stated that is not founded on, or has not been originated by, the particular case or cases cited in support of that proposition. The principles of the decisions cited are, as a rule, given (either in a direct or narrative form) in the very words of the judges who enunciated them. The Author believes that every case in the English Courts of Equity (together with the cases on Injunctions in the House of Lords, and in the Privy Council and Irish Courts — with the Scotch cases of Interdicts in the House of Lords), where an Injunction has formed any material portion of the relief asked for, has been noticed. In addition to the above-mentioned cases, a selection from the American cases has been added. For these, the Author is, with some few exceptions, indebted to Mr. F. Hilliard's very able work on Injunctions (2nd Edit.). In the Common Law parts of the work it is believed that all the reported cases on the subject of Injunctions at Common Law have been cited. The Indexes, at the same time that they are in the alphabetical form, are also to a considerable extent analytical, and, it is hoped, both comprehensive and concise. Upwards of 3500 cases and 160 statutes are cited. W. J. Lincoln's Inn, April, 1872. CONTENTS. INTRODUCTION. Definition of an Injunction PACK 1 PAKT I. OF INJUNCTIONS TO STAY WRONGFUL ACTS OF A SPECIAL NATURE (NOT BEING PROCEEDINGS IN OTHER COURTS). CHAPTER L Real Pbopeety (includins Leaseholds). SECT. PAGE 1. DisTBEss — Rent — Rbnt-chaeqb .. ,. .. .. 3 2. Possession — Quietino Possession .. .. .. .. 4 3. Canals — Watek — Pbrkies .. .. .. .. 9 4. Mines and Minerals — Quabries .. .. .. .. 25 5. Customs — Pbescbiption .. .. .. .. .. 43 6. Common, Right op .. .. .. .. .. 44 7. "Wat, Right of .. .. .. .. .. 48 8. Pairs — Markets .. .. .. ,. .. 50 9. Fisheries .. .. .. .. .. .. 52 10. Copyholds .. .. .. ,. .. .. 53 11. Leases .. .. .. .. .. .. 66 12. Executions (so far as relate to Real Property, including Leaseholds) — Elegit ., ., .. .. .. 61 13. fobfeitubbs — election ., .. .. ., .. 63 14. Covenants .. .. .. .. ,. .. 63 15. Nuisance .. .. .. .. .. .. 99 16. Waste .. .. .. .. .. .. 131 17. Legal Rights — Legal Title .. .. .. .. 178 18. Annuities .. .. .. .. .. .. 180 19. Judgments .. . .. .. .. .. 185 20. Mortgages (including Chattels Real) .. .. .. 189 21. Vendor and Purchaser — Specific Performance .. .. 202 CONTENTS. Part I. CHAPTBE II. Pbksonal Pbopebtt. SECT, 1. Patents 2. Copyright 3. CoPYKiGHT IN Designs 4. Trade Maeks .. 5. Letters 6. Chattels— Specific Chattels 7. Fixtures 8. Game .. 9. Pictures — Paintings 10. Stocks — Consols 11. Policies 12. Deeds.. 13. Bills op Exchange — I. O. U.S.- 14. Bonds .. 15. Shipping — Shipments 16. Specific Performance -Promibsobt Notes PAGE 231 270 308 311 350 352 355 357 358 359 361 363 363 372 389 422 CHAPTER III. Incidents op Property (Real and Personal). SECT. 1. Light — Light and Air .. 2. Easements 3. Trespass 4. Name ,. 5. Publishing, Printing, and Selling — Publication of Proceed' iNGS IN Courts of Justice — Publication of Letters 6. Secrets 7. Account 8. Set-off 9. Restraint OF Trade 10. Business, Trades, &c. 11. Partnership 12. Bankruptcy — Insolvency 13. Bills OF Sale — Sales — Alienations — Mortgages .. 14. Judgments — Charge — Executions 15. Grants 16. Agreements not UNDER Seal 17. Settlements ., 18. Liens — Charges 19. Pensions 20. Stoppage in Transitu . . 424 452 463 470 470 479 481 489 495 510 511 533 547 552 554 554 555 559 565 570 CONTENTS. IX SECT. 21. Notice 22. Acquiescence — Delay — Laches 23. Feaud — Deceit 24. Mistake 25. Bbversions 26. Penalties — Conditions 27. Damages 28. Powees 29. Teusts — Confidence 30. Charities 31. Wills.. 32. Gambling — Gaming 33. Public Policy .. 34. Undue Influence 35. Abbitbations — Awards 36. Intbepleadee Suits 37. Peebogatives of the Cbown PAGE 573 574 580 586 588 589 593 596 597 605 613 615 616 617 620 628 634 Part I. SECT. 1. 2. 3. 4. 5. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. CHAPTER IV. Peesons and relating to Persons. Creditors — Debtobs Pbincipal and Surety .. Stakeholder .. Principal and Agent .. Landlord and Tenant .. Husband and Wife — Widow — Illegal Cohabitation Parent and Child — Infants Apprentice AuTHOES — Publishees Actoes Eeceivbes — Sequbstkatoes — Officees of the Court Lunatics Barrister — Counsel Solicitor — Attorney Executors — Administrators Devisee soveeeign — soveeeign prerogatives Ambassadoes Magistrates Felons — Felony Libel .. Crimes Refutation — Mercantile Credit 6.38 644 648 649 652 657 676 682 682 690 691 692 697 709 710 712 713 714 715 716 717 CONTENTS. Part 1. CHAPTER V. CORPOBATIONS — QuASI CoEPOnATIONS— PeIENDLY AND BENEFIT SOCIETIES. SECT. PAGE 1. Municipal Cobporations .. .. .. .. 718 2. Coepoeations Aggregate .. .. .. .. 732 3. Quasi Coepoeations Agqbbgate .. .. .. .. 748 4. Quasi Cobporations Sole .. .. .. .. 753 CHAPTER VI. Ecclesiastical Matters — Bueial Grounds, etc. 755 CHAPTER VII. Companies (Railway and other Public Companies). SECT. 1. Railway Companies 2. Estuaey, Dock, Waterwoeks, Canal and Piee Companies Clause 1. — Estuaey Companies „ 2. — Dock Companies „ 3. — Wateewoeks Companies „ 4. — Canal Companies „ 5. — Pier Companies 3. Insurance Companies 4. Banking Companies 5. Bank op England 6. Gas Companies .. 7. Mining Companies 8. Market Companies 9. Companies in General 10. Winding up Companies 779 938 939 941 946 951 952 954 959 965 968 969 970 1001 CHAPTER VIII. Jurisdiction 1004 CHAPTER IX. Injunctions generally 1030 CONTENTS. XI PAET II. OF INJUNCTIONS TO STAY PKOCBEDINGS IN COURTS OF LAW AND OTHER COURTS. Intkoduction PAGE 1053 Jdbisdiction CHAPTER 1. 1054 FAB AS THEY RELATE TO ReAL PeOPEETY) CHAPTER II. .Real Peopekty (including Leaseholds). SECT. 1. Ejectment 2. Possession 3. Rent .. 4. Executions (so 5. Lease .. 6. foefbitubes 7. Covenants 8. Nuisance 9. Waste 10. Common Lands 11. Leoal Title and Legal 12. Annuities 13. moetgages 14. Vendoe and Puechaseb- Right •Specific Peefoemance 1072 1094 1095 1095 1098 1099 1100 1106 1107 1107 1108 1109 1109 1112 CHAPTER III. Personal Peopeety. SECT. 1. 2. 3. 4. 5. 9. 10. 11 12. Choses in Action Policies Bills of Exchange Peomissoby Notes LO. U.s .. Bonds .. .. GUAEAKTIES — LeGAL INSTRUMENTS Shipping Judgments Executions Mortgage of Chattels Personal Teovee 1122 1123 1128 1138 1142 1142 1150 1151 1158 1159 1163 1164 CONTENTS. Paet II. CHAPTEE IV. Incidents of Pbopbrty (Real and Peksonal). SECT. PAGE 1. Account .. .. .. .. .. .. 1165 2. Set-off 3. Mistake 4. Fraod — Misbepbesentation 5. Notice 6. Tbusts 7. Pabtneeship 8. Bankruptcy 9. Wills 10. Intbbplbadeb .. 1169 1172 .. 1173 1176 1176 1177 1178 .. 1180 1180 11. Discovert, Bill OF, IN aid OP Action at Law .. .. 1187 12. Actions — ^Pbooeedinqs at Law — Audita Querela — Verdicts — Judgments — Sentences — Interdicts .. .. .. 1188 13. Damages .. .. .. .. .. .. 1196 14. PoEEiGN Attachment — Loed Mayoe's Couet of City op Loitdon — Gabnisheb Oedee .. .. .. .. .. 1196 15. Abbiteation — Awards .. .. .. .. .. 1197 16. Public Policy .. .. .. .. .. .. 1201 17. G-AMING — Gambling — Wagbbing Teansactions .. .. 1202 18. Usury.. .. .. .. .. .. .. 1205 CHAPTEE V. Pebsons and Relating to Persons. SECT. 1. Principal and Agent .. .. .. .. .. 1208 2. Cbeditob — Debtor and Cbbditoe .. .. .. 1209 3. SUEETY .. .. .. .. .. .. 1219 4. Guardian and Wabd .. .. .. .. .. 1226 5. Husband and Wife .. .. .. .. .. 1227 6. Attobney and Client .. .. .. .. .. 1229 7. SoLiciTOEs' Bills (Taxation of) .. .. .. .. 1229 8. Eecbivee — Ofpicees op the Coubt — Auotionebb (undee Sanc- tion op the Couet) .. .. .. .. .. 1230 9. Lunacy .. .. .. .. .. .. 1232 10. ExBCUTOB — Administrator .. .. .. .. 1232 11. Heib Expectant — Heie-at-Law .. .. .. .. 1237 12. Indictments .. .. .. .. .. .. 1238 CHAPTER VI. ConroiiATioNS .. ■• .. .. .. .. 1239 CONTENTS. Companies CHAPTER VII. Pakt II FAQE 1240 Injunctions Generally CHAPTER VIII. .. 1253 PART III. PRACTICE. SECT. PAGE 1. By what Means an Injunction is obtained .. .. 1258 2. By what Means an Injunction is dissolved .. .. 1264 3. What is done on the Motion to dissolve .. .. 1270 4. Who mat apply to dissolve, and before whom the Appli- cation SHOULD BE MADE .. .. .. .. 1272 5. Evidence on the Motion, and Form of the Order to dissolve .. .. .. .. .. .. 1278 6. Filing the Bill .. .. .. .. ., 1280 7. Service op THE Bill .. .. .. .. .. 1282 8. Service of Notice op Motion for an Injunction . . . . 1283 9. Form op Notice of Motion foe an Injunction, and of Notice of THE Time of MAKING THE Motion .. .. .. 1284 10. The Time for, and Okdee and Form of making the Motion for AN Injunction .. .. .. .. .. 1285 11. Evidence ON THE Motion for AN Injunction .. .. 1288 12. The Effect of Pleadings, and op Changes in the Pleadings .. 1296 13. Dismissal of THE Bill .. .. .. .. .. 1302 14. Orders and Injunctions obtained on Interlocutory Applica- tions — Interim Restraining Orders and Injunctions and Interlocutory Injunctions .. .. .. .. 1304 15. Drawing up and Service of the Notice of, and Minutes and Orders for an Injunction, and Preparation and Issuing AND Service of the Writ op, and Order for, an Injunction 1312 16. The Injunction made at the Hearing op the Cause .. 1314 17. Appeals .. .. .. .. .. .. 1319 18. Breach OF Injunction .. .. .. .. .. 1321 19. Practice on Injunctions generally . . . . . , 1340 [Part IV. xiv CONTENTS. PAET IV. CHAPTER I. Injunctions at Common Law. 8BGT. FAG G 1. Injunctions under the Patent Law Amendment Act, 1852 .. 1349 2. Injunctions undeb the Railway and Caual Tbaffio Act, 1854 .. .. .. .. .. .. 1350 3. Injunctions under the Common Law Pbocbduhb Act, 1854 . . 1365 4. Stating Pkocbedings undbe the Common Law Peoceduee Act, 1852 .. .. .. .. .. .. 1369 CHAPTER II. Peactice on Injunctions AT Common Law .. .. .. 1372 INDEX .. .. .. .. .. .. .. 1375 ADDENDA .. .. .. .. .. .. .. 1555 TABLE OF CASES. PAGE 369 ■ V. Blackwood ■ V. Bridgewater Canal Co. 1300 . 297 . Q9.6 . 747 . 487 V. Leadbetter V. Mills Abbott V. American, &c. . Abbey v. Pitch Aberaman Ironworks Co. v. Wiokens .... Aberdeen Railw. Co. v. Blackie . Abernetby v. Hutchinson . Aberystwith and Welsh Coast Eailw. Co. V. Piercy . 639, 912 Abingdon (Lord) v. Thomhill . 1281 Abraham v. Bubb) 1). Babb) 229 865 474 167, 171, 172 Abrahams v. London (Mayor, &c., of) 1000 Accidental and Marine Insurance Company v. Mercati Acherley v. Vernon . Acheson v. Hodges . Ackroyd v. Briggs • . V. Smith Aolaud V. Attwell Acraman ■;;. Bristol Dock u. Pries Adair v. New River Co. Adams v. Broughton Adamson v. Gill V. Hall V. Wilson . African Steam Ship . 953 . 1260 . 985 36, 1348 . 252 . 161 Co. . 1262 98, 595 . 1044 . 601 . 392 1276, 1277 1307, 1308 Company v. Swanzy . . . 1156, 1157 Agar V. Regent's Canal Co. 465, 1337 Agra and Masterman's Bank, In re 389 Agra and Masterman's Bank v. Hoffman . . . .493 Ainslie v. Sims .... 1013 Ainsworth v. Bentley . . 687 V. Walmsley . . 342 Albert (Prince) v. Strange 216, 217, 473, 474, 686, 1278 Alder v. Fouracre Aldebert v. Kearns Aldrich v. Cooper Allan V. Inman Allen V. Davis . V. Donelly V. Kilbre . V. Taylor . AUer V. Jones . Aldis V. Fraser . Aldred's Case Alexander v. Alexander V. Crystal Palace Railw. Co. 639. Alliance Bank v. Brown Alpin V. Gates .... Alston V. Eastern Counties Railw. Co Ambrose v. Dunmow Union Arnes v. Birkenhead Docks (Trus- tees of) Amhurst v. Dawling Amies v. Kelsey Amory v. Brown Amyot, Ex parte . 360, 96i Anderson v. Commissioners, &c. V. Kemshead V. Lewis . V. Wallace 527 361 1057 1148 1135 1044 515 507 1262 4 162 596 784 640 640 824 1190 689 774 1349 267 i, 964 463 1068 1313 525 TABLE OF CASES. PAGE Andrewes v. Jonos . . 1237 Andrews v. Berry . 1202 53, 54 . 1334, 1336 Angerstein v. Hunt . Angier v. Angier . 066 ■Ryr 1269, 1287 Anglo-Danubian Company v. Eogerson 370, 1307 Annesley v. Eookes . . 1159 . 1119 Anon. (Ambl. 209) 31, 173 (1 Atk. 491; 3 Atk. 350) 1022, 1064 (2 Atk. 113) . . 1299 (2 Atk. 469) . . 715, 1331 (3 Atk. 485) . . 164,1279 (3 Atk. 521) . . 1313 (3 Atk. 567) . . 1324 (3 Ch. Eep. 25) . 1195 (2 Bq. Abr. 522) 576, 1106 (2 Eq. Abr. 529) . 1328 (Gilb. Eq. E. 183) 8 (1 Jones, 626) . . 149 (3 Jur. (N. S.) 685) . 471 (2 Kay & J. 441) 515, 516 (1 L. J. (Ch.) 4) . 1294 (1 L. J. (Ch.) 25) . 223 (1 L. J. (Ch.) 119) . 157 (4 L. J. (Ch.) 204) . 1286 (Lofft. 151) . . 162 (Lofft. 775) . 296, 298 (6 Madd. 10) . . 196 (Moor. 159, pi. 300) . 83 (1 Vern. 119) . . 709 (1 Vern. 120) . 246, 297 . (1 Vern. 329) . . 1027 (1 Vern. 801) . . 1191 (2 Ves. Sen. 193) . 119 (2 Ves. Sen. 414) . 51 (2 Ves. Sen. 520) . 1331 (1 Ves. Jun. 93) . 160 A nth V. Sambourne . . 221 Anthony v. Brooks . . 469 Arcedeckne v. Kelk . 4C (3, 434, 457 Ardley v. St. Pancras ( Gruar- dians of) . 1050 Argles V. Heaseman . . 682 Arkwright v. Gyles . . 359 FACE Armitage v. Walker . . . 1120 Armitstead v. Durham . . 1312 Armstrong v. Armstrong . . 403 V. Courtenay- . . 203 V. Waterford and Lim- erick Eailw. Co. . . . 633 Arnold v. Bradbury . . . 1340 Arthington v. Pawkes . 468 Arthur v. Lamb . . .175 Arandell (Lady) v. Phipps . 675 V. Taunton . 676 Arundel v. Trevillian . . 378 Ashmall v. Wood . . . 409 Ashton V. Blackshaw . . 545 Ashwin v. Burton . 208, 373, 1146 Ashworth v. Bristol and North Somerset Eailw. Co. . . 1250 V. Browne ... 52 Askam v. Thompson . , 520 Askew V. Townsend . 1276, 1316 Astley v. Manchester, Sheffield, and Lincolnshire Eailw. Co. . 862 Aston V. Aston 163, 165, 172, 1174 V. Heron . . . .688 Athenseum Life Assurance So- ciety V. Pooley 1122, 1245, 1246 Athey v. McHenry . . . 451 Atkins V. Ohilson . . . 452 Atkinson v. Henshaw . 613, 707 Att., &c., V. Cohoes Company . 731 Att.-Gen. v. Ancaster (Duke) 164, 1263 V. Andrews . . 740 V. Anst . . .611 V. Aspinall . . 729 V. Avon (Portreeve, &c.) 718, V. Birmingham Corpo- [719 ration . . 735, 736, 1310 V. Birmingham and Derby Junction Eailw. Co. . 854 V. Birmingham and Ox- ford Junction Eailw. Co. 863, 864 V. Boyle 178, 1317, 1324 V. Bradford Navigation Company . . .12, 123 v. Briggs . . .883 . 1279 V. Burrows V. Cambridge sumers' Gas Company Con- 113 TABLE OF CASES. Att.-Gen. v. Charles . V. .Clifton . V. Cleav.ev . ; — V. Clements PAGE . 103 . 607 119, 716 1052 : — V. , Colney Hatch Lu- natic Asylum . . . 108 V. Conservators of Eiver Thames . . 106, 107 V.Daniel . . .728 V. Doughty . . 162 V. .Drummond . . 758 V. Dublin (Corpora- tion of) ... 730, 1046 V. Ely, Haddenham, and Sutton Eailw. Co . . 818 V. Eastern Counties Eailw. Co., and Northern and Eastern Counties Eailw. Co. . 816 V. Eastlake . . 606 V. Etheridge . . 755 V. Forbes . . , 117 V. Governors of Found- ling Hospital . . . 606 V. Geary . . .167 1>. Gee . . . . 128 V. Great Eastern Eailw. Co 920 V. Great Northern Eailw. Co. 843, 870, 871, 950, 951, 1332, 1339 V. Great Western Eailw. Co . . . .917 ^ — ii. Great Yarmouth (Corporation of) . . . 724 — V. Grocers' Company 1292 V. Johnson . 121, 123 V. Halifax (Corpora- tion of) . ... . .129 ■ — V. Hesketh . . 774 V.Hudson . . 936 V. Kingston - upon- Thames (Mayor, &c., of ) . 100 V. Leeds (Corporation of) 22 V. Lewis . . 1289 V. Litchfield (Bishop of) 771 V. Litchfield (Corpora- tion of) . . 726,728,729 Att.-Gen. v. Liverpool (Mayor, &c. of) 1034, 1036, 1263, 1265, 1266 V London and South Western Railw. Co. . 813, 872 V. Lonsdale ( Earl of) . 1319 V. Luton Local Board of Health . . . 739,1318 V, Manchester and Leeds Eailw. Co. 902, 1310, 1324 V. Marlborough (Duke of) 158 r- v. .Marsh . . . 1298 V. Mathias . . 43, 44, 635 : — v.. Metropolitan Board of Works . . . . : — V. Mayor of Liverpool V. Mid-Kent Eailw. Co. and South Eastern Eailw. Co. V. Munro . , V. Murdoch V. Murray . 103 546 815 610 759 1280 V. Nichol . . 99, 435 V. Norwich (Corpora- tion of) ... 726, 729 772 V. Pearson . V. Poole V. Eichards V. Eichmond V. Eiggs . V. Eoyal College of Physicians .... V. St. Cross (Hospital) • V. St. John's Hospital ■ V. Sheffield Gas Con- 729 120 124 6 732 763, 764 610 sumers' Company .99, 113, 114, 1304 V. Southampton (Guar- dians of) . . . .740 V. Southampton (Mayor &c. of) . . . . 51, 723 — ' V. Tewkesbury and Malvern Eailw. Co. . . 809 Vj United Kingdom Electric Telegraph Company V. Vincent . V. Warden, &c., of Louth Free School V. Welsh . 108 173 607 760 TABLE OF CASES. Att.-Gen. v. West Hartlepool Im- provement Commissioners . 1050 V. Wigan (Mayor, &c. of) 724 V. Wilkinson . . 1239 >. Wright . . . 1284 Attwood V. Banks . . . 543 V. Barham . . . 216 Atwill V. Ferrett . . .306 Austin V. Austin . . . 679 V. St. Mary Lambett (Ves- try of) 739 V. Thomson . . . 1161 V. Tynte . . . 1169 Australian Auxiliary Steam Clip- per Company v. Mounsey . 980 Austria (Emperor of) v. Day and Kossuth . . 711, 1008, 1052 Axe V. Clarke 1329 B. Back V. Stacy . Backhouse v. Bonomi V. Hunter Bacon v. Jones V. Spottiswoode . 435 . 454 . 1064 249, 1318 249, 1318 . 133 Bagot V. Bagot . Bagshall v. Gore . . . 540 Bagshaw v. Eastern Counties Eailw. Co ... . 808 Bailey v. Birkenhead, Lancashire, and Cheshire Junction Eailw. Co 903 V. Ford .... 1287 V. Hobson . . . 175 Baillie v. Baillie . . 1061 Baily v. Taylor 32, 291, 299, 1317, 1318 Bainbridge v. Hemingway . 370 Baines v. Baker . . . 99 Baird v. Neilson V. Eice Baker v. McClellan V. MeUish V. White Balby v. Wells . Baldwin v. Society for the Diffu- sion of Useful Knowledge . 235, 238 . 1226 . 1303 . 1076 . 379 . 83 Ball V. Montgomery V. Oliver . V. Storie . Balls V. Strutt . Bamford v. Creasy Bampton v. Birchall Bank, &c. v. Rutland Bankart v. Houghton V. Tennant . Banks v. Gibson V. American, &c. Bigges . PAGE . 666 . 613 . 1057 . 599 . 1075 . 1093 . 1029 112, 1107 13, 460 334, 531 . 451 Bannister v. Banwen Iron Company, In re . Barber v. North Staffordshire Eailw. Co Barohard v. Brighton, Uckfield, and Tunbridge Wells Eailw. Co Barefoot v. Fry Barfield v. Kelly V. Nicholson 281, 293, 121 1286 1270 214 Bargate v. Shortridge BargeuD v. Thomson . Baring v. Nash Barker v. Goodair V. Midland Eailw. V. North Eailw. Co. V. Vansommer 975 1087 281 295, 1331 . 955, 1159 881, 108O . 172 . 1060 Co . 1353 Staffordshire . 829, 1263 . 375 Barlow v. Bailey . . . 1342 Barnard v. Wallia . . . 459 Barnesley v, Powell . . . 614 Barnewall ■;;. Bamewall . . 640 Barnsley Canal Company v. Twi- bell .... 1020, 127a Barnes, In re. Harper v, Barnes 644 Barnett v. Leuchars Barr v^ Wiggins Barrett, In re . ['. Blagrave Barry v. Barry . V. Donnellan V, Stevens Bartlett v. Phillips V. Salmon Barton v. Chambers Baskett v. Cunningham . • 339, 340 . 1229 . 1356 78, 80 . 158 . 1041 . 1167, 1168 . 767 . 1142 . 1287, 1291 . 247 TABLE OF CASES. XIX Bass V. Dawber .... 348 Bassett v. Bassett . . 165, 1021 Bastow & Co., Inre . . . 1241 Batchelor v. Blake . . .689 Bateman v. Boynton . . 621 '- V. Johnson . . 465 V. Eamsay . . . 1174 ^ V. Wiatt . . 1313, 1325 — V. Willoe . . . 1159 Bates V. Beaufort (Duke) . . 1162 V. Brothers . . , 194 Bath (Lord) v. Sherwin 1087, 1189, 1317 Bathurst v. Burden . . . 162 V. Kearsley . . 476, 477 . 680 . 318 V, Murray Batty V. Hill .... Baxendale, In re, and Bristol and Exeter Eailw. Co. . V. Eastern Counties Bailw. Co — — li. Great Eastern Eailw. Co. , , . 1357, V. London and South Western Railw. Co. : V. McMurray -. — V. North Devon Eailw. Co. V. South Western 1364 1359 1364 1372 127 1358 1360 Eailw. Co. V. West Midland Eailw. Co 792, 1366 Baxter v. Combe , . . 246 V. West . . . .513 Baylis v. Grant . . .691 Baylis v. Legros . . . 1367 V. Watkins . . . 1271 Beadel v. Perry . . 435, 443, 448 Beadell, In re, v. Eastern Counties Eailw. Co 1355 Beard v. Turner . . . 342 Beardmer v. London and North Western Railw. Co. . . 814 Beardmore/w. Gregory . . 708 V. Tredwell . . 105 Beasley v. D'Arcy . 486, 491, 653 Beatty v. Beatty . . , 157 V. Kurtz . . .778 Beaudhamp v. Great Eailw. Co. Beaufort (Duke) v. Bates . 1 V. Glynn . • V. Morris . ' . V. Patrick FAGB Western . 919 68, 356 . 1118 28, 464 947, 1086 . 982 Beck V. Dean , . . Beckford v. Kemble . . . 1063 Bedford and Cambridge Eailw. Co. V. Stanley . . .825 (Duke of) V. Trustees of British Museum Beer v. Ward . Beere v. Cavendish Beeston v. Marriott . 81 . 694 . 1092 553, 1162 Co. Belfast Harbour Commissioners V. Lawther ... . .632 Bell V. Blyth 422 V. Bird . . . ,543 V. Hull and Selby Eailw. Co. 988, 1262, 1265, 1269, 1270, 1277, 1321 V. Midland Eailw. V. O'Reilly . V. Walker . V. Whitehead — V. Wilson . Benfield v. Solomons Bennett v. Manchester, Sheffield, and Lincolnshire Eailw. Co. . Bennitt v. Whitehouse Bentinck v. Norfolk Estuary Co. Bentinck v. Willinck . . . Bentley's Case (Dr.) . Bentley v. Foster Benwell v. Inns .... V. Dicker . 858 . 488 . 292, 298 . 272, 290 32, 35, 1295 . 1206 1364 463 939 1039 608 276 501 543 49, Bermondsey (Vestry) v. Brown . 751, 1347 , 413, 572 . 379 1291, 1292, Berndtson v. Strang . Berrisford v. Done Besemeres v. Besemeres Best V. Drake . Bethune v. Wilkins Betts V. Barton . V. De .Vitre 1294 3 . 469 . 1262 233, 235, 242, 243, 250 259 a 2 TABLE OF CASES. Betts V. Gallais . ■ V. Menzies V. Neilson . V. Thompson V. Wilmott Bevan v. Lewis . Bewick v. Whitfield Bewley v. Hancock Beyfus v. Bullock Bickett V, Morris Bickford v. Skewes Bicknell v. Todd Bidder v. Croydon Local Board of Health . .... V. Trinidad Petroleum Co. PAGE . 265, 595 . 233, 242, 243 . 257, 268, 1169 . 47 . 264 . 532 . 171, 174 . 244 . 547 . 19 1039, 1270, 1279 . 269 107 355 Biddulph V. St. George's Hanover Square . . 104 Bidlake v. Arundel . . .384 Biggs V. Head . . . .693 Bilke V. London, Chatham, and Dover Eailw. Co. . . . 1367 Bill V. Sierra Nevada and Lake Water Mining Co. . . 979, 1009 Billage v. Southee . . 364, 1141 Billing V. Southee . . .364 Bingley v. Marshall . . . 1307 Binney v. Hammersmith and City Eailw. Co. Birch V, Corbin . — — V. Walsh . BirchTWolfe v. Birch Bircher v. Parker Bird IX. Brancker V, Lake V. Turner . ' . Birkbeck v. Paget Birkenhead Docks (Trustees of) V. Laird .... Birley v. Constables of Ohorley- upon-Medlock Birmingham v. Sheridan . Canal Co. v. Lloyd 12, 172 — and Oxford Junction Eailw. Co. V. The Queen . 788 Waterworks Com- pany V. London and North Western Eailw. Co. . . 811 Bishop V. Church . . . 493 . 783 . 960 . 1331 . 176, 1107 . 356 . 1328 67, 499, 1290, 1292 .499 . 358 740 741 974 . 953 . 553 . 1123 226, 227 . 217 . 539 . 343 . 298 . 1202 . 1191 . 148 1144, 1145 1253, 1323 Blakely Ordnance Co., In re . 1252 Blakemore o. Glamorganshire Canal Navigation Co. . 1037, 1310 V. London and South Bishop V. Scott . Bissell V. Bozman Black V. Bowman Blaokett v. Bates Blackford v. Hawkins Blackball v. Combs Blackwell v. Crabb ■ V. Harper V, Eedman Blacoe v. Wilkinson Blagrave v. Blagrave Blake v. White . V. Blake . Western Eailw. Co. Blanchard v. Cawthome V. Hill Blennerhasset v. Scanlan Blest V. Brown . Blofieldu. Payne Blomfield v. Eyre 681, . 934 468, 1335 . 335 630, 1302 . 1226 . 340 1040, 1263, 1318 Bloxam v. Metropolitan Eailwy. Co 931 BlundeU v. Gladstone . . 1190 Boardman v. Mostyn . . . 1088 Bock V. Gorrissen . . 374, 561 Bodger v. Bodger . . . 1295 Boger, Be 1336 Bogue V. Honlston . . . 286 Bohn V. Bogue .... 1293 Boles V. Walley .... 8 Bolt V. Stanway. . . . 1192 Bolton V. Bull . . . .245 Bonafous v. Eybot . . . 592 Bonaparte v. Camden, &c. . . 937 Bond V. Hays .... 1206 Bonnett v. Sadler . . .220 Bookless V. Crummaoh . . 1210 Boosey v. Davidson . . . 276 V. Purday . . . .276 Booth V. Bank of England . 961 V. Leycester . . . 1062 V. Taylor .... 1367 Bootle V. Stanley . . . 1326 TABLE OF CASES. Bosanquet v. Dash'vrood . 1205, 1206 Bosley v. Susquehanna, &o. . 951 Bostock V. North Staffordshire Eailw. Co'. '. . 947,948,949 Boston, &o. V. Salem, &c. Bouchier v. O'Grady . Boucicault v. Delafield Boughton V. Boughton V. Bank, &c. Boulfbee v. Stubhs Bourbaud v. Bourbaud . 936 . 150 . 277 . 168 . 648 . 1219 1265, 1273, 1275 Bovill V. Crate . . . .261 V. Goodier . 246, 257, 261, 1270 V. Hitchcock V. Smith . Bowdler v. Bowdler Bowes V. Pernie V. Law Bowmaker ■;;. Moore Bowman v. Taylor Bowser v. Colby ■ V. Maclean . 258 . 262 1290, 1336 . 623 . 96 . 1220 . 235 59, 88, 1042 . 26, 457 Boyd V. Cudderback . . .201 Boyse v. Eosborough . . 618 Bracebridge v. Buckley . 81, 1042 Brackenbury v. Brackenbury . 363 Bradbury v. Beeton . . 341, 345 V. Dickens . . . 683 V. Manchester, Sheffield and Lincolnshire Eailw. Co. . 11 Bradford Navigation Company, In re ... , 12, 13 Bradley v. Millar . . . 1144 V. Norton . . . 349 Braham v. Bustard . . 316, 318 Bramwell v. Halcomb 179, 291, 1274, 1308 Brandon v. Barlow Bray v. Fogarty Brenan v. Preston Brennan v, Gaston Brereton v. Tushey . 557 . 97 , 410, 1056, 1157 . 469 . 70 Brett V. Bast India and London Shipping, Company . 214, 975 Bricheno v. Thorp . . .694 Bricknel v. Stamford . . . 1191 Bridges v. Stephens . . . 169 PAOE 250 251 147 1345 Bridson v. Benecke V. M' Alpine . Briggs V. (Earl of) Oxford Brighouse v. . Margetson Brinsley, Ex. parte 1 Buchan, Ex parte f Bristol and Forest of Dean Coal Company Bristow V. Whitmore British Equitable Insurance Co. V. Great Western Railw Co. . 1127 Broadbont v. Imperial Gaslight Company . 110, 111, 112, 965 Brocklebank v. Whitehaven Junction Eailw. Co. . . 834 997 1252 397 Brodie V. Johnson Bromley v. Holland Brook V. Aston . V. Evans V. Skinner Brooke v. Clarke Brooker v. Brooker Brooks V. Diaz . u. Purton, V. Reynolds Broughton v. Pitchford Brown v. Brown . V. Cooke ■ ■ V. Duchesne . 1). Gugy.. ■ V. Newall . 1008 . 1043 . 233 471, 1331, 1332 . 705 . 1272 . 697,1258 . 469 1269, 1297, 1328, 1339 . 1216 . 1043 . 659 . 297 . 635 . 100 1088, 1091, 1265, 1266, 1309 -V. Perrott- . . .61 ■!;. Quiltep .• . 84,652 -v. Robertson . . .1285 V. Tanner . . .420 Browne v. Blake ■ . . . 1192 V. Freeman . . . 317 V. Eoberts . . . 1050 V. Marsh . • . .368 V. Monmouthshire Railw. and Canal Company 887, 888, 896 V. Warner . . .220 Browning v. Morris . 1205, 1206 Brugman v. Noyes . . . 656 Brummel v. Macpherson . . 85 Brunnenmeyer v. Buhro . . 776 TABLE OF CASES. Bruliton v. Neale BrydgQS v. Stephens . Bryson v. Metropolitan Saloon Omnibus Company V. Whitehead Bubb V. Yelverton — V. Yelverton. Mc parte Hastings Buccleueh u. Wakefield Buchanan v. Alwell . V. Lorman . PAGE 1212 158 980 481 175 Buck V. Eawlinson Buckingham v. Buckingham Buckland v. Hall Bulkley v. Wilford . Bullen V. Ovey . 1328, Bullock V. Bullock ■ V. Chapman . Bunbury v. ^unbury . Burbidge v. Robinson . Burdett v. Hay . 1270, Burges v. Lamb Burgess v. Burgess V. Hately — ?;. Hill . Burke .V. Prior . Buries v. PQpplevell . Burn V. Cai;valho Burne i;. Madden Burpee v. Smith Burton v. Blakemore . V. Eoberts Bury V. Bedford Bush V. Field . Bushby v. Munday . Bute (Marq^uis) v. Stuart Butler V. Burleson V. Gardener . 176 . 37 . 230 . 230 . 376 . 1020, 1260 58, 1114 . 583 1334, 1339 . 1022 . 957 1013, 1063 . 1328 1292, 1304 . 170 . 328 . 322 . 322 88, 1099 . 705 . 562 . 154 . 1069 • 1292 . 1214 . 316 . 165 . 1055 1009, 1065 . 509 . 1285 Biitt V. Imperial Gaslight and Coke Company . . 95, 124, 442 Butterworth v. Eobinson . . 292 V. Walker , . 202 Butts V. Matthews . 1039, 1292 Buxton V. James . . . 275 Byron (Lord) v. Dugdale . . 299 V. Johnstone . 1288, 1306 0. Cage V. Cassidy .... 647 V. Russell .... 1041 Cailland v. Estwick . . . 553 Caird v. Campbell, 1040, 1275, 1276, 1302 Cairncross i). Lorimer . . 756 Calcraft v. Thompson . 439, 444 1). West. . . .252 Calder V. Halket . . .713 Caldwell V. Baylis . . .140 V. Vanvlissengen 247, 248, 616, 635 Caledonian Eailw. Co. v. Sprot 796, 797 • V. Belhaven (Lord) .... 796,797 Caledonian Railw. Co. and Glas- gow G. and C. Railw. Co. v. Sprot .... 796, 797 Calhoun v. Cozens . . . 675 Calvert v. Gason . . . 154 V. Gray .... 1294 Cambrian Railw. Co., In re . 920 Camden v. Morton ... 84 Camille v. Donato . . . 1348 Campbell, In re. . . . 1230 V. Allgood . . . 141 V. Scott . . .290 V. Thompson . . 414 Campbell's Trustees v. Campbell 24 Canham v. Jones . . . 548 Canny v. Hodgens ... 59 Canterbury (Archbishop of) v. Wills 1217 Capes V. Hutton . . . .'^ 505 Capps V. Norwich and Spalding Railw. Co 824 Garden v. Butler . . .591 Cardiff (Mayor, &c.) v. Cardiff Waterworks Company . ITS, 943 Cardinall v. Molyneaux . 766, 1270 Carew v. Carew .... 165 V. Cooper .... 566 Carlen v. Drury. . . . 528 Carlisle r. South Eastern Raihv. Co 808, 887 Carnan r. Bowles . . 293, 297 TABLE OP CASES. FAGB Games v. Nisbett . 1367, 1368 Camochan .v. Norwich and Spald- ing. Eailw. Co.. . . . 821 Carpenter v. Gwynn : V. Heriot 469 386 41 589 Carr v. Benson . Carroll v. O'Connor . Carron Iron. Company v. Maclaren 1011, 1054, 1259, 1314 Carrow v, Ferrior Carter v. Carter , ' V. Cropley V. Great .Eastern Eailw. Co.. V. Palmer V. Williams Carter v. Pinto Leite ) Carver v. Pinto Leite ) Carteret v. Petty Cartier v. Carlisle Cartwriglit v. Petters . Carwick v. Young Cary v. Faden . ..ior V. Strode 157, 1010, Co. 1323 675 761 819 691 230 1341 1015 319 1015 1259 293 1259, 1263 13 1287 278 1285 I V. Midland Eailw, Cass V. Bailey . Cassell V. Stiff . Cast V. Poyser . Castelli v. Cook, 411, 1019, 1030, 1263, 1265, 1266, 1292, 1304 Castendieck v. De Burgh . . 900 ■Catching v. Terrell . . .469 Caterham Bailw. Co., In re . 1355 Catton V. Wyld . . . .593 Catt V. Tourle . . . .508 Causton f..City OfiBoes Company 1192 Cauty V. Houlditch . . . 1291 Cavendish ,«. Cavendish . . 1107 Cawdor (Lord) v. Lewis . 491, 1170 Central, &o. v. Bunn . . 935 Central Eailroad and Banking Company of Georgia v. Mit- chel 1028 Oentreville, &c. v. Barnett . . 469 Chaffers v. Baker , . 1285, 1286 Chalie v. Pickering . . 1190, 1231 Chamberlain v. Dummer . . 171 PAGE Chamberlyne v. Pummer , . 170 Chambers v. London, Chatham, and Dover Eailway . . 786 V. Toynbee . . 1284 Champlin v. Dotson . . . 1123 Chaplin v. Cooper . .1328, 1329 V. North Western Eailw. Co. 782 Chapman v. Buncombe . . 198 ; V. Gordon . . . 462 V. Eailroads . . 938 Chappelli). Davidson, 282, 282, 284, 345, 1307 V, Cox, . . .532 V. Purday, 275, 276, 289, 1293 : V. Sheard . . .282 Chappie V. Ilaho.n . . . 1049 Charles v. Marsden . . . 1134 Charleston, &c., v. Sebring . 959 Charlton v. Newcastle and Car- lisle Eailw. Co. and North Eastern Eailw. Co. 799, 800, 845 Chedworth (Lord) v. Edwards . 360 Chemjel v. Churphman . , . 1316 Cherrjngton v. Abney . . 428 Chesnjan v. Nainby . . . 505 Chesterfield (Earl of) v. Janssen 375, 376, 385, 1205, 1207 Child.?;. Douglas .72,74,75,3297 1187 1178 1268 690 594 423 V. Mann . Child s V. Horr . Chilton V. Campbell Chinnerys, .In re. Chinnock v. Ely (Marchioness) . ; V. Sainsbury Oholmondeley (Earl) v. Lord Clinton . Cliowne u. JBaylis Christie v. Craig Chuck V. Cremer Chubb V. Griffiths . Church V. Legeyt Churchman v. Tun stall Churton v.. Douglas . V. Frewen . 480, 695, 1263 . 714 . 411 . 623, 1313, 1323 . 345 . 1121 . 24 323, 500, 501 . 775 City of London Brewery Com- pany V. Conservators of Eiver Thames. . . . 106, 107 XXIV TABLE OF CASES. FASK Olaok'u. White . . . .130 Clancy v. Roberts . . . 1074 Clare Hall (Master, &o., of) v. Harding 1109 Clarence Eailw. Co. v. Great North of England, Clarence, and Hartlepool Junction Eailw. Co. Clark V. Cort V. FergussoQ V. Freeman V. Giraud . V. Jaques . V. Watking Clarke, Hx parte V. Batters V. Clark V. Gohley V. Earl Ormond . 902 . 1169 . 241 339, 715, 717 . 1207 . 1285, 1287 . 499 . 689,1335 . 404 . 438 . 380 1163, 1213, 1263 V. Law . . . . V. Manchester, Sheffield, and Lincolnshire Eailw. Co. . V. Manning . V. Paddington Vestry . ^ V. Price . . . . V. Eoyal Panopticon • — ■ V. Seton 1294 Clarkson v. Edge Claiighton ti. Hadwell Clavering v. Clavering Clayton v. Lyle . Cleeve v. Mahany Clegg V. Edmonson . Clement v. Griffith . V, Maddick . Clements v. WiUes . Gierke v. Moore. Cliff V. Bull Clifton V. Robinson . Clinan v. Cooke . Clothworkei'a' Company v. Con- servators of River Thames 106, 107 Clough V. French . . . 1176 749 143 2(19 532 . 810 . 1160 . 734 . 214 . 190 . 386 . 495 . 1299 . 30 . 371 . 109 . 580 . 1290 . 280 93, 574 . 1189 . 1343 . 1265 . 1041 — V. RatolLffe Clowes V. I'eok . Clum V. Brewer Coatcs V. Coates PAGE 1322, 1371 . 1202 . 192 597, 1095 . 643 . 276 . 443 . 1060 . 160 . 523 . 802 . 321 . 250 . 1262 . 1293 293, 294, 295, 1317 Cole, In re . . . . 709 V. Burgess .... 1215 Coleman v. West Hartlepool Eailw. Co. . . 471, 1305, 1331 1105 324 Cobbett V. Ludlam Cock V. Eichards Cockell V. Bacon Cockerell v. Cholmeley Cockerell v. Dickens Cocks V. Purday V. Eomaine Coddv. Woden . Coffin V. Coffin . Coften V. Homer Cohen v. Wilkinson Colladay v. Baird CoUard v. Allison V. Cooper Colbum V. Duncombe V. Simms Coles V. Sims Collins Company v. Brown j V. Cohen S V. Reeves V. Walker 322, 325 . 322 Collins 0. Lamport . 389, 390, 400 V. Plumb ... 83 Colman lu Eastern Cotmties . 807,899 Assurance Com- and Colonial Eailw. Co. Colonial Life pany v. Home Life Assurance Company 335, 336, 971 Colt V. Cornwell Com. V. Bank, &c. V. Eush .... Congleton v. Mitchell (Mayor of) v. Pattison ConoUy v. Lord Ely . Const V. Barr . ('. Hai-ris . Oonstantein v, Blache Continental Bank, In re Couyers c. Lord Abergavenny Good V. Good Cook V. Baker , • V. Bath (Mayor, &o., of) 50, 116, 462 553 959 462 144 88 . 150 . 1290 529, 530 . 1141 . 1249 . 1318 . 1005 . 1202 TABLE OF CASES. XXV PAGE . 511 . 695 . 1183 . 1067 . 172 101, 129 , 619 . 165 . 1229 644, 1149 . 613 . 488 430, 431, 437, 458 ■y. Joel . 671, 1150, 1151, 1317 London and South 1359, 1372 Union Cook V. Catchpole V. Ehodes ^■^ V. RoBslyn • V. Sturgis V. Winford Cooke V. Forbes V. Lamotte V. Whalley V. Setree . Cooper V. Evans V. Gordon V. Hatton V. Hubbuok —V. Western Eailw. Co. V. Shropshire Eailw. and Canal Co. ■V. Wyatt Coorg (Rajah of) v. B. Cope V. Doherty Copeland v. Webb Coppingor v. Gubbins LCo, 86 1006 . 1155 . 237, 1271 149, 150, 151, 169 . 447 . 676 . 180 22 578 279 Corbett v. Hill . Corley v. Corley Cornelius v. Post Corning v. Troy, &o., Factory Cornish u. Tanner V. Upton Correspondent Newspaper Co. (Limited) v. Saunders . 300, 301 Corwin v. Daly .... 350 Cory V. Thames Ironworks and Shipbuilding Co. . . 594, 595 V. Yarmouth and Norwich Eailw. Co. . . 24, 1046, 1278 Costello V. Hunt V. Martin Coster V. Griswold Oosterton v. Costerton Cotching V. Bassett . Cotesworth v. Stephens Cother v. Midland Eailw. Co, Cotter V. Metropolitan Eailw. Co. 780 Cotton V. Catlyn . . .366 Cottrell V. Moody . . . 1071 . 223 . 1182 . 1150 . 1216 426,427. 418, 1060 906 Coulson V. White Courthorpa v. Mapplesden Courtown (Lord) v. Ward . Cousins V, Smith Coventry v. Gladstone PAGE . 468 133, 465 . 150 . 1299 421, 573 V. London, Brighton, and South Coast Eailw. Co. Cowbridge, In re Cowen V. Phillips Cowgill V, Ehodes Cowley V. Cowley Cowper (Earl) v. Baker V. Clark 933, 934 . 188 5,555 . 1271 . 298 . 467 . 1043 . 631 472, 473 Cowtan V. Williams . Cox V. Cox V. Land and Water Journal Co.. .... 302,304 v. Paxton . . . .715 Crampton v. Bishop of Meath . 774 Crawford v. Alexander . 135, 466 Crawford v. North Eastern Eailw. Co 868 V. Chester and Holyhead Eailw. Co. V. Fisher . 833 . 1181 690, 1259 . 484 . . 1203 . 676 1270, 1301 . 1196 332,345 Creagh, Re Crease v. Penprase Cremorne (Lord) v. Bruen Creuze v. Hunter Cresy v. Beavan Crews V. Burcham Croft V. Day V. Goldsmid V. Graham V. Haw .... 'V. Lumley. V. Middleton Cromford Canal Co. v. Cutts Cromford and High Peak Eailw. Co. i). Stockport, Disley, and Whaley "Bridge Eailw. Co. Oroni-n v. M'Carthy . Crook V. Corporation of Seaford . Crookes v. Petter Crookshanks v. Turner Crosby v. Middleton . Croskeyi;. European and American Steam Shipping Company 1165, 1255 63 364 525 ' 88 1072 834 863 152 230 280 603 380 XXVI TABLE Of cases. FAOB Crossley v. Derby Gas Light Co. 252 V. Dixon . . .235 V. Lightowler 20, 21, 127, 128, 462 Grossman v. Bristol and South Wales Union Company Crow V. Wood . Crowder v. Tinckler , Cruikshanks v. Bobarts Crura v. Moore's, &o. Crump V. Lambert Crutwell V. Lye Cryer. v. Goodhand Cuddon V. Morley Cuff V. Brown . Cuffe V. Young . Cunliflfe v. Whalley Cunningham v. Rome, &c. Curlewis v. Carter 843, 1007 . 181 . 119 . 1015 . 604 . 126 323, 501 . 1235 144, 1318 . 1140 . 1216 . 748 . 936 1108, 1168, 1208, 1271 Curre v. Bowyer . 1213, 1331 Curriers Company v. Corbett . 437, 438, 440 Curtis V. Auber . . . 367 .V. Cutts . . . 245, 250 V. Marquis of Buckingham . 219, 549 V. Piatt . . . 232, 233 Custance v. Cunningham . . 359 Cuthbert v. Fane . , . 1286 Cutts V. Bidden . . . 1243 Cyrus V. Hicks . . . 553 D. Dabbs V. Nugent . . . 489 Dadson v. East Kent Bailw. Co. 787 Daggett V. Byman . . . 496 Dakin v. London and North Western Eailw. Co. . 826, 831 V. Whimper . . . 556 Dale V. Eosevelt . . .709 Dales V. Weaber . . 507, 508 Dalglish V. Jarvie 311, 1031, 1034, 1263, 1265, 1266, 1279 D'Almaine v. Boosey . 276, 293 Dalmer v. Dashwood . . .182 ])alton V. Furness . . . 1187 Daly V. Archbishop of Dublin V. Kelly . Dancer v. Evett Dangerfield v. Jones Daniel ■;;. Anderson Darby v. Baines D'Aroy v. Sumner Dare Valley Railw. Co. v. Ebys In re Darley v, Nicholson . Darlington (Earl) v. Pulteney . Damley (Earl) v. London, Chal^ ham, and Dover Eailw. Co. . PAGE 770 . 219 . 1121 235, 256 . 453 . 1018 , 1298 929 1200 1190 1090 Daugars v. Eivaz Davenport v. City Bank V. Davenport V. Goldberg V. Eichard ■_ V. Eylands Davidson v. Leslie Davie v. Beardsham Davies v. Banks V. Clough V. Davies ;— V. Dodd , ■ V. Evans V. Leo V. Marlboroug; V. Marshall V. Price V. Sear . V. Stainbank V. Salisbury V. Williams Daville v. Peacock . . 1265, Davis V. Curtis V. Davis . V. Eyton . V. Mason . V. Shepherd V. Uphill . V. West . Davy, Ex parte, l>e Chambers Daw V. Eley . 258, 26 Dawes, In re , Dawson v. Lawcs V. Paver . 45, 818, 819, 914 762, 1326 . 1138 131, 1298 . 258 . 238 259, 260, 265 . 1287 577, 578 . 770 . 693 . 152 . 368 . 1180 159, 1293 565, 567 430, 1318 98, 595 461 1133 1091 1111 1269 384 1297 86 504 36 174 1041 1178 , 263, 1328 . 696 . 1223 1045, 1332 TABLE OF CASES. Dawson v. Prince V. Sadler. r V. Thompson . ' V. Yatea Day V. Binning ., ■;;. Snee . 1302, 1303, V. Merry . Dayrell v. Champneys Dean v. Bennett V. Byrnes . Deane v. Hamber Deaver v. Ellen De Beaufort v. Archdeacon Debenham y. Ox De Costa V. Scandret Deere v. Guest ., Deguilder v. Depeister Dehon v. Foster Delafield v. Illinois . De la Rue v. Fortescue Delf V. Delamotte Delondre v. Shaw Delvin (Lord) v. Smyth De Mattos v. Gibson . PAGE . 1132 . 622 . 679 . 1292 . 333 1314, 1316 . 156 . 165 612, 776 . 559 . 1348 . 1071 960, 1265 377. 378 . 362 820, 828 . 385 . 1029 . 372 1367, 1368 281, 294 276, 334 . 1272 205, 391, 398, 573, 1307 De Manneville v. De Manneville 680 De Minckwitz v. Udney Denew v. Stock . Dench v. Bampton Dennett v. Dennett . Denny v. Brunson V. Lord Enniskillen 543 1020 29 177 177 386 Dent ti. Auction Mart Company 123, 441 V. Bennett . , . .619 V. Turpin . . . .510 Denton v. Denton . .169, 182 Derbyshire, Staffordshire, and Warwickshire Eailw. Co. v. Serrell .... 897, 905 Desborough v. Harris . 1186 Descarlett v. Dennett . 88 Desgraves v. Lane . 1303 De Tastet v. Bordenave . 1296 Dettmar v. Metropolitan and Provinciiil Bank . . 1139 Devey v. Thornton . . 700 Devon and Somerset Eailw. Co., In re . . 9L'l PAGE Devonsher v. Newenham . . 1317 Devonshire (Duke), In re . . 714 V. Eglin . 16 Dewhirst v., Wrigley . . 18, 110 Dew V, Hamilton . , . 647 De Winton v. Brecon (Mayor, &c. of) . . . , . . 1214 Dickens v. Lee , . . . 287 Dickenson v. The Graud Junction Canal Company , . 211, 1318 Dietrichsen v. Cabburn . . 1035 Dill v., Wabash, &c. . . . 938 Dilly V. Doig .... 298 Dimes v. Grand Junction Canal Company .... 950 V. Steinberg . . . 613 Dinwiddle v. Bailey . . .1170 Dixon, Se , . . . . 1290 V. Holden . . . 717 Dobson V. Laud .... 194 V. Lyall .... 417 Dodd V. Salisbury and Yeovil Eailw. Co 822 Dodsley v. Kinnersley . . 298 Doe V. Beavan .... 86 V. Carter .... 86 V. Carew .... 86 V. Clarke .... 86 V. David .... 86 V. Hawkes ... 86 y. Jones .... 1074 V. London and Croydon Eailw. Co 900 Dolman v. Vavasor ... 4 Donegal (Marquis of) v. Connor . 39 Doneraile y. Chartres . . 653 Doo V. Croydon Eailw. Co. . 830 Doolittle V. Walton . . 963, 1263 Doran v. Carroll . . . 134 Dorrington v. Jackson . . 58 Dorson v. Hunter ... 46 Douche V. Perrot ... 8 Dougherty v. Walker . . 709 Dover Gas Light Company v. Dover (Mayor, &c.) . 966, 967 Dover Harbour (Warden and As- sistants of) I). London, Chatham, and Dover Eailw. Co. 812, 817, 978 TABLE OF CASES. Dover Harbour (Warden, &c., of) V. South Eastern Eailw. Co. 1035 . 353 . 1167 V. Lord 155, 156, 1334 . 224 Bowling V. Betjemann Dowman v. Matthews Downshire (Marquis) Sandys . Doyne v. Harvey Drake ■;;. Lyons . . . . V. West . . . . Drax V. Somerset & Dorset Eailw. Co. ...... Dresser v. Hoare Drewe v. Hanson Drewry v. Thacker, 1036, 1161, Druiff V. Parker Drummond v. Att.-Gen. 1138 3 928 408 221 1324, 1334 1137 758 ■ V. Pigou . 186, 1189, 1212 . 378 . 79, 1311 Drury v. Hooke V. Molins . Dublin (Corporation of) v. Att.- Gen 1046 Dublin Exhibition Palace Co., Inre . .- . . . 1002 Du Boulay ■«. Du Boulay . 347, 470 Dugdale v. Robertson . 26, 27, 554 Duigman v. Walker . . . 500 Dumpor's Case ... 85 Dunball v. Walters . . 440, 449 Dunbar v. Wilson . . . 1140 Duncan v. Edwards . . 201 V. M'Calmont 416, 1019, 1061 Duncombe v. Greenacre 630, 1065, 1229 . 1159 . 937 Dunham i;.- Downer V. Izett . V. London and North Western Rail w. Co. . . 1353 Dungey v. Angove . . . 631 Dunmoncel-v. Dunraoncel . . 667 Dunn V. Cox .... 1188 V. Green .... 1121 V. Dunn .... 651 Dunlap V. Stetson . . . 589 Diinsany v. Dunne . . . 1348 Durant v. Moore . 1334, 1335, 1336 Durcll V. Pritchard 439,444,594, 1044 Durham and Sunderland Eailw. Co. V. Wawn .... 828 Durston v. Sandys . . . 773 Dutt V. Dosaee .... 138 Dutton V. Furness . . . 629 Duval V. Teery . . 384, 385, 591 Dyer v. Tymewell . . . 368 Dyers' Company v. King . . 447 Dyke v. Taylor . 56, 57, 59, 85 E. Bachus V. Moss . . . 598 Eaden v. Firth . . . 101, 1270 Earle v. Holt . . . -367 East and West India Dock Co. v. Littledale .... 1274 Bast and West India Docks and Birmingham Junction Eailw. Co. V. Dawes .... 823 V. Gattke . . . 897, 898, 1047 Eastern Counties Eailw. Co. and London and Blackwall Eailw. Co. V. Marriage . . . 856 Bast India Co. u. Kynaston . 1339 V. Sandys . . 246 V. Vincent . . 574 East Kent Shipping Co., In re . 1002 East Lancashire Eailw. Co. v. Hattersley . . . 897, 1290 East of England Bank, Re . 133S Eastwood V. Levers . . 165, 593 Eaton V. Lyon . . . 1041 Ecclesiastical Commissioners v. Clerkenwell (Vestry) . . 765 Echliff V. Baldwin . . 219, 549 Edelsten v. Edelsten . 314, 315, 318, 319, 320 ('. Vick . . 327, 328 Edge V. Duke .... 1125 Edgecumbe v. Carpenter . . 1036 Edgeworth v. Edgeworth . . 8 Edgington v. Edgington . . 584 Edinburgh and Glasgow Eailw. Co. V. Campbell . . . 809 Edmonds v. Plows . . . 692 Edmunds i'. Bird . . . 706 V. Brougham . . 1345 TABLE OF CASES. XXIX PAGE Edridge v. Bdridge . . .961 Edwards v. Griffith . . . 1067 ^ — V. The Grand Junction Eailw. Co. . . . 873, 885 V. Shrewsbury and Biriningham Railw. Co. . 889, 892 V. Spaight . . . 1294 Edwards- Wood v. Baldwin . 388 Egan V. Baldwin . . .1210 Egmont V. Darrell . . . 1271 Elborough v. Ayres . . . 1050 Electric Telegraph Co. v. Nott 1290, 1291 Electric Telegraph Company of Ireland, Ex parte Budd . . 1284 Blison V. Bignold . . . 953 Ellerton v. Thirsk . 1314, 1337 EUicott V. The United States . 1257 Elliot V. Brown .... 1076 , Ex parte. Re Jermyn . 1179 V. Halmarack . . . 1331 Elliott V. Kempston . . . 1182 . V. Merriman . : . 575 V. North Eastern Eailw. Co. . . . 25,162,554,795 , V. Turner . . 86, 1042 Ellis i;. Bridgnorth . . .723 Ellison V. Ellison . , .642 V. Earl Grey . . .750 Ellsworth V. Starbird . . .201 Elmhirst v. Spencer . . 23, 116 Ehnslie v. Boursier .. . . 264 Elsee, Ex parte. In re Joiner . 691 Elseyr. Adams. . .533,1289 EUwell V. Crowther ... 14 Elwopd ■;;. Christy . . . 1349 Ely (Dean, &c., of) v. WaiTen . 55 Enfield, &c., V. Hartford , . 936 England (Bank of) v. JiUnn . 1233 V. Moffatt . . .962 V. Morrice . 704 ; V. Parsons . 962 V. Curling . . . 524 Life Association of, /rare 1241 Ennor v. Barwell . . 16, 45 Enos V. Hunter .... 1028 Erie, &c., v. Walker . . .180 Errington v, Aynesley . . 1145 PAGE Esdaile v. La Nauze . . . 365 V. Lanoge . . . 365 Espey V. Lake .... 1139 Etches V. Lance . . . 1294 Eton College (Provost, &c. of) v. Great Western Railw. Co. . 854 European apd Australian Royal Mail Company v. Royal Mail Steam Papket Company . . 398 Eustace v. Dublin Trunk Con- necting Railw. Co. . . . 935 Evan V- Avpn (Corporation) • 722 Evans v. Bremridge . 1221, 1254 V. Coventry . . .923 0. Carrington . . . 1228 V. Hughes . . . 517 Evelyn v. Lewis . . . 1073 Eversfield v. Mid-Sussex Eailw. Co 860 Evitt V. Price ., . . 480, 1310 Exeter and Crediton Railw. Co. ■u. BuUen . 889, 892, 988, 989 (Corporation of) v. Earl of Devon . . . . .128 Exhall Mining Company . . 1252 Eyton V. Denbigh, Ruthin, and Oorwen Railw. Co. ... 4 V. Denbigh, Ruthin, and Corwen Railw. Co. ; Eickman v. Johns 928 P. Fairthome v. Weston . . 522 Falkland Islands Co. v. Laforce . 1280 . 469 . 1205 . 633 . 1255 . 1111 323, 325, 326 . 1211 . 362 Falls, &c., V. Tibbetts Fanning v. Dunham . Farebrother v. Prattent V. Welchman V. Wodehouse Farina v. Silverlock . Farlow v. Wilson Farmer v. Farmer Farquharson v. Pitcher 602, 1299, 1303 Farrant v. Lovell . . 163, 167 Farrow v. Vansittart . . . 874 Fawcett v. Laurie . . . 954 Featherstone v. Cooper . . 623 Fechter v. Montgomery . . 688 Feilden v. Slater ... 99 TABLE OF CASES. PeisteL v. King s College, Cambridge 1270, 1279 Pelkiaw. Herbert (Lord) . 454,754, 1331, 1332 Pells V. Read . . . .353 Pennall v. Brown . . . 1289 Fennelly v. Eanscelot . . 1069 Pennings v. Humphrey . 1259, 1323 Pereday v. Hordem . . . 1207 Perguaon v. London and Brighton Eailw. Co. . . . 782, 784 Pemie v. Maguire . . . 362 1;. Young .- . .1271,1347 Pemihaugh v. Leader . . 906 Perrand v. Hamer . 1276, 1302 V. Mayor,- &c., of Bradford 943, 1281 Perrars v. Ferrars . . . 668 Pfookes V. South-Western Eailw. Co 884,885 Pield V. Beaumont . . 29, 464 V. Carnarvon and Llanberis Eailw. Co 822 V. Jackson - . . . 162 Fielden v. Fielden . . . 1211 V. Lancashire and York- shire Eailw. Co. . . . 893 Pilder v. London, Brighton, and South Coast Eailw. Co. . . 973 Fines v. Cobb .... 46 Pingal (Earl) v. Blake . . 157 Pirebrasse v. Brett . . . 1202 Firth V. Bush .... 1283 Fisher v. Baldwin . 1162, 1166 y. Fisher , . . . 1275 Fishniongers' Company v. Beres- ford ^ . . " . .166 [ V. East In- Fleming v. Fleming V. Newton V. Snook dia Company . Fitch V. Eo.chfort Fitton V. Macclesfield Fitzgerald v. Champneys V, O'Cpnnell . 162, 435 1265, 1267 . 1315 . 765 . 1093 . 213 . 1284 FitzpE^trick v. Nolan . Fitzgerald v. Bult Pitzwilliam (Earl of) v. Moore 90, 769 Plavel V. Hfirrison . . . 329 Plam^ng's Case ... 7, 465 Fletcher v. Sondes Flight V. Chambre 1040, V. Thomas Flood V. North-Eastern Eailw. Co 847 Flower v. Herbert . . . 1178 V. London, Brighton, and South Coast Eailw. Co. . . 839 Floyd V. Turner . . .463 Fluker v. Taylor . . 489, 1168 Fodringham v. Chorley . . 1311 Foley V. Wontner . . 771, 772 Pollett V. Delany ... 406 Fooks V. Wilts, Somerset, and Weymouth Eailw. Co. . 834, 900 PoUiott V. Ogden . . . 1059 Foot V, Lea . . . 329, 330 Forbes v. Carney ... 80 Ford V. Compton. . . . 1260 V. Eackham . . . 193 V. Tynte . . 133, 170, 357 Pordyce v. Ford . . . 1113 Porman v. Homfray . . . 522 Pornley v. Clench ... 8 Forrest v. Manchester, Sheffield, and Lincolnshire Eailw. Co. 843, 854 Poss V. Harbottle 889, 892, 969, 987 . 654 . 84 . 634 . 266 . 260 . 1267 . 260 . 431 . 503 . 375 . 234 . 1044 . 665 . 515 . 381 624, 1328 . 1289 . 1188 FAOB . 702 478, 479 . 79 . 387 1109, 1263 . 436 Fowkes V, Joyce Fowler v. Bott . V. Lee Pox, Ex parte . V. Dellestable . V. Hill V. Jones . V. Puissell V. Scard V. Wright . Poxwell V. Bootock . V. Webster . Frampton v, Prampton Francis v. Spittle Franco v. Bolton -V. Franco Francome ix. Francome Frank v. Basnett TABLE OF CASES. XXXI Franklyn v. Thomas 1299, 1300, 1328, 1330 Franklin v. Bank of England 1233 Pranks v. Weaver . . . 331 Fraser v. Kershaw . . 514, 537 V. Whalley . . 779,1304 V. Witt . ... ,572 Freeman v. Burke . . . 148 V. Freeman . . . 377 V. Tottenham and Hjimp- stead Junction Eailw. Co. 914, 1270, 1348 French v. Connelly . . . 1125 ; V. Macahe . . 78, 80 Frewin v. Lewis . . . 1023 Friend v. Burgh . . .384 Frietas v. Dos Santos . . 487, 650 Frieze v. Chapin . . . 552 Frompton v. TifSn . . .713 Fry «. Fry .... 676 Frogley v. Earl Lovelace . . 357 Fuller V. Gihson . . .538 V. Ingram . . . 1067 V. Taylor . . . 1305 Furness (R. C.) v. Smith . . 853 Furniss v. Midland Bailw. Co. . 792 Furnival v. Bogle . . . 1136 Fyfe V. Swaby . . . .984 G. Gale V. Abbot . . . .431 Galloway v. City of London (Mayor, &c.) 719, 996, 997, 1044 Gardiner v. Cowper . . . 389 — (Assignees of) v. Shan- non 1179 Gardner v. Broadbent . . 243 V. Charing Cross Bailw. Co. ...... 786 V. Freemantle . . 752 . V. Garrett . . , 1215 V. Lachlan . . . 416 V. London, Chatham, and Dover Eailw. Co. . . . 62 u. M'Outcheon . . 525 Garland v. Eiordan . . . 1280 Garle v. Eobinson . . . 1098 Garlick v. M'Arthur . . , 1159 PAGE Garrard v. Lauderdale . . 600, 641 Garrett v. Banstead and Epsom Downs Eailw. Co. . . 226, 911 V. Salisbury and Dorset Junction Eailw. Co. . 627, 912 Garstin v. Asplin . . . 1161 Garth v. CoUon 152, 155, 161, 166, 167, 171 Garton v. Bristol and Exeter Eailw. Co. 1357, 1358, 1359, 1360 Gartside v. Outram V. Whalley 479 779 1064 172 1158 Gasooyne v. Chandler Gaskell v. Gaskell Gaunt V. Taylor Gawthom v. Stockport, Disley, and Whaley Bridge Eailw. Co Gayford v. Moffatt . Gee V. Pritchard . 475, 715, 716 Geiger v. Green .... 230 Gemmill v. Macalister General Iron Screw Collier Com- pany V. Schurmanns George v. Howard V. Watmouth . 869 461 1131 402 707 1278 180 696 80 386 1301 Georges, &c. v. Detmold . Gerrard v. Dawes Geust V. Lord Belfast Gibson v. Egerton ■;;. Chayters , V. Hammersmith Eailw. Co 786,793 V. Head . . . .615 V. Smith . 30, 162, 1294 GiSord, Ex parte . 1221,1222 Gifford V. New Jersey . . 1000 Gilbert u. Cooper . . ,900 Giles V. Hart . . . ,500 V. London, Chatham, and Dover Eailw. Co. . , , 787 Gill W.Newton ..... 200 Gilpin V. Lady Southampton . 704 Gingell v. Home . . . 614 Gittins V. Symes . . 269, 1350 Gladstone v. Musurus Bey . 713, 1005 v.. Ottoman Bank 1004, 1007 Glaholm v. Barker ... 400 TABLE OP CASES. Glascott V. Copper Miners' Com- pany 1275 V. Lang 416, 417, 1270, 1279 28 . 742 217, 521 . 1257 485, 1130 . 339 . 1095 . 1229 . 1305 Wells Commissioners 122, 123 Gompertz v. Pooley . 1188, 1254 Gooohj;. Marshall 1313, 1314,1322,1336 Goodale v. Goodale . 1036, 1310 Goodford v. Stonebouse and Nails- wortji Eailw. Co. . . . 927 Goodhart v. Lowe . . . 413 Goodma,n v. De Beauvoir . 899, 1263 151, 1040, 1263 . 377 . 270 . 269 . 270 Glasgow (Earl of) v. Hurlet Alum Company , Glass V. Marshall Glassington v. Thwaites Glenn v. Fowler Glennie v. Imri Glenny v. Smith Glover v. Reynolds Goddard v. Carlisle Goldsmid v. Croft v.. Tunbridge Improvement • V. Kine • V. Souse, Goodyear i;. Bom-n v.Daj : — v., Phelps . Goold /D. Great Western Deep Coal^ Company (Limited) . 34 Goolden v. Anstee ... 96 Gordon v. Cheltenbam Eailw. Co. 1034 • V. Woodford Goring v. Goring . Gort (Viscountess) v. Clark Gorton V. Smart Gough V. Pratt . Goucher v. Clayton . . Gourlay v. Duke of Somerset Gout V. Aleploglu Gower V. Eyre . Grafton V. Griffin Graham v. Birkenhead, Lanca- shire, and Cheshire Junction Eailw. Co 803 Graham v. Johnson . . 388, 389 Granard v. Dunkin . . . 475 . 135 . 149 101, 449, 450 . 120 . 616 255, 257 88, 652 . 333 . 169 . 1094 Grand Junction Canal Company V. Dimes 950, 1040, 1263, 1333 V. Shugar 997, 998 Grant, JEx parte . . . . 1178 V. Grant . . 384, 591 V. Priddell . . . 126£ Graves, In re . . . . 307 Gray v. Knox .... 1090 V, Liverpool and Bury Rail- way Co 830 Great Northern Eailw. Co. v. Eastern Counties Eailw. Co. 805, 806 — V. Lancashire and Yorkshire Eailw. Co. . . 825 V. Manchester, Sheffield, and Lincolnshire Eailw. Co. . . . 207, 852 Great North of England, Cla- rence, and Hartlepool Eailw. Co. V. Clarence Eailw. Co. 816, 1310 Greatrex v. Greatrex . . 524, 1310 Great Ship Company, In re, Ex parte Parry .... 1242 Great Western Deep Coal Com- pany (Limited) v. Goold . 34 ■- Eailw. Co. V. Ben- nett. . . . . .40 Great Western Eailw. Co. v. Birmingham and Oxford Junc- tion EaQw. Co. . . 894, 1031 V. Cripps . . 588 V. Oxford, Worcester, and Wolverhamp- ton Eailw. Co. . 884, 1270, 1279 Gregg V. Coates .... 84 Gregory v. Patchett . . 971, 972 V. Wilson 86, 87, 88, 222, 1042, 1087 Greech v. Grain .... 1257 Green v. Bridges ... 86 V. Church . . . 481 V. England (Bank of) . 961 V. Polgham . . . 481 V. Green .... 63 V. Low . . 1082, 1310 V. Lowes .... 220 V. Nixon . . 1211, 1247 y. Pledger . . , 643 TABLE OF CASES. XXXIU Green v. Pulsford V. Wynn . Greenaway v. Adams Greenfield v. Edwards FAGE 1276, 1302 . 1220 . 84 . 1175 Greenhalgh v. Manchester and Birmingham fiailw. Co. 828, 1264, 1265 Greenhill v. Isle of Wight (N. Junction) Bailw. Co. . . 913 Greenslade v. Dare . . , 769 Greenwich Hospital (Commis- sioners of) V. Blackett . . 28 Greerside v. Benson . . . 1217 Grey de Wilton (Lord) v. Saxon 79, 1311 Grey v. Duke of Northumherland 30, 467 V. Ohio, &c. Griffin v. Deveuille V. Archer V. Brady . Griffith V. Edwards V. Reynolds . 580 . 376 . 539 1016, 1017 . 1073 . 648 1367, 1373 . 386 Hampstead . 785 . 1269 Grindley v. Booth Grosvenor v. Cook Grosvenor (Lord) v. Junction Bailw. Co. Grove v. Sansom Grover and Baker Sewing Ma- chine Company v. Millard 235, 237 Guage V. Lockwood ... 88 Guest V. Cowbridge Eailw. Co. . 188 Guichard v. Mori . . . 277 Guion V. Trask .... 401 Gurney v. Behrend . . 420, 1308 V. Seppings . . .195 Gutteridge v. Fletcher . . 199 Gwinett v. Bannister . . 1057 Gwyn V. Lethbridge . . . 1319 Gyles V. Wilcox . , 296,298 H. Hack V. Leonard . . . 1041 Hadfield v. Manchester, South Junction, and Altringham Railw. Co 899 Hadley v. London Bank of Scot- land 225 Hadley v. Bountree Haigh V. Jagger V. Waterman Haines v. Taylor Halev. Hale V. Tiomas V. Webb . Halford v. Gillow Hall V. Barrows V. Box V. Conder . V. Hall . V. M'Leod . Hallett V. Bousfield Halliwell v. Phillips Halloran v. Danal Haly V. Barry . V. Goodson Hamil v. Stokes Hamilton v. Board PAGB . 652 . 132 . 1106 109, 1032 . 164 . 591 . 682 . 541 . 312 . 97 . 235 . 524 . 463 . 419 . 138 411, 1019 . 1219 . 1019 . 583 . 1307 (Duchess of) v. Incledon 695 1181, 1288 : — V. Marks . : — V. Patten . V. Smith V. Worsefold Hammon v. Sedgwick Hammond v. Hall — — — — V. Maundrell V. Neame . V. Smith . V. Walker . V. Ward Hamp V. Jones . Hampson v. Fellowes Hampton v. Hodges . Hankey v. Morley V. Morris V. Vernon Hanmer v. Chance Hannam.u. South London Water- works Company Hannay v. M'Entire Hanson v. Gardiner — — V. Graham Harbottle v. Pooley . 1092 . 1247 . 466 . 1136 . 23 964, 1263 . 961 . 1277 . 1282 . 983 . 653 . 551 . 158 . 1177 1328 1187 55 1326. 1101, 1302 . 1294 465, 468, 1294 . 12 . 1306 Harcourt v. Eamsbottom . . 549 Hardcastle v. Shafto . , . 1097 I> TABLE OF CASES. I'AOB Harding v. Tingey 1301, 1323, 1339 V, Wickham . 1057, 1198 Hardinge v. Webster. 979, 1211, 1244 Hardy v. Martin . . . 385 Hare v. Groves .... 84 V. London and North-West- ern Railw. Co. . . . 845 Havman v. Jones . . . 1031 llanner v. Plane . . . 253 Harms v. Parsons . . . 498 Harper v. Hayes . . . 598 V. Pearson . . . 510 Harrington (Earl) v. Metropolitan Eailw. Company . . . 840 Harrington v. Du Chatel . 617, 1317 Hams V. Cockermouth & Worth- ington Eailway Co. . 1362, 1363 V. Collett 1187, 1255, 1268 V. Jose .... 744 V. Lewis . . . 1283 V. Start .... 1269 522 1262 505 125 1259 . 187 314, 340 . 158 . 1283 ,102; Harrison v. Armitage . V. Cookerell . V. Gardner . ■- — V. Good V. Gnmey . V. Nettleship V. Taylor Harrow School v. Alderton Hart V. Tulk .... Hartlepool Gas and Water Co. v. West Hartlepool Harbour and Eailw. Company . Hartridge, Ex parte, London, Cbatham, and Dover Eailw. Co., Ex parte Harvey v. Hall . Hartz V. Schrader Hassall v. Wright Hatch V. Searle . V. Hatch . 945 Hastings, i'x parte . Havins v. Middleton . Hawarden (Viscouutt'ss) v. lop ... Hawes V. Baniford ■ V. James Ilawke '■. Kemp 804, 805 . 1297 . 524 . 265 . 364 . 619 . 176 . 87 Dim- 1007 1289 219 1309 PACK Hawkes v. Champion ... 8 Hawkins v. Blachford . . 474 V. Hawkins . . 514 V. Turner . . .387 Hawkshaw v. Parkins . . 553 Hawley v. Bennett . . . 691 Hays V. Ward . . . .648 Hayward v. Angell . . . 1041 V. Lowndes . . . 735 Head v. Gervais .... 489 Heald v. Hay .... 1313 Heath v. Bucknall . . 447, 448 V. Maydew . . 203, 425 V. Wallingford . . . 107 Heathcote v. Xonh Staffordshire Eailw. Co 804 Hedges v. Metropolitan Piailw. Co. 855 Hele?;. Hele . . . .384 Helling v. Liimley ... 57 Helms V. M'Fadden . . .585 Hemphill v. M'Kenna . 1034, 1263 Hendei'son v. Henderson . . 1015 V. Lacon . . .999 V. Peruvian Eailw. Co. 1241 Hendrick v. Abbott . . . 1141 Hendrie v. Thompson . . 1188 Hennessey v. Bray . . .63 Henry v. Great Northern Eailw. Co 866 Hepburn i<. Lordan . . . 122 Hereford (Bishop of) v. Griffin . 478 Heriot v. Nicholas . . .390 Heriot's Hospital (Feoffees of) !'. Gibson 814 Herrick v. Grand Trunk Eailw. Co 844 Herring v. Dean and Chapter of St. Paul's .... 90 Hertford (Marquis of), Ex parte 360, 963, 964 Hervey i'. Fitzpatrick . . 700 V. Smith . . 459, 1310 Herz V. Union Bimk of London 433, 434, 1030, 1292, 1293 Hewat !'. Nolan .... 1321 Hewitt r. Price .... 1283 Hewlett 1'. Hewlett . . . 1237 llevnemau i: Dauueberg . . 644 TABLE OF CASES. Hicks V. Morant Hill V. Andus . V. Barclay . — V. Caillovel PAGE . 681 . 1256 88, 222, 1042 . 385 V. Great Northern Eailw. Co. 825 V. Hoare . . . 1276, 1277 V. Oxon (University of) . 297 V. Pottery Company, In re . 994 V. Eeardon .... 1027 V. Eimell 1261, 1268, 1283, 1284 V. Spencer . . 382 V. Thompson . 245, 1293 V. Tupper . . 252 v. Turner . . 1037, 1038 Hillier v. Parkinson . 1042, 1096 Hills V. CroU . . 217 V. Evans . 234, 236, 237, 267 V. Rowland . 1084 V. Liverpool United Gkislight Company .... 237 V. Parrish .... 1001 Hilton V. Earl Granville 31, 1265, 1266 V. Hilton ... 63 V. Woods ... 40 Hinde v. Morton . . . 1277 Hindley v. Emery . . 90, 225 Hindustan, China, and Japan (i?e Bank of) Ex parte J. M. Smith 995 Hiae v. Lart . . . .334 Hippesley v. Spencer . . . 196 Hirst V. Peirse .... 1169 Hoare v. Dresser . . 408, 1153 V. Wilson ... 48 Hodges V. Welsh . . 289, 297 Hodgkinson v. National Live Stock Insurance Co 971 Hodgson V. Duce . 463, 1317, 1366 V. Hancock . . . 1243 V. Murray . 365, 1042, 1317 V. Earl Powis . 803, 886 Hodson V. Coppard 70, 164, 510, 511, 1259, 1317 Hoffman v. Postill . Hogg V. Kirby . V. Maxwell Hoggart V, Outts Holbrook v. Sharpey Holden v. Weekes 267, 1343, 1344 . 477 . 300, 301 . 1288 . 1206 141, 767, 768 PAGE Holden v. Waterlow . . 1306, 1307 Holdemess v. Lamport . . 403 Holditch V. Mist . . .1218 Holdsworth v. M'Crea . 308, 309 Hole V. Thomas . . 159, 163 Holland v. Fox .... 1350 Holies V. Wyse .... 592 Holloway v. HoUoway . . 329 Holm esD. Eastern Counties Railw. Co 865 V. Wainewright . . 538 Holroyd v. Marshall . . 202, 550 Holtu. Mayor, Aldermen, and Bur- gesses of the Town of Rochdale 129 Holtzapffel v. Baker ... 84 Holyoake v. Shrewsbury and Bir- mingham Railw. Co. . . 906 Homan v. Moore . . . 1075 Hood V. Aston .... 365 V. North-Bastern Railw. Co. 847, 919 Hoole V. Great Western Railw. Co. 932 Hooper Be. . . . • 1271 V. Brodrick . . .213 V. Cooke . . . 1082 Hoops V. Earl Kingston . . 1213 Hope V. Carnegie 1016, 1282, 1343 V. Hope . . . 662, 1283 V. Liddell .... Hopkins v. Newton . Hopkinson v. Lord Biu-ghley V. Marquis of Exeter Horn V. Horn .... V. Kilkenny and Great Southern and Western Railw. Co. . . . Home V. London and North- tern Railw. Co. Home V. Thompson . Horsley v. Cox . Hoskins v. Featherstone Hotten V. Arthur Houlditoh V. Donegal V. Nias V. Wallace Hovenden v. Lloyd . Howard v. Guun V. Woodward 1084 603 351 751 1163 1248 Wes- . 782 . 1089 . 552 . 160 270, 290 . 1025 . 1128 . 580 . 347 . 351 . 496 D2 TABLE OF OASES. Howell V. Robb . Howitt V. Hall . Hudson V. Bennett V. Osborne V. Maddison V. Temple V. Kline PAGS . 52 . 278 . 343 . 345 . 298, 1270 , 1072, 1115 . 495 Hughes V. Chester and Holyhead Eailw. Co. . . . 844, 915 ij. Metropolitan Board of Works 732 Hughes V. Morden College (Trus- tees of) . . . .6, 7, 163 V. Morris . . 405, 1152 V. Porral . . . 774 Huguenin v. Baseley . . 619, 1319 Hull and Hornsea Eailw. Co., Be 62 Humphrey v. Nowland . . 1094 Humphreys v. Harrison . . 196 — V. Humphreys 1145, 1299 V. Bugby . . 1202 . 603 . 155 . 658 . 336 . 456 . 1167 . 151 Htm V. Freeman Hunt V. Browne V. Hunt . V. Maniere V. Peake . Hunter v. Belcher V. Nockolds . Huntingtower (Lord) v. Sher- borne 1275 Hurlbut V. Phelps . . . 1070 Hutchinson ■;;. Copestake . . 428 Button V. Hepworth . . . 1287 V. Scarborough Cliff Ho- tel Co 991 Huzzey v. Field .... 24 Hyde v. Corporation of Manches- ter 728 V. Holmes .... 689 V. Warren . . . 1274 I. Ilfracombe Public ConveyanceCo. V. London and South- Western Railw. Co 1373 Illingworth v. Manchester and Leeds Eailw. Co. . . . 876 Imperial Gaslight Co. v. Clarke 1275, 1329 Imperial Gasl^ht and Coke Co. V. Broadbent 110, 111, 621, 966, 1317 1). West London Junction Gas Co. and Great Western Bailw. Co. 745, 967 Imperial Steam and Household Coal Co., Inre . . . 1003 Inchbald v. Barrington . 125, 126 V. Robinson . . 125, 126 Inderwick v. Snell . . . 981 India and London Life Assurance Co. V. Dalby . . . 1125 Inge V. Birmingham, Wolver- hampton, and Stour Valley Eailw. Co 820 Ingilby ?;. Shafto . . . 1077 Ingiam v. Morecraft ... 66 V. Stiff . . . 281, 1307 Innocent v. North Midland Eailw. Co 839, 1264 Ireland (Bank of) v. Beresford . 1219 Irish Midland Great Western Railw. Co. V. Johnson . . 979 Irwin V. Dixion .... 450 Isaac V. Humpage . . . 1159 Isenburg v. East India House Estate Co. . ■ . . 424, 1310 Isle of Wight Ferry Co., Ee . 62 Israeli v. Rodon . . . .600 Iveson V. Harris . . . 1326 Ivess V. Hunt .... 1091 Ivimey v. Stocker . . 19, 34 Izard V. Colbron . . . 640 Jack V. Fernie . . . 264 V. Tease . . . 1065 Jacklin v. Wilkins . 1283, 1284 Jackman v. Michell . . . 644 Jackson v. Cator . . 165, 166 V. Cassidy . 1289, 1294 V. Leaf . . . 1263 V. Newcastle (Duke) 425, 426 V. Riga Railw. Co. . 1275 V. Sedgwick . . 527, 528 TABLE OP CASES. xxxvu Jackson v. Shanks V. Stanhope Jacob V. Hall Jacomb o. Knight James v. Biou V. Downes V, Halls V. Dixon Jamieson v. Teague Jarrold v. Heywood V. Houlston Jarvis v. Chandler Jay V. Eichardson. Jefferson v. Bishop of Durham Jeffery v. Bowles Jefferys v. Baldwin ■ V. Boosey Jegon V. Vivian Jenkins, Be V. Bnshby V. Gething JeiTis V. Bruton V. White Jessel V. Chaplin Jew V. "Wood Jewson V. Moulson Job V. Banister 88, 222, Johnson v. Atkinson V. Edgware Railw. V. Perrin V. Peterson . V. Shrewsbury and mingham Eailw. Co. V. Swire V. Vail • V. Wyatt 429 Johnstone v. Hall Jones V. Batten . V. Bone V. Cook V. Eastern Counties Railw. Company .... 1363 V. Frost .... 614 V. Garcia del Eio . . 1270 V. Geddes . 1013, 1056 V. Gilham . . 653, 1288 V. Great Western Eailw. Co. 835 V. Hughes . . . 1074 PAGE . 370 . 547 . 1263 . 102 192, 1303 1322, 1325 . 167 . 469 . 472 . 303 272 271; 1061, 1158 . 66 275, 90 297 309 . 279 . 60 . 776 . 1345 . 356 . 377 . 1317 1366, 1367 . 1181 . 672 1042, 1083 . 631 Co. 842 603 676 Bir- . 848 . 1124 . 675 594, 1318 . 72 . 1281 97, 99 . 701 PAGE Jones V. Jones . . . 614 V. Lane . . 367, 671 V. Latimer . . . 1292 V. Maund . . . 485 V. Moore . . 415, 492 V. Paris . . .653 V. Eoberts . . 696, 1272 V. Eoyal Canal Co. . . 120 V. Tapling . . .433 V. Taylor . . . 1299 Jorden v. Money 179, 558, 663, 1147 Joseph V. Doubleday . 1274, 1275 and Webster, Be . 1290 K. Kane v. Vanderburgh . 177 Kaye v. Banks . 163 Kean v. Johnson . 747 Keane v. Athenry and Bnnis Junction Railw. Co. . 916 Kearns v. Leaf . 361 Kearsley v. Cole . 646 Keat V. Allen . 378 Keates v. Burton . 596 Keating v. Sparrow . . 1042 Keene v. Bristol . 731 Kekewioh v. Marker . . 145 Kelk V. Pearson . 446 Kell V. Nokes . 209, 228 Kelly V. Hooper . 287, 288 ' V. Hutton . 305, 345 V. Morris . 300 V. Wyman . 304,1344 Kemble v. Kean . 207 Kemp V. London and Brighton Eailw. Co. . . 874, 880 V. Kemp . . 596 — V. Sober , . 78 V. West End of London and Crystal Palace Eailw. Cc . 880 Kempe ■;;. Antill . 1057 Kennedy v. Cassillis (Earl of) 1015, 1055 . 1226 1297 . 1277 Kenny v. Browne . 383 TABLK OF CASES. Kensington (Lord) v. Metropoli- tan Eailw. Co. . . . fi42 V. White . 1152 Kent V. Pickering . . 705, 1210 V. Eicards . . . 1158 Kenworthy v. Accunor . . 1288 Kenyon v. Clarice . . . 553 Keogh V. CoUlnB . . . 155 Keppell V. Bailey . . 12, 82 Kernaghan v. Williams . . 935 Kernot v. Potter . . .259 Kerr v. Campbell . . . 1345 Kershaw v. Kalow . . 191, 1281 Kettleby i;. Kettleby . . . 386 Key V. Bradshaw V. Munsell Keynsham Company, In re Kidson v. Dilworth . Kilby V. Stanton Kimberley v. Jennings Kimpton v. Eve 79, 158, 159; Kinahan v. Bolton Kinder v. Jones King (The) v. Blatch King V. Chaplin — V. Hamlet V. King V. Martin of Spain v. Hullett V. Eossett V. Smith V. Turner of Two Sicilies v. Wilcox . — — V. Wycombe Eailw. Co. Kingham v. Maisey . King's Lynn (Mayor, &c., of) v. Pemberton .... Kingsfordw. Swinford 1179, 1188, Kingston Eoyal Marine Hotel Co., In re . Kingston-upon-HuU (Corporation oQ V. Att.-Gen Kinnersley v. North Staffordshire Eailw. Co Kirby v. Barton . 1160, Kirkman v. Ilonnor . 1313, 1314 Kirkpatrick v. Denuet . . 540 Kirwane v. Blake . . . 591 360, . 672 . 553 . 1240 . 1208 701, 1275 . 207 1322,1325 . 317 . 465 . 706 . 1109 . 1237 1213 539 1008 487 196 1298 1008 855 1036 11 1254 1250 722 1234 Kitchin v. Kitohin Knight V. Bulkeley V, Burgess V. Mosley Knill V. Chadwick Knott V. Morgan Knye v. Moore V. Moseley Kyle V. Jeffreys PAGE . 1228 . 655 204, 638 90, 161, 177 . 369 . 333 . 382 . 325 . 279 Lacon v. Liffen Ladbroke v. Lee Ladyman v. Grave Laing v. Gisbome —— V. Eeed V. Zeden . Laird v. Birkenhead Eailw. 395, 406 . 405 . 446 . 236 . 753 . 1048 Co. 458,858,859 Lamb v. Anderson . . . 1158 V. Bowes .... 1299 — — V. North London Eailw. Co 821 Lambert v. HiU . 1285, 1309 V. Northern Eailw. of Buenos Ayres Co. . . 925,926 Lamotte v. Cooke . . . 619 Lancaster and Carlisle Eailw. Co. V. North Western Eailw. Co. . 1009 V. Mary- port and Carlisle Eailw. Co. . 834 Landed Estates Investment Co. V. Weeding .... 1345 Landon v. Morris . . . 674 Lane v. Newdigate . 11, 816, 1310 !'. Stone .... 1339 V. Williams ... 2 Lanesborough v. Elwood . . 8 Lanfranchi v. Mackenzie . . 444 Lang V. Purves .... 761 Langford v. Brighton, Lewes, and Hastings Eailw. Co. . . 834 Langham v. Great Northern Eailw. Co. . . 831, 832, 1262 Langridge v. Payne . . . lOSO Laugsdale v. Bonton . . . 463 Langton v. Horton . . 414, 1180 TABLE OF CASES. Lanoy v. Duke of Athol Lansing v. Eddy Larabrie v. Browne Law V. Law Lawes v. Morgan V. Purcer Lawford v. Spicer Lawley v. Hooper V. Waldea Lawrence v. Austin . V. Smith . Lawson v. Morgan Lazenby v. White Leake v. Beckett Leary v. Eose . Leather Cloth Co. v. Leather Cloth Co. PAOE . 1057 . 1159 . 1184 . 378 . 1325 . 236 1324, 1339 . 1207 . 1074 . 439 . 291 . 524 . 1320 . 157 . 1078 American 312, 313, 836, 337, 338 V. Brassey . 87 V. Bressey . 1102 — V. Hirschfield 320, 341 V. Lorsont . 507 Leather v. Simpson . . . 371 Le Blanch v. Granger . . 391 Lechmere-Chailton's Case 1331, 1338 Lee V. Alston .... 170 v. Haley . . 345,346,1342 V. Lee .... 1275 V. Lancashire and Yorkshire Eailw. Co 910 V. Park . . 706, 1163, 1214 Leeds v. Cheetham . . 84, 652 (Duke of) i;. Amherst . 151 Lees V. Waring . . . 1217 Leeswood Iron Company . . 1241 Legard v. Johnson . . . 665 Legg V. Mathieson . . 62, 859 Legge V. Legge .... 133 Lehmann v. McArthur . 580, 1116 Leighton v. Leighton 1087, 1088, 1315, 1317 Leonard v. Attwell 1328, 1334, 1339 V. Crummelin . . 710 Leslie v. Birnie . Letton V. Gooden Levick, Ex ^larte Lewes V. Morgan 771 24 1003 1327 Lewis V. Billing Bowie's case V. Chapman V. Fothergill V. FuUarton V. Langdon V. Langham V. Nangle V. Smith PAGE . 907 . 171 . 290 42, 60 . 291, 292 . 527 . 1262 . 379 692, 1274, 1275 . 1156 . 149 . 412 Leycester v. Logan Liaraet v. Johnson Lidgett V. Williams . Liebig's Extract of Meat Co. v. Hanbury .... 344 Ligo V. Smith . . . 172 Like V. Beresford . . . 1287 Lillie V. Legh . . . .87 Lillywhite v. Trimmer . . 124 Lincoln v. Wright . 1081, 1116 Lind V. Isle of Wight Ferry Co. 977 Lindsey (Earl of) v. Great North- ern Railw. Co. . . 861, 882 Lingard v. Hibberston . . 1178 Lingwood v. Stowmarket Paper Making Co. . . . 100, 1347 Lister v. Leather . . 241, 1290 V. Payu .... 1152 Little V. Price .... 1158 Littler v. Thompson 163, 1331, 1332, 1339 Littlewood v. Caldwell . . 526 Litton's Case .... 53 Liverpool Marine Credit Co. v. Hunter 394 (Mayor &c. ol) v. Chorley Waterworks Co. . . 944 ,1304 Livingston v. Hubbs . . 585 Locke and Others, He . . 998 Lockwood V. London and North Western Eailw. Co. . . 1051 l.oder V. Arnold . . . 1332 Logan V. Earl Courtown 801, 802, 849 London and Birmingham Eailw. Co. V. Grand Junction Canal Co 1324 and Blackwall Eailw. Co. V. Limehouse District lioard of Works .... 870, 1297 xl TABLE OF CASES. London and Brighton Eailw. Co. V. Blake . . . .878 -^^-^— ^— — ^— — — V. Cooper . . . .876 and Devon Biscuit Co. (Limited), In re . . . 1002 and Mediterranean Bank V. Strutton .... 1051 and North Western Eailw. Co. V. Ackroyd . .' , 796 • V. Bradley , . . .897 V. Garnett .... 96 Lancashire Eailw. Co. V. and Yorkshire 468 ■V. Smith "Webb 897, 905, 1047 V. . 1366 • and Provincial Law As- 330 suranoe Society v. London and Provincial Joint Stock Life In- sm-ance Co and South Western Eailw. Co. V. Blackmore . . 924, 925 and Suburban Bank, In re 1252 Assurance v. London and Westminster Assurance Corpor- ation . . . • • (Bishop of) V. Pfytche . (Bishop of) V. Webb - Brighton, and South Coast 470 387 161 Eailw. Co. V. London and South Western Eailw. Co. . 845, 846 Chatham and Dover Eailw. Co., Hx parte . . . 804 Chatham and Dover Eailw. Co. V. Imperial Mercantile Credit Association .... 1321 • (City of) V. Pugh . . 149 . Cotton Manufacturing Co., In re 994 (Mayor of) v. Bolt . 1, 1259 ■ V. Hedger . 79 Londonderry and Enniskillen Eailw. Co. V. Leishman . . 622 PAGE Lonergan v. Stourton . . 555 Long V. Beard .... 25 V. Stone . . . .772 Longfield v. Cashman . . 1374 Longman v. Winchester . . 292 Lonsdale (Lord) v. Littledale . 1057 Lord Advocate v. Hamilton . 19 Lord V. Governor and Company of Copper Miners , V. Wormleighton Loscombe v. Eussell . Lovat V. Eanelagh Love V. Baker . Lovell V. Galloway Low V. Innes — V. Eoutledge V. Ward Lowe V. Joliffe . V. Lucey . Lowndes v. Bettle 4. V. Cornford . 889, 968, 987 . 1212 . 522 88, 1074, 1075 . 1020 1, 1267, 1311 . 63, 427 . 275, 278 . 276 . 710, 1314 . 154 131, 468, 1317 . 537 • V. Duncombe . . 299 ■ V. Gramett and Mosley Gold Mining Company Lloyd V, Adams V. Cheetham . V. Clark . V. CoUett . V. Eagle . , Ex parte V. Gurdon V. Loaring , 977 . 1268 . 565 . 1130 . 1120 . 567 . 691 366, 1261 . 530 V. London, Chatham, and Dover Eailw. Co. . 91, 92, 910 V. Whitty Llynvi Company v. Brogden Lucas V. Williams Luokie v. Eobson Ludlow V. Grayall Lumley v. Desborough V. Wagner 205, 207, . 1294 . 40 . 1235 . 252 . 563 . 585 214, 852, 1310 Lumsden v. Milwaukee . . 730 Lund V. Blanshard . 987, 1312, 1327 V. Midland Kaihv. Co. . 840 Lundy Granite Company, In re. Mx jM lie Reavcn . . . 1001 Luptun u. White . . . 650 TABLE OF OASES. xli Lurting v. Conn LusooTnlje v. Steer Lushington v. Boldero Lutterel's Case . Luttrell V. Irnham V. Olmins (Lord tham's Will) . Lutwych V. Southin Lynch, Ex parte Lyon V. Dillimore V. Home . V. Wilkinson PAGE . 133 . 127 . 147 . 164 8 Wal- . 670 . 1090 . 1025 438, 442 . 619 . 158 M. M'Anaspie v. Dickson . . 1018 M'Andrew v. Bassett . 313, 314, 348, 349 V. Electric Telegraph Company .... 1354 M' Arthur v. Kelly , . .463 M'Beath v. Eavenscroft 1275, 1302 Macbride v. Lindsay . . . 984 McCalmont v. Eankin . . 405 M'Carthy v. Maguire . . 1266 Macaulay v. Collier . . . 1291 «. Shackell. . . 715 Macey v. Metropolitan Board of Works 454 McClellan v. Kinnaird . . 1171 Macclesfield Brewery Company . 1252 M'Clurg's, &c. . . . 508,509 McCormac v. Queen's University 746 McCrea v. Holdsworth . . 308 M'Curdy v. Martin . . .188 V. Noak . . 116, 1296 McDermott v. Balfe . . . 656 McDougal V. Jersey Imperial Hotel Company . . .974 McEuen v. West London Wharves and Warehouses Company . 1252 IVrFadden v. Jenkins . . 1233 McEae v. Holdsworth 294, 309, 1257 V. London, Brighton, and South Coast Eailw. Co. . 595, 933 Macgregor v. Cunningham . . 1275 Macher v. Foundling Hospital . 85 Mackay v. Bluckett . . . 1231 PAGE . 531 . 363 •11148 ."ll60 476, 1317 1055, 1256 V. Stainton 1011, 1017, 1055, 1256, 1263, 1306, 1309 Macnaghten v. Boehm . . 1319 Mackenna v. Parkes . Mackenzie v. Coulson V. Mackenzie Mackintosh v. Wyatt Macklin v. Eichardson Maclaren v. Carron Company Macnamara v. Arthur M'Neill V. Garratt 1313, V. Williams . Macon, &c. v. Parker Macrae v. Smith M'Eoberts v. Washburne M'Swiney v. Haynes . Maddison v. Andrew . Magee v. Bishop of Cashel Maguire v. Grattan . V. O'Eeilly . . 1260 1322, 1337 . 287 . 938 . 1215 . 25 . 18 . 596 . 773 449, 459 . 542 Magnay v. The Mines Royal Co. 1255, 1267 Mahaney v. Lazier . . . 644 Maher v. Gorman , . . 701 Maim v. Stephens ... 81 Mair v. Himalayan Tea Company (Limited) . . 213, 651, 990 Maitland v. Backhouse . , 1227 V. Chartered Mercantile Bank of India, London, and China .... 957, 958 • V. Irving 1139 744 . 1036 575, 1277 . 1317 Major V. Park Lane Company Malcolm v. Scott Man V. Eicketts Manby v. Owen V. Eobinson . . . 633 Manchester College Case . . 608 , Sheffield, and Lin- colnshire Eailw. Co. V. Great Northern Eailw. Co. . . 889 u. Worksop Board of Health . 736 Manderson v. Commercial, &c. . 748 Mangles v, Dixon . . . 411 V. Grand Colliery Dock Company .... 941 xlii TABLE OF (;aSKS. Manly v. Hawkins Mann v. Stephens Mansfield v. Cook V. Crawford V. Shaw I'AOE 184 1332 1300 29 701 1101 Manser v. Dix . V. Northern and Eastern Conuties Railw. Co. . . 814 Mapp V. Bloook .... 1276 March v. Eastern . . . 1000 V. Keith . . . .598 Marasco v. Boiton . . . 1262 Mare v. Sandford . 364, 1131, 1132 Margetson v. Wright . . . 311 Marine Investment Co., In re . 1003 , &c. V. Hodgson . . 1158 Marker v. Kekewich . . . 146 V. Marker . 142, 165, 169 Mark wick ■;;. Pawson . . . 1303 Marlborough (Duke of) v. St. John 141 Marling v. Stonehouse and Nails- worth Railw. Co. . . . 927 Marriage v. Skiggs. In re Skiggs 1236 Man'iott v. Anchor Reversionary Company .... 399 , In re, o. London and South Western Railw. Co. . 1372 . 1355 . 769 1328, 1339 . 385 . 1201 . 714 . 560, 567 , In re . V. Tarpley Marsack v. Bailey V. Farlow V. Reeves Marsh ■;;. Keating V. Peacocke Marson v. London Chatham, and Dover Railw. Co. Marshall v. Colehill V. Coleman V. Ross V. Rutton V. Watson -V. Douglas -V. Headon - V. Nutkin -V. Porter - V. Powuiiig - V. Walker 783 1291 521 345 668 135, 471, 532 . 153 . 100, 594 . 438, 440 . 218 . 60 . 544 197 Martin v. Wright Martyr v. Lawrence M'Askie v. M'Cay Mason v. Gardner V. Mason . Master v. Kirton Masterman v. Lewin Mather, Ex parte V. Fraser V. Lay . PACE . 306 . 452 . 557 . 1205 . 79 . 530 . 1274 . 368 191, 536 . 534 687, 1332 . 303 1366, 1367, 1369 . 292 Mathews v. Smith Mathieson v. Harrod Matthews v. King Matthewson v. Stockdale Maunsell v. Midland Great West- em (of Ireland) Railw. Co. 798, 975, 1311 Maw V. Ulyatt . . 653, 1095, 1171 Mawman v. Tegg . 272, 289, 1293 Maxwell v. East, &c. . V. Hogg V. Mitchell . V. Ward . 462 300, 301 . 153 . 1032 . 1148 1367, 1369 . 239, 1293, 1295 . 683 . 1262 . 497 . 1022 . 1022 . 62 86, 1042, 1103 . 1275 . 1226 May V. Harman . Mayall v. Higby Mayer v. Spence Mayhew v. Maxwell . Maynard v. Fraser May thorn v. Palmer . Mealis v. Mealis Meals V. Meals . Mechanics, &c. v. Lynn Meek V. Carter . Meiklam v. Elmore Mellish V. Mellish Mercers' Company Mart Company v. Great North- ern Railw. Co. Merchant Ti-ading Company i: Banner ..... Merest v. Murray Merritt, IMatter of . . . Messageries Impdriales Company V. Baines .... Mestaer v. Gillespie , Mctroix)litan Railw. Co. v. Wood- house ..... V. Auction 441 1290 423 200 690 391 414 835 TABLE OF CASES. xliii Meux V. Maltby V. Smith .' PACK . 222 562, 1056, 1110 Mexborough (Earl of) v. Bower . 28, 1310 Meynell v. Surtees 878, 879, 1119 Michael v. Pripp . . . 422 Micklethwaite v. Mioklethwaite 137, 138, 156 Middleton v. Greenwood . . 593 V. Middleton . 670 Midland Railw. Co. v. Ambergate, Nottingham, and Boston, and Eastern Junction Eailw. Co. 846, 880 Midland Eailw. Co. o. Cheokley . 39 V. Manchester, Sheffield & Lincolnshire Railw. Co 852 Midland Great Western Eailw. of Ireland v. Johnson . . 586, 587 Mid-Wales Eailw. Co. v. Cam- brian Eailw. Co. . . . 847 Milburn v. London and South Western Eailw. Co. . . 1370 Miles V. Thomas 412, 413, 522, 523 V. Tobin . Milhau V. Sharp Millard v. Harvey Miller v. Cook . V. Gonnan V. Washburn Milligan v. Marsh V. Mitchell 59, 446 . 130 210, 560, 673, 1077 . 1049 . 1069 . 1071 243, 244, 1310 770, 1310 314, 335, 1317 . 386 . 1333 Millington v. Pox Mills, Ex parte V. Cobby .... V. Northern Eailw. of Buenos AyresCo 923 Milltown (Earl of) v. Stewart 1144,1291 Milner v. Goolden . . . 1234 V. Georgia, &c. . . 628 Minshawu. Jordan . . . 1316 Minter v. Williams . . . 248 Mississippi, &c. v. Ward . . 130 Mitchell V. Dors . . 30, 467 , Ex parte . . . 1251 V. Hayne . . . 649 V. Steward . . 94, 95 PAGE Mooatta v. Bell . . 375 Mocher v. Reed . . 1166 Moet V. Coustan . 314,317,340 Mogg V. Mogg . . 465,466,1263 Moggridge v. Thomas . 1261, 1284 Mohawk, &c. v. Artcher . . 936 Mohawk i;. Utica , . .936 Mold V. Wheatcroft . 14, 574, 824 MoUett V. Enequist 1267, 1268, 1288, 1298 Money v. Jordan 1147, 1274, 1329 Monkhouse v. Corporation of Bed- ford . . . 1319, 1320 Monkland v. Kirkintillock Rail- way Co . . . . 877, 887 Montague v. Hill . 1327, 1329 V. Tidcombe . . 383 Monteira v. Bannister. . . 1189 Montgomery v. Cunninghame . 150 Monypennyu. ■ Moody V. Hebberd Moore v. Blake . V. Perrell V. Gamble V. Moore . V. Eawson . Moreland v. Eiobardson Morgans. M'Adam . Morrell v. Pearson Morrison v. Moat 218, 479, 480, 518 Morris «. A shbee . . 304,305 V. Colman . . . 505 U.Kelly . . 289,1293 —u. Lessees of Ld.Berkeley 435 . 1297 . 1287 . 579 , 469 . 1158 . 668 . 462 . 768 261, 329 . 1314 V. McCuUoch V. Morris . V. Thomas . V. Wright . Mortimer v. Cotterell Mortimore v. Scares . Mosby V. Haskins Moseley v, Cressey'sCo. Moses V. Lewis V. Taylor V. Moseley . 1205 . 151, 1337 . 1069 . 302 . 133 . 1371 . 62 . 992, 993 . 484,1087 . 681 , 1274, 1283 Moss V. Anglo-Egyptian Naviga- tion Co 1346 V. Charnock . . . 414 xliv TABLE OF CASES. PAGE Mostyn v. Burdekin . . . 1141 Motley V. Downman 321, 329, 330 Mouohet V. Great Western Bail w. Co. . . • . . 837 Mounsey v. Lonsdale (Earl) . 1319 Moye V. Sparrow . . . 753 Mozley v. Alston 889, 892, 969, 987, 989 Mullen V. Homer , . . 1235 MuUoney v. Stevens . . . 310 Mulloy V. Gougli . . . 173 Mumford V. Gethling . . 504 Munro v. Wivenhoe and Bright- lingsea Railw. Co. . 911, 1290 Munns v. Isle of Wight Eailw.Co. 916 Murley ■;;. Greenham Murray v. Benbow • V. Bogue 614 291 285 494 682 Murphy v. Glass Musgiave v. Parry . . 164, Myers v. United, &c.. Guarantee Life Assurance Company . 1185 Mylne v. Dickinson . . . 1197 N. East Nabob of the Carnatic v. India Company Nash V. Derby .... Natal Land and Colonization Co. V. Good Naylor v. Taylor Neal V. Crippa V. Neale Needham v. Oxley . Nelson v. Armstrong . V. Barter . (Lord) V. Salisbury and Dorset Junction Bailw. Co. . 841 Nerotj;. Burnard . . . 1040 Nesbitt V. Tredennick 222, 1042 Neville v. Wilkinson . . 1174 Ncwall V. Elliott . . .248 V. Wilson . . 245, 248 Newark, &c. v. Elmer . . 747 Newbury, In re . . ■ . iuO V. Wren . . . 1022 1008 54 1195 1303 136 224 236 616 1183 PAGE Newby v. Harrison . . 56, 1307 Newcastle (Duke of). Be . . 188 Newdigate v. Newdigate . 156, 169 Newell V. Townshend . . 527 Newhall v. Chicago, &c. . . 937 Newham v. May . . . 1041 Newlands v. Paynter. . . 658 Newling v. Dobell . . . 496 Newman v. Franco . , . 1202 V. Milner . . .369 V. Ring 1328,1334,1337,1339 New London v. Brainard . . 731 Newmarch v. Brandling . . 29 Newport v. Taylor ... 25 Newry and Enniskillen Eailw. Co. V Ulster Eailw. Co. 1198, 1199 (Lord) V. Kilmorey (Earl of) 1340 Newsome v. Flowers . . 597, 764 Newton v. Hubbock . . . 414 , Be ... . 1289 ' V. Metropolitan Eailw.Co. 697, 856 V. Chorlton . . . 1283 New Zealand Banking Corporation Jn re. Ex parte Hankey. . 1002 Nicholas v. Nicholas Nicholls V. Ibbetson II. Maynard V. Stretton Nichols V. Chalie V. Eoe 'V. Wilson Nicholson v. Hooper . 1022 1294, 1295 . 592 , 496,1504 . 1057 . 622,1057 . 201 , 354, 548 Co. ■ V. Great Western Eailw. . 1356 . 770 . 646, 1222 ■ V. Knapp • V. Revil ■ V. Rose Nickalls v. Eaton Nicol ('. Goodall V Stockdale i'. Vaughan Ki.\on V. Roberts Nokes i: Gibbon Norbury (Lord) v (Earl) (. Norfolk (Duke) i'. Tcnnant 57 958 1063 477 388 401 86, 1097, 1100, 1285 AUeyne . 148 Kitchin . 21 1017 TABLE OF CASES. xlv PAGE Norfolk Eailw. Co. v. Bayes . 827 Norman v. Johnson . . . 181 Normanville v. Stanning 1279, 1292, 1294, 1295 Norris v. Chambres . . 1006, 1063 V. Day .... 1173 V. Hill .... 130 North V. Great Northern Eailw. Co 353 V Guinan . . . 172 V. Swing . . . 553 British Eailw. Co. v. Tod 814 Northam Bridge and Hoads (Pro- prietors of the) V. London and Southampton Eailw. Co. 877, 1264, 1308 North American Coal Co. v. Dyett 604 Northcote v. Duke . 1041, 1042 North Eastern Eailw. Co. v. Cross- land 795 V. Elliott 25, 162, 455, 795 London Eailw. 'Co. v. Me- tropolitan Board of Works . 732 Stafford Steel, Iron, and Coal Company v. Camoys (Ld.) 1094 Staffordshire Eailw. Co. v. Tinstall Local Board of Health 128 Union Eailw.Co. v. Bolton and Preston Eailw. Co. . . 908 Northumberland and Durham District Banking Co. . . 1212 Norton v. Nicholas . . . 310 Norway v. Eowe . . . 132 Norwich Eailw. Co. v. Woodhouse 827 Noton V. Brooks . . . 235 Nottidge V. Prince . , . 617 Novello V. James . . . 284 Nugent V. Nugent . . . 689 Nunn V. D' Albuquerque . . 262 V. Trusoott . . . 215 Nutbrown v. Thornton , , 60 O. Oakford v. European & American Steam Shipping Co. . . 1165 O'Brien v. O'Brien . V. Cooke O'Connell v. O'Callaghan O'Connor v. Spaight . O'Donelw. Browne . O'Donnell v. Nolan . Ogilvie V. Currie Oldaker v. Hunt Oldfield V. Cobbett 1233, Oldham v. James . Ollendorff v. Black . O'Mahony v. Dickson . O'Neil V. Browne Onslow V. . PAGR . 163 . 1340 . 654 486, 491 . 1040 . 1093 . 1000 52,'-738 1276, 1304 208, 319 275, 1030 486, 1159 . 1160 80, 158 Ooddeen v. Oakley 1267, 1268, 1301, 1311 O'Eeilly, Ex parte . . 51 Oriental Bank Corporation v. Nicholson .... 1185 V. Calrow . 1185 Oriental Financial Corporation, The,(Limited) v.Overend, Gur- ney & Co 1137 Ormonde (Marq. of) v. Kinners- ley Orr V. Dickinson Orrery (Lord) v. Newton Osbaldiston v. Simpson Osborn v. Bank, &c. . Osborne v. Donaldson V. Bales . V. Havers V. Tennant V. Williams . 172 402, 406 164 590, 615 371, 747 . 286 . 373 . 1145 1321, 1324 . 1205 . 376 704, 1017 . 708 . 535 576, 1012 Osmond v. Fitzroy Otley V. Lines . Overington v. Ward Overton v. Whitmore Owen V. Homan Oxford, Worcester, and Wolver- hampton Eailway Co. v. South Staffordshire Eailw. Co. . . 892 Oxford & Cambridgeshire (Uni- versities of) V. Eiohardson . 248, 297, 1272 Oxford's (Earl of) Case . . 1158 Oxlade i;.North Eastern Eailw.Co. 1356 1861, 1363, 1372 xlvi TABLK OF CASES. Pacific Steam Navigation Com- pany V. Gibbs . . . 1308 Pacliington v. Packington . 1279 Packingtoii's Case . . . 156 Padwiok, Ex parte, Re Duke of Newcastle .... 188 Page V. Bennett ... 87 V. Townsend . . . 307 V. Wisden . . . 304 Pain V. Coombs . . . 210 Painter, Ex parte . . . 1355 Palin 0. Gathercole . . . 1296 Palmer v. Hendrie . . . 1110 In re v. London and South Western Railway Co. . 1360 ■ V. London, Brighton, &c. Eailw. Co 1360 V. Paul . . .116 Parcell v. Nash ... 29 Pardington v. South Wales Rail- way Co 1353 Parades v. Lizardi . . . 1277 Pariente v. Bensusan . . 1328 Paris Chocolate Co. v. Crystal Palace Co. ... 210 V. Gillham . . .653 Parkers. Taswell . . 209, 555 V. Turner . . . 1121 V. Whyte ... 67 V. Winnipiseogee, &c. . 130 Parkes v. Stevens . . 265, 267 Parkham v. Aicardi . . . 656 Parkin v. Thorold . . .216 Parkinson v. Piper . . . 1120 Re V. The Great West- ern Railway Co. Parr v. Bell V. Jewell Parratt v. Parratt Parre v. Tipelady Parrish v. Stephens Parrott v. Palmer V. Shellard Parry, In re Partington v. Eooth Partridge v. Foster . 1358 . 1230 . 1133 . 693 . 1021 . 130 . 29, 31, 32 . 1201 . 921 1323, 1324, 1330, 1334, 1339 . 185 PAGE Patching v. Dubbins . 76, 1033, 1318 Patent Type Founding Co. v. V. Richard .... 240 V. Walter . . . .239 Patrick V. Harrison . . . 366 Paxton V. Dougla.ss . 702, 1040, 1263 Payn v. Hornby . . . 1177 Peachy v. Duke of Somerset . 1042 Pearce v. Cmtchfield 1313, 1314, 1336 V. Winter, &c. . . 494 V. The Wycombe Railw. Co 886, 894 Pearl v. Deacon . . . 1221 Pearse v. Cole .... 1284 V. Green . . . 487 V. Robins . . 1322, 137 Pearson v. Hoghton ... 90 Pease v. Bennett . . . 547 V. Coates ... 94 Peatross v. McLaughlin . . 547 Pechell V. Fowler . . . 548 Peek V. Matthews . . 95 V. Payne .... 1144 Peel V. , . . 1076 Peele v. Caisel . . . .387 Peeler v. Barringer . . . 201 Pelham (Lord) v. Duke of Newcastle .... 688 Pell V. Midland and South Wales Railway Co 927 V. Northampton and Banbury Junction Railway Co. . . 841 V. Stephens . . 186, 197 Penfold V. Stoveld . . .1298 Peninsular Banking Co. In re . 1240 , West Indian, and South- ern Bank v. Darthez . . 1194 Penn v. Biddy . . 261, 262, 264 !'. Fernie .... 262 u. Jack . . 261,262,268 Pennell v. Roy .... 1017 Pcnniall v. Harhorne ... 87 Ponnook v. Coe . . . . 938 Poiitland c. Somerville . . 163 Penlney v. Lynn Paving Com- missioners .... 743 TABLE OF CASES. xlvii People V. Albany, &o. V. New York . V. Bturtevant . Pepper v. Foster Perceval (Lord) u. Phipps . Percy v. Shanly Perkins v. Clements V. Deptford Pier Co. V. Pritohard . . 937 . 747 . 731 . 1215 351, 352 . 150 . 1172 . 952 . 199 Perks V. Wycombe Railway Co. 820 PeiTot V. Perrot . . 164, 603 Perry v. Barker . . . 195, 1110 V. Case .... 478 V. McBwen . . .777 V. Sbipway . . 766, 767 V. Truefitt . 332, 333, 345 V. Walker . 542, 1021, 1060 Peruvian Eailways Company v. Thames and Mersey Marine Insurance Co. . . . 1136 Peters v. Erving . 1058, 1218 Petley v. Eastern Counties Eailw. Co 900, 1262 Peto o. Brighton, Uckfield and Tunbridge Wells Railway Co. 204, 781 Petre (Lord) v. Eastern Counties Railway Co. . . . 861, 882 Pettibone v. La Crosse, &c. Philips V. Langhorn Phillipps V. Prentice . V. Prichard . Phillips V. Boardman V. Furbet V. Hudson V. Jones V. London, Brighton, and South Coast Railway Co. V. Treeby V. Worth 937 1302 1289 1265 462 545 46 1098 818 456 1191 Philpot V. Hare . . .86 Pickering v. Capetown Railw. Co. 627 •;;. Ely (Bishop of) 5, 913 V. Ilfracombe Railway Co 918 Pickford v. Grand Junction Railw. Co 901 Ridding v. How . . . 333 Pidduok V. Boultbee . Pidgeon v. D' Alton . Pierce v. Jones . V. Worth Piercy v. Humphreys ■ V. Nowle Piers V. Tinte . V. Piers , Stn Williams PAGE . 1284 . 1216 . 709 . 311 . 1164 . 1164 596, 1207 . 163 . 70 . 491 Tele- . 269 . 021 . 534 303, 304 441 716 132 150 543 Pigott V. Anglo-American graph Co. V. J'Anson Pike V. Martin V. Nicholas Pilgrim v. Auction Mart Co. Pilkington v. City of York Pillsworth V. Hopton Pim V. Davies . V. Wilson . Pinchin v. London and Blackwall Railway Co. . . 787, 788, 1278 Pitcher v. Rigby . . . 624 Pixley V. Huggins . . . 553 Plant V. Stott .... 41 Plas-yn-Mhowys Coal Co., In re 1241 Platamore i). Staple . . . 1201 Piatt V. Button . . .292 Player v. Roberts ... 30 Playfair v. Birmingham, Bristol, and Thames Junction Railw. Co. ... . 1243 Plymouth v. Archer . . 170 Pole V. Joel . 1290 Pollard V. Clayton . 577 V. Doyle . 1284 Pollock V. Gilbert . . 1158 . 113, 298 Pomfret v. Ricroft . 461 Ponsardin v. Peto 335, 336, 561 . 336 . 377 Poole's Case Poole V. Adams . . 84 V. Marsh . . 1074 Pope V. Curl . 351 Popham V. Baldwin . . 223 . 222 Ponett V. Barnes . 1075 xlviii TABLE OF CASES. Portai'lington (Lord) v. Graham 1148, 1313 V. Soulby 1054, 1130 Porter v. Clarke . . .771 Portland (Duke of) v. Hill . 34, 35 Portsmouth (Earl of) v. Partridge 1108 Portugal (King of) v. Russell Potter V. Chapman Potteries, Shrewsbury, and North Wales Railw. Co., In re . , Shrewsbury, and North Wales Eailw. Co. v. Minor Pott V. School Directors . Potts V. Levy .... V. Potts .... V. Smith .... V. Warwick and Birming- ham Canal Co. Poupard v. Pardell Powell V. Allen . V. Cockerell V. Follett ■ V. Lloyd V. Thomas V. Walworth Power V. Shiel . Powys V. Blagrave Poynder v. Great Northern Eailw, Co Pratt V. Brett .... V. Campbell V. Keith . . . , V. Walker . Preston v. Stretton Price V. Assheton V. Berrington V. Denbigh, Ruthin, and Corwen Eailw. Co. . V. Evans .... ■ V. Ley .... V. Lovett .... Price's Patent Candle Company v. Banwen's Patent Candle Co. . Prichard v. Wilson . Priestly v. Manchester and Leeds Railw. Co Prince p. ITaydin 1176 1311 189 920 777 434 135 447 . 62 , 266, 267 . 189 . 1287 1324,1325,1327 . 1032 . 1076 . 1216 . 363, 671 . 139, 140 . 832 . 158 . 551 . 1171 1285, 1287 491, 492 . 221 . 1276 926 1214 1172 567 240 18 812 1275 PAGE . 1126 . 669 1118, 1254 . 1159 . 33 . 685 Pringle v. Hartley Procter v. Robinson . Prothero v. Phelps Protherol v. Foreman Proud V. Bates . Prowett V. Mortimer . Prudential Assurance Company v. Thomas 632 Pugh V. Aston .... 355 V. Vaughan . . . 1073 Pulling V. London, Chatham, and Dover Eailw. Co. . . . 839 Pulteney v. Shelton . 79, 1314, 1336 • V. Warren . 591,1040 Pulvertoft V. Pulvertoft . 556, 642 Purcell D. Walsh . . 150 Purcer v. Brain .... 330 Pusey Horn Case (The) . . 353 Putt V. Eawsteme . . . 601 Pycroft V. Williams . . . 1313 Pyecroft v. Pyecroft . . . 1299 Pyke V. Northwood . . 1074, 1115 Q. Quarrier v. Colston . . . 1204 Queen (The) v. Prosser . 253, 1024 Queensberry (Duke) v. Shebbeare 477 R. R. V. Robinson .... 86 RadcliflFe u. Portland (Duke of) . 430 Ram V. Bradbury . . . 1299 Ramsden v. Jackson . . . 705 V. Dyson and Thornton 225, 654, 655, 1079 Randall v. Commercial Railw. Co. 1262 V. Mumford 1275, 1276, 1302 Randfield v. Randfield . . 1230 Rangeley v. Midland Railw. Co. 932 Ranken v. East and West India Docks and Birmingham Junc- tion Eailw. Co. . . 830, 1310 Rankin v. Harwood . . 1160, 1209 V. Huskisson . 217, 1036, 1310 Ransome and Others v. Eastern Counties Railw. Co. . . 1361 TABLE OP CASES. xlix Eansome, In re, v. Eastern Coun- ties Eailw. Co. 1361, 1362, 1373 Eantzen v. Eothsoliild 1327, 1334, 1338, ^ 1339 Eashleigh v. BuUer . . : 1299 EatcJiffe v. Winoli . . . 1016 Eattray v. Bishop , . 1313, 1321 Eawden v. Shadwell . 383, 1202, 1206 Eawlins v. Lambert . . 1297, 1301 Eawson v. Samuel 490, 492, 493, 494 Eawston v. Bentley ... 84 Kawstone v. Parr . . . 368 Bay v.'R&y . . . . nei Eayne v. Benedict . . .415 Bead v. Blunt . . . .182 V. Bowers .... 525 Eeade v. Bentley . . 683, 684 V. Lacy .... 274 Eeddin v. Metropolitan Board of Works 1048 Eedfleld v. Middleton . . 306 Eedmond ■;;. Goodall . . . 1075 Eees V. Pernie .... 615 Eeese Eiver Company, In re, Smith's Case . . . .999 Eeeve v. Parkins . . . 742 Eeeves v. Newenham . . 184 Eenard v. Levinstein . 234, 262, 1272 Eendnll v. Crystal Palace Co. . 981 Eenshaw v. Bean . . 428, 432 Eex V. Blatch. .... 706 Eeynell v. Sprye . 581, 582, 1040, 1263, 1318 Eeynolds v. Nelson . . . 1118 ■ ■W.Pitt . 86,88,1042 Eheam v. Smith . . . 986 Ehodes v. Buckland . . . 192 Ehymney Eailw. Co. v. Taff Vale Eailw. Co 855 Eiccard v. Prichard . . . 563 Eichards v.'Juhave . . . 707 V. Davies . . . 522 V. Noble . . 29, 54 V. Scarborough Public Market^Co. . . • .970 Eichardson v. Ardley . . 355 V. Eyton . . 215 V. Gilbert . . 286 PACK Eichardson v. Hastings . . 522 Eiches v. Owen . . 544, 690 Eichmond v. North London Eail- ■way Co 822 Ridgway v. Roberts . . . 419 V. Sneyd . . . 1104 Rigall V. Poster . . .772 Eigby V. Great Western Eailw. Co. 853, 907 Eipon (Earl of) v. Hobart . . 118 River Dun Navigation Co. v. North Midland Eailw. Co. 836, 988 Robb V. Connor . . . 1281 Roberts, In re, Powler v. Roberts 1209, 1214 — V. Borzen . . .603 V. Clarke . . .130 V. Maddocks . . 183, 1109 V. Maoord . . . 447 Robert Mary's Case ... 46 Robertson v. Great Western Rail- way Co 904 Robinson v. Bell . . . 1234 V. Brocklebank . . 1140 V. Byron 23,39,1310, 1311, 1323, 1324, 1338 V. Chartered Mercantile Bank of India, London, and China . . . .956 V. Cox ... 368 V. Hedger . . . 196 V. Litton . . 164, 167 V. MuUett . . .695 V. Phillips . . .508 V. Wrexham, Mold, and C. Quay Railw. Co. . . 921 Eobson V. Whittingham . 441 Rochdale Canal Co. v. King 10, 14, 1196, 1279 Eock V. Cooke .... 1232 Eodgers v. Nowill 1318, 1333, 1334 Roe V. Galliers .... 86 Eoganu.Weir .... 1095 Eogers v. Dan forth ... 60 V. Hull Dock Co. . 781, 940 V. Oxford, Worcester, and Wolverhampton Eailw. Co. . 800 V. Rathbun . . 1205 TABLE OF CASES. Rogers v. Payne V. Eogors V. Tudor FAOE . 646 . 360 87, 1103 . 449 . 80 86, 207 . 71 585, 1122 . 171 Eolason v. Levy Eolfe V. Paterson V. Eolfe EoUeston v. New Bolt V. White . V. Lord Somerville Eoper V. Williams ... 78 Eose V. Eose .... 222 Eoskellu Whitworth . . 1342 Eoss V. Estates Investment Co. . 992 •u.Sherer .... 960 V. Steel . . .691 V. Wright . . . .872 Eouth V. Webster . . 717, 985 Eoutledge v. Low . 275, 276, 306 Eoveray v. Grayson . . . 1216 Eowan V, Euimels Eowbottom V. Wilson Eowe V. Bant V. Wood . Eowlett V. Cattell Eoy V. Beaufort (Duke of) Eoyou V. Paul . Eimdell v. Murray V. Pettit Eushton V. Crawley Eussell V. Baber V. Harford V. Bast Anglian Railw. Co. 1318, 1323, 1324 V. London, Chatham, and . 1158 . 457 . 1217 . 1159 . 1284 . 380 . 1117 295, 1035 . 386 . 266 . 96 . 228 62 Dover Eailw. Co. V. Smith 1260, 1318 . 298 Eyde Commissioners v. Isle of Wight Perry Co. . Eyder v. Bentham . 103 435, 442 S. Sablicich v. Eussell . . .632 Sabloni^re Hotel Co., In re 994, 1240 St. Alban's (Duke of) v. Skipwith orSkipworth . . . . Ifi2 St. Germans (Earl) v. Crystal Palace Railway Company . 910 St. John's College v. Carter 1336, 1338 V. Pratt . . 1336 St. Thomas's Hospital (Governors) V. Corporation of London . 605 (Governors, &c.) V. Charing Cross Eailw. Co. 786, 978 Sainter v. Ferguson . . 211, 502 Salis (Count de) ». . 150 Salisbury and Dorset Junction Eailw. Co. 0. Churchill . . 1051 Salisbury (Marquis of) v. Glad- stone 54 V. Metropolitan Eailw. Co. . . . 54, 922, 923, 1,342 Salmon v. Eandall . . . 742 Salomans v. Laing . . . 807 Salter v. Metropolitan District Eailw. Co 977 Sampson v. Smith . . . 117 Sanders v. Pope . 1041, 1042 Sanderson v. Cockermouth and Workington Eailw. Co. . 874, 889 Sands v. Sands . Sandys v. Murray Sanxter v. Foster Sapcote V. Newport Sarazin v. Hamel Sargent v. Larned V. Seagrave . 1090 . 464 1031, 1296, 1321 309 269 269 918 Saul V. MetropoUtan Eailw. Co Saunders V.Smith 291,293,464,1035 Savoy V. Dyer . . . 1262 Saxby v. Saxby . 1334, 1336 Saxon Life Assurance Society, Be 587 Scheile v. Brakell 350 Schetz's,&c 469 Schneider v. Lizardi 1301 Schofield V. Eighth, &c. 748 Schoole V. Sail . 198 Schotsmans v. Lancashire and Yorkshire Eailw. Co. 570 Schreibcr y. Creed 89 Schurmeier v. St. Paul, &-c • 469 Schweitzer v. Atkins . 348 SchwinL'e v. London and Black- wall Railw. Co. . 788 789 , 790 Scotson V. Ganty 1289 TABLE OP CASES. PAGE Scott V. Becher 701, 703, 704, 1295, 1296, 1313 V. Liverpool (Corpora- tion) V. Nesbit ■ V. Scott Society 1165 1206 344 302 Bank , 1109, V. Stanford Scottisli Amicable Puller . Seagram v. Knight Seagraves v. Railroad Searle v. Carpenter Seaton v. Twyford Secretary of State for India v. Ka- machee Boye Sahabar Sedgewick v. Redman Seeley v. Fisher . Seeling v. Crawley Seixo V. Provezende . Selby V. Colne Valley and Hal- stead Railw. Co. — V. Crystal Palace Gas Co. 67, 457 V. Selby .... 1089 Semmes v. Columbus . . . 730 Semple v, Holland ... 63 V. London and Birming- 1127 174 959 1207 1112 712 1326 473 666 341 844 ham Railw. Co. 875, Senior v. Pawson V. Pritchard . Sergison v. Beavan Service v. Castaneda . Severns v. Woolston . Sevin v. Deslandes Sewell V. Freeston Seymour v. Ryan Shackle v. Baker V. Macaulay . Shallcross v. Oldham . Shanck v. Sniffen Sharp V. Arbuthnot . V. Ashton . V. Day V. Bank of England Shaw V. Stenton V. Wright . Sheard o. Webb Shearman ■;;. M'Gregor 1263, 1265 . 444 1, 1268, 1311 . 1282 713, 1274 . 201 . 391 . 1194 7 . 501 . 715 . 398 . 547 . 1129 . 1298 . 904 . 1349 . 1367 . 230 . 1265 86, 222, 1042, 1143 ShefBeld v. Buckinghamshire (Duchess of) . . . 613, 1065 Sheffield Waterworks v. Yeomans 1043 Sheldon v. Centre, &c. . . 748 Sheppard v. Oxenford . . . 516 Sheriff v. Coates . . . 309, 1293 Shersby v. South Eastern Railw. Co. . . . . 898 Shew V. Weir .... 155 Shine v. Gough . . . .487 Shipley v. Ritter . . .469 Shrewsbury and Chester Railw. Co. V. Shrewsbury and Birming- ham Railw. Co. . . 894, 1310 and Birmingham Railw. Co. V. London and North Wes- tern Railw. Co. V. The Stour Valley Railway Co. Shortridge v. Bosanquet Shrimpton v. Laight . Sibley v. Minton Sibthorp v. Moxom . V. Moxton . 211 850 955 326 968 1236 1236 Sidney v. Sidney . 175, 666 Sievking v. Behrens . . . 1288 Silver v. Norwich (Bishop of) . 772 Simmons v. Heaviside . . 1261 Simons v. Cridland . . 1128 V. Great Western By. Co. 1353 Simper v. Foley . . . 430, 431 Simpson v. Denison 800, 801, 849, 850 V. Pogo 392, 393, 394, 1010, 1011 V. Lord Howden 183, 671, 882, 1151 V. South Staffordshire Waterworks Company . . 941 V. Westminster Palace Hotel Company . . .977 Sims V. Commercial Railw. Co. 904 V. Estate Company . . 745 Singer Manufacturing Company V.Wilson .... 1294 Skapholme v. Hart . . .386 Skegg V. Simpson . . 1313 Skinner'fe Company v. The Irish Society . ■ . . 888, 1287 E2 TABLE OF CASES. PAGE Skipp V. Harwood . . . 1324 Slack V. Tolson . . . .386 Slew V. Bradford (Mayor, &c.) . 721 Sleeper v. Carver . . . 386 Sloman v. Walter . . .384 Small V. Currie .... 1223 Smallman v. Onions . . . 159 Smallpiece v. AnguisH . , 703 Smith, Exparte,Ee Bank of Hin- dustan, &c. (Limited) . . 1251 Be 1286 V. Adams .... 22 V. Aykwell . . 366, 704 V. Bank, &c. . . . 676 1205, 1206 . 48 . 378 . 1259 . 177 . 133 V. Bromley V. Brownlow (Earl) V. Bnming V. Clarke . V. City, &c. V. CoUyer . V. Cork and Bandon Eailw. Co 868 V. Craig . . . .629 V. Dixon .... 1297 V. Elger .... 434 V. Promont . . .526 V. Hays . . . .648 V. Jeyes .... 522 V. Johnson . . 273, 299 V. Lakeman . . . 1331 V. Leveaux . . . 487 V. London and South Wes- tern Eailway Company . 240, 241 V. Morris .... 1098 V. Mules .... 520 V. Murrell .... 1121 V. Owen . . . 123, 442 V. Reese River Silver Min- ing Company .... 992 V. Smith .... 1258 V. Stair (Earl of) . . 636 V. Swansea Dock Company . 1290 V. Target . . . .631 V. Tebbitt .... 708 V. Weguelin . . . 1005 V. Whitmore . . 620, 626 Smyth V. Carter .... 652 V. GriiBD . . . 183, 670 Smythe v. Smythe Society (The, &c.) v. &c. Soloman v. Stalnwn Soltau V. De Held PAGE . 169 ITie Morris, . 14, 951 . 1287, 1292 . 115,1286 Somersetshire Coal Canal Com- pany V. HarcouTt . . 947, 1247 Sommerhill v. Cartwright . . 648 South Eastern Eailway Company V. Brogden 481, 482, 489, 896, 897 V. Martin . . . 484, 901, 1190 South Eastern of Portugal Railw. Co., Inre . . . . 921 South Staffordshire Eailway Co. V. HaU .... 1264, 1323 Western Ry. Co. u. Coward . 827 South Yorkshire Eailway and River Dun Co. v. The Great Northern Eailway Company . 848 Southall V. British Mutual Life Assurance Society . . . 998 Southampton (Lord) v. Birming- ham Eailway Company - . 1041 Boat Co. V. Muntz . 973 V. Rawlins . . 973 Dock Company v. Southampton Harbour and Pier Board .... 489,941 Southey v. Sherwood. . 291,476 Southom V. Eeynolds . . 339 Southworth r. Taylor. . .1307 Sowerby v. Fryer . . . 176 V. Gutteridge . . 1090 Spackman v. Great Western Eailw. Company . . . 790, 791 V. Lathmore . . 857 Spalding v. Keely . • . , 1289 Sparling v. Clarson . . . 448 Sparrow v. Oxford, &c., Eailw. Co. ... 179, 791, 792 Spear !•. Cutler .... 177 Spelman i'. Woodbine . . 696 Spencer's Case .... 83 Spencer v. Jack . . . 238, 267 V. London and Birming- ham Railw. Co. 117, 903, 1036, 1310 Spicer v. Hay ward . . . 382 TABLE OF CASES. liii PAGE Spiers v. Brown .... 270 Spiller «. Spiller . . 219,894 Spokes V. Banbury Local Board of Health 122, 720, 744, 1323, 1339, 1348 Spottiswoode v. Clarke 1032, 1278 Spriaghead Spinning Co. v. Riley 717 Sprye v. Eeynell . . 581, 582 Spurgin v. White . - . . 650 Squire v. Campbell . . . 118 Staceu. Mabbot. . . . 1315 Stack V. Leonard ... 88 Stackhouse ■;;. Countess of Jersey 1317 Stackpole v. Curtis . . . 1217 Staffordshire and Worcestershire Canal Company v. Birmingham Canal Company . . 9, 10, 946 Stagg V. Knowles . . . 1303 Staight V. Burn . . . 446, 447 Stainton v. Carron Company 698, 1012 V. Woolrych . . . 737 Standish v. Mayor of Liverpool 727, 988 ■ V. Whitwell . Stanhope v. Pilkington Stanley v. Bond . V. Chester and Birkenhead Eailway Company . Stansfield v. Cubitt . V. Habergham Stapleton v. Foreign Vineyard 342 1026 1301 838 536 159 Association . V. Haymen State (The) v. Eeed Stead V. Clay V. Glay Stedman v. Hart V. Webb Steel V. Wright . Stephens, Ex parte V. Peel . V. Workman Stephenson v. Anderson V. Wilson . Sterne v. Beck . Stevens v. Benning V. Brett . V. Keating V. Paine . 350 . 406 . 1175 . 638 . 1259 . 1232 . 1263, 1265 . 84 . 491 . 343 . 1337 . 1026, 1028 . 1191 .1197,1218 . 285 . 278 . 245 . 584 Stevens v. South Devon Eailway Company . . . 807, 891 v. Wildy . . .286 Stevenson v. Anderson 368, 1274, 1288 Steward ■;;. Winters . . . 656 Stewart v. AUiston . . . 1113 V. Great Western Eailway Company . . . 909, 1256 V. and Saunders V. Eumball V. Stewart V. Smithson 909 384 8 349 684 647 681 84 212 206 1292 Stiffs. Cassell .... V. Local Board of Eastbourne Stikeman v. Dawson . Stiles V. Cooper .... Stocker v. Brocklebank V. Wedderburn Stocking V. Llewellyn Stockport District Waterworks Company ■!;. Jowett . 943,1249 V. Man- chester (Mayor, &c.) . . 976 Stockton and Hartlepool Eailw. Co. V. Leeds and Thirsk and Clarence Eailw. Cos. . 988, 1010 Stokes v. City 'Offices Co. . . 443 Stokoe V. Singers . . . 462 Stone V. Commercial Eailway Co. .... 838,900 V. Godfrey . . . 1085 — — V. Marsh .... 714 Storer v. Great Western Eailw. Co. 1338 Strachy v. Francis . . . 161 Strahan v. Graham . . . 307 Straker v. Ewing . . . 570 V. Hartland . . .402 Strathmore v. Fortune . . 1208 Stretton v. Great Western and Brentford Eailw. Cos. . . 924 Stuart V. Ancell . 1276, 1277 Sturge V. Eastern Union Eailw. Co 868 Sturgeon v. Hooker . . . 1278 Start's (Alderman) Case . . 1236 Sturz V. De la Rue . 243, 254, 1293 liv TABLE OF CASES. Styant v. Staker ... 45 Suffield V. Brown . . 204, 453 Suffolk (Earl) v. Green . . 17.3 Suisse, la re . . 962, 963, 964 Sumner v. Kelly ... 61 Sunderland v. Newton . . 79 Sutton Harbour Co. v. Hitching 1048 1242 V. Mashiter . . . 1101 V. Mumford . . . 1262 V. Montfort . . . 434 V. Norwich (Mayor, &c.) 735 ■ V. South Eastern Eailw. Co 1366, 1369 Swaine v. Great Northern Eailw. Co. . . 100, 101, 102, 429 Swainston v. Clay . . 396, 559 Swallow V. Wallingford . . 1035 Sweet V. Cater . . . .288 V. Maugham . . . 290 Sweetman v. Metropolitan Eailw. Co 781 Sweney v. Smith . . . 998 Swift V. Swift . . . 673, 678 Syers v. Brighton Brewery Co. 203, 972 Syme v. Harvey . . . 356 Symes v. Hughes . . 546, 584 Symonds v. Gibson . . . 378 V. Wilkes . . . 657 Symons v. Eeid . . . 604 Sympsou v. Prothero . . 565 T. Taft V. Harrison . 957 Talbot (Earl) v. Scott . 135, 136 Talleyrand v. Boulanger . . 1253 Tamworth (Lord) v. Ferrers !: (Lord) . . . 160, 1311 Tanfield v. Davenport . . 1021 Tanner v. Carter . . . 1291 V. Smith . 1120 Tapling v. Jones . 128, 417, 448 Tash V. Adams . . 580 Tatham v. ParUci- . 1.33s Tatton V. Mollcneux . . .177 Taunton v. Eoyal Insurance Co. !i5o 'I'lnistuck Iron Works (.'u., lie 1252 Tayler v. Great Indian sular Co. Taylor v. Allen V. Bell . V. Carpenter . V. Davis V. Field V. Gilman V, Hughes V. Sheppard V. Pillow V. Taylor V. Waters Penin- 978 . 672 . 383 . 349 . 522 . 1178 . 1196 956, 987, 1248 . 1194 . 304 . 328 . 197 Teague v. Eichards . . . 1209 Temple u. England (Bank of) . 961 Pier Co. v. Metropolitan Board of Works . . 743, 952 Teign Valley Eailway Co. v. Southwood .... 1308 Tenham v. Herbert . 1043, 131d Terrewest v. Featherby . . 1210 Thackaberry v. Christian . . 1210 Thames Plate Glass Co. v. Land and Sea Telegraph Co. . . 1001 The Justices, &c. v. The Griffin, &c 469 The People v. St. Louis . 130 The Society, &c. v. The Morris, &c 14 Thellusson v. Woodford . .681 Thiedmann i: Goldschmidt . 1128 Thomas v. Canterbury (Archp.) 1057 Thomas v. Daw . . 747 V. Gyles . . .380 V. Jones . . . 149 r. Oakley . . .466 i'. Eoberts . . . 677 V. Tyler . . 1130 V. Weeks . . .269 Thompson v. Daniel 726 v. Derham 537, 541 v. James . . 231 ! . Hudson 592, 593 ('. Simpson 371 i'. Smith . 412 r. Stanhope . . 475 !'. Geary . 1273 ('. CI u von S'J TABLE OP CASES. ly 1>AGE Thompson v. Lambert . . 1126 Thomson v. Anderson . . 628 V. Harcourt . . 591 V. London (University of) 749 V. Waterlow . . 49 Thorne v. Taw Vale Eailway and Dock Co 896 Thornhill v. Evans . . .691 V. Thornhill . . 1337 Thornton v. Conservators of Eiver Thames .... 106, 107 V. Court . . 77, 1111 V. Finch . . 62, 199 V. Kendall . . .498 V. Knight . . . 417 V. Eamsden . 224, 1079 Thorpe v. Hughes ... 2 V. Mattingley . 1167 Thrale v. Boss .... 1144 Threlfall v. Lunt . . .368 Tink V. Bundle . . . .829 Tinkler v. "Wandsworth District Board of Works . . 733, 734 Tinsley v. Lacy . . . 273 Tipping V. Eckersly . 75, 76 Todd V. Aylwin . . .578 Tonge V. Ward . . . .343 Tonson v. Walker . . 293, 1031 Tooke V. Hartley . . .195 Toulmin v. Copeland . . 962 V. Price . . . 1043 Tower v. Eastern Counties Eailw. Co 836, 837 Townley v. Deare . 1181, 1274 Townrow v. Benson . . . 1169 Tracy v. Tracy . . . 165 Traiton v. Traiton . . . 377 Transatlantic Co. v. Pietroni . 1166 Travers v. Stafford . . .1269 Travis v. Milne . . . .698 Trenton, &c. v. McKelway . 604 Tresham v. Gerrard . . . 165 Truscott V. Merchant Tailors' Co. 437 Try V. Try .... 1095 Trye v. Trye . . . 1095 Tuck V. Silver .... 1307 Tucker v. Laing . . . 1225 PAGE Tucker v. Turpin . . . 510 Tuffnell V. Constable . . . 1144 Tufton V. Harding . . .629 Tulk V. Moxhay . . 76, 77, 83 TuUett V. Armstrong . . . 1287 Tunstall v. Boothby . . . 567 Tuolumne Water Co. v. Chapman 22 Turkey (Bank of) v. Ottoman Co. 603 Turkington v. Kearman Turner v. Blamire V. Clowes V. Connor V. Cox . V. Evans V. Major V. Mirfield V. Eingwood Board of Health V. Eobinson V. Spooner V. Turner V. Wright Twort V. Twort . Tyler v. Yates . . 157 621, 988 60 1210 1208 506 512 124, 125 Highway . 460 358, 359 432, 433 1040, 1073, 1238, 1263, 1286, 1304 184, 135, 171, 179, 219 . 159 . 1049 U. UUock V. Barber . . . 563 Underwood v. Bedford and Cam- bridge Eailw. Co. . . . 787 V. Mordant . . 601 United English and Scottish Life Insurance Co., In re . . 1251 United States v. Parrott . 177, 180 Ulster Eailw. Co. v. Banbridge, Lisburn, and Belfast Eailw. Co. 929 Upmann v. Elkan . . . 1341 Usborne v. Usborne . . . 196 Uzielli, Ex parte . . .335 V. Van V. Price .... 1331 Vanbrough v. Cock . . . 1022 Vance v. East Lancashire Eailw. Co 779 Vandergucht v. De Blaquiere 667, 1034 Ivi TABLE OF CASES. PAGE Vane v. Lord Barnard . . 164 V. Cockorraouth, Keswick, and Penrith Eailw. Co. . . 836 Van Sandau, Ex parte, Be Martin 1019, 1331, 1336, 1338 Vansandau v. Rose 1313, 1314-, 1322, 1325 Vaughan, Ex parte, Re Edridge 88, 690 Veer Hajundur Wadeer v. B. I. Co. 712 Venning v. Lloyd . . . 1066 Vernon v. Dublin (City of) . 6 V. Smith ... 83 Thellusson . . .702 Vesey ■». Wilks .... 1298 Vicary v. Widger . . . 1288 Vidi V. Smith .... 1350 Vincent v. Spicer . . . 139 Viner v. Vaughan . . . 152 Viney v. Chaplin . . . 1117 Vipan V. Mortlock . . . 1269 Vyvyan v. Vyvyan . . . 633 W. Wadeer v. Bast India Co. . . 712 Wafer v. Mocatto . . 81, 1041 Waine v. Crocker . . . 1108 Wakefield v. Buccleuch (Duke) 36, 37, 1307, 1308 Walhank v. Sparks . . . 1288 Walcot V. Walker . . .292 Waldo V. Cayley . . . 1319 Walford v. Walford . . . 1319 Walker v. Ayres . . . 494 Walker v. Brewster . . . 125 Walker, Eo: parte. Graves In re 307 V. Jones . . 200, 1194 V. Micklethwaite . . 1164 V. Sheppardson . . 130 V. Wave, Hadham, and Buntingford Railw. Co. . . 915 Wall V. Cockerell . . . 1101 Wallace v. Patten . . 1092 Wallis V. Hodson . . 1G4, 681 Wallvvyn v. Coutts . 600, 641, 642 Walmeslcy v. Booth . . . 576 Walter v. Selfe .... 104 Waltham's Will (LuttrcU v. 01- mius) . . • . 670 PAGE Walton V. Crowley . . .349 V. Johnson 1037, 1229, 1259 V. Lavater . . . 1349 Wallworth v. Holt . . .522 Wandsworth Board of Works v. London and South Western Eailw. Co. . . . 109,810 and Putney Gaslight and Coke Co. ■;;. Wright . 967 Warburton ii. Hill . . . 1218 V. London and Black- Eailw.Co. . 908,1297,1298 Warburton v. Warburton . . 596 Ward V. Attomies Soo. . . 741 V. Byrne .... 504 V. Higgs .... 178 V. Jeffery .... 1121 V. Key . . . 254, 255 V. Ward . . . .462 Wardle v. Claxton . . . 1300 Ware v. Grand Junction Water- works Co. . . . 944, 985 V. Regent's Canal Co. 950, 951, 1256 Waring v. Manchester, Sheffield, and Lincolnshire Eailw. Warington v. Wheatstone Warner, Ex parte V. Paine 484, 899 . 1288 . 676 . 1163 . 1176 632, 665 . 1130 Warren v. Carey Warrender v. Warrender Wartnaby v. Shuttleworth Warwick (Duke of) v. Beanfort (Duke of) ... . 1303 V. Queen's College, Ox- ford 47 Washbume v. Gould . . .269 Washington v. Emery . 1237 Washoe Mining Co. v. Ferguson 995 Waterfall v. Penistone . . 191 Waterloo Life Insurance Co., In re 1242 Waterlow v. Bacon . 1045, 1193 Waterpark (Lord) v. Austen . 150 Waters v. Taylor 83, 528, 1101, 1192 VVatkins v. Brent . 703, 707 )'. Flanagan . 183 Watson V. Allcock . 1222 X. Ealos . 981 TABLE OF CASES. Ivii jr 492, 1292 564 185 575 25 !, 460 1319 Wattlewortk v. Pitcher Watts V. Christie , Hx parte . V. Hyde V. Kelson . Way V. Poy Weale v. West Middlesex Water- works Co. . 51, 222, 954, 1044 Weatherall v. Geering . . 88 Weatherley v. Ross . . 428, 430 Weaver, Se . . 1190, 1231 Webb V. Bird . . . .162 1). Hewitt . . .646 V. Hunt .... 441 V. Manchester & Leeds Eail- way . . . 942, 990 Webber v. Farmer . . . 582 Webster v. Dillon . . 205, 206 V. South Eastern Eailw. Co 143 V. Webster 527, 1196, 1197 Wedderburn v.Wedderburn 1040, 1061, 1263 Wedderburne v. Llewellyn Wedmore v. Bristol (Mayor, &c.), Weeks v. Heward V. Staker 1287 722 15 45 372 384 1043 324 1168 Weems v. Ventress . Wekett V. Raby Welby V. Rutland (Duke of) Welch V. Knott Welchman v. Parebrother . Weld V. London and South West- ern Railway Co. . 798 Weller v. Smeaton . . 12, 121 Wellesley's Case . . 1331 Wellesley (Lord) u. Momington (Earl of) . . 1312, 1327, 1336 Wellesley v. Wellesley 151, 155 Wells V. Attenborough . . 1049 V. Bridgeport . , . 1070 V. Estates Investment Co. 1249 West and others v. London and North Western Railw. Co. . 1363 Western v. M'Dermott . . 93 Western, &c. v. Owings . . 937 Westmeath (Earl) v. Westmeath (Countess) . . . 1227 Westminster Brymbo Coal and Coke Co. V. Clayton Wetherbee v. Dunn . Whaley v. Brancker . V. Laing V. Morgan . 1109 26, 1307 . 252 . 556 . 81 Whatman v. Gibson . Wheatleyu. Westminster Brymbo Coal Co. ... 42, 625 Wheeler i-.Malins . 1275,1276 Wheeler and Wilson Manufactur- ing Co. V. Shakespear . . 348 Whilmhurst v. Peerless . . 1150 Whiston V. Dean and Chapter of Rochester . . . .607 V. Wright . . . 1209 Whitchurch v. Hide . . .246 White V. Carmarthen, &c. Railw. Co 780 V. Cohen .... 114 V. Great Western Railw.Co. 1353 ■«. Hall .... 1015 V. Nowlan . . . . 1 50 V. Peterborough (Bishop of) 773 V. Steinwacks . . . 1274 V. Toms . . . .263 V. Walsh . . .149 V. Warner ... 86 Whitechuroh v. Holworthy . 43, 54 Whitehead v. Bennett . . 1081 V. Wood . . .181 Whitehouse v. Partridge . . 636 Whitelegg v. Whitelegg . . 1293 Whitfield i;. Bewit . . .171 V. Parfitt . . .404 V. Ralfe . . . 1021 ■;;. Rogers . . . 469 Whitman v. St. Paul, &c. . . 469 Whittaker «. Pox . . .1192 Whittaker v. Howe . . 504, 1310 Whittingham v. Burgoyne . . 366 V. Wooler . 478, 1317 Whitton V. Jennings . . 239, 1293 Whitworth v. Davis . . .538 V. Gaugain . . 187, 1292 V. Rhodes . . .194 V. Whyddon . . 1290 Whyte y. O'Brien . . 490,1169 TABLE OF OASES. Wickham v. New Brunswick and Canada Railw. Co. . . . 917 ■y.Gatrill . . .714 Wicks V. Hunt . . . .112 Wiggins V. Peppins . . . 696 Wightman v. Wheelton . . 1295 Wilbraham v. Snow . . . 601 Wilcox V. Sturt . . . 1149 Wild V. Hillas .... 1117 V. South Western Eailw. Co 780 Wildbore v. Parker . . . 1027 Wilde V. Ashley . . .589 V. Gibson . 1133, 1134 Wildy V. Mid-Hants Eailw. Co. . 931 Wiles V. Gresham . . . 599 Willau'W.Willan . . . 1319 Willcox & Gibbs Sewing Machine Co. V. Wood . Willes V. Levett Wilkinsu. Aikin Wilkinson v. Cummins V. L'Eaugier V. Rogers Williams II. Bagnall V. Baily . 267 . 1100 . 295 . 1310 . 1203 64,66 . 38 . 669 Bolton (Duke of) 152, 166 186, 490, 1289 . 172 • V. Davies - V. Day • V. Detroit - V. Earle ■ V. Ivimey ■ V. Jersey (Earl of) ■ V. Johns • V. Johnson ■ V. Lee • V. M'Namara • V. Morris . ■ V. Nash ■ V. Osborne . ■ V. Prince of Wales Life 717 85 775 120 1313, 1331 . 349 1159, 1195 . 159 . 61 . 239 . 339 Co. Co. ■ V. Roberts 671, 1018, 1158, 1317 ■ V. St. George's Harbour . 860, 12G4 ■ V. Soutli Wales Railw. 8ol,8iS7 Williams «. Williams Williamson v. Carnan V. Gihon V. Moriarty Willingdale v. Maitland Willis V. Childe Wilmoti). Lennard Wilson V. Hart . V. Hughell V. Natal Investment Com- PAGE 171, 218, 504, 1271 . 130 . 377 . 1175 . 637 . 609 . 583 . 94, 229 . 469 pany ■ V. Stanhope . • V. Townend . ■ V. Wetherherd ■ V. Wilson . 1250 . 903 426, 432 . 1166 . 663 Winch V. Birkenhead, Lanca- shire, and Cheshire Junction Railw. Co. . . 800, 801, 849 Winchelsea (Earl) v. Garetty . 388 Winchester (Bishop of) v. Four- nier 369 (Bishop of) V. Mid- Hants Railw. Co. . . 841, 928 — (Bishop of) V. Wolgar 161 Windover v. Smith . . . 310 Winn V. Wilkins . . . 372 Winscom, In re . . . 678 Winston v. Westfeldt . . 1138 Winthrop v. Murray 86, 222, 361, 1042, 1124 Wintle V. Bristol and South Wales Union Railway Co. . 456 Wise V. Great Western Railw. Co. 1353 Withall V. Tuckwell . . . 1154 Wither v. Dean, &c., of Winches- ter 90 Witherington v. Cotesworth . 198 Woloott V. Jones . . . 1171 ^^'omersley v. Church . 23 Wood V. Barker . . . 643 ('. Beadell . . 1263 V. Bernal . . . 1H5 V. Charing Cross Eailw. Co. 840, 988 c. Chart . . 302, 303 i\ Leadbitter . . 357 '•• Lyne 1288 TABLE OF OASES. lix Wood V. North Railw. Co. V. Eowcliffe V. Sutcliffe V. Tirrell V. Wood . Woodard, In re Woodcock V. Oxford and W^ ter Eailw. Co. Woodhatch v. Freeland Woodhouse v. Meredith Woodley v. Boddiagton Woodman v. Robinson Woodruff V. Eisher . Woodroffe v. Farnham Woodward v. Gyles . V. Earl Lincoln Staffordshire 827, 872 353, 354 16, 1317 ■ V. King Woodworth v. Stone . V. Edwards 302, 303 . 1229 orces- 1224, 1287 . 1290 . 1205 1330, 1339 . 115 . 1196 . 383 . 80 1314, 1323, 1325 1314, 1323, 1334 . 269 269 318 352 665 149 347 1138 Woolam V. Eatoliffe Woolsey v. Judd Worrall v. Jacoh Worsley v. Stuart Wotherspoon v. Ourrie Wray v. Purniss Wrighti;. Atkynsl40, 1040, 1262, 1263 V. Brighton Brewery Co. (Limited) . . . .203 V. Howard ... 18 V. London Dock Com- . 407 . 1058 . 1220 . 1059 and York- . 819 . 153 . 1025 . 295, 297 . 1143, 1224 pany V. Nutt . V. Sandars V. Simpson Wrigley v. Lancashire shire Eailw. Co. Wrixon v. Condran V. Vize . Wyatt V. Barnard Wyke V. Rogers Wyld V. Lewis .... 168 Wyley v. Bxhall Coal Mining Co. (Limited) . . . .969 Wynne v. Callander . . 369, 616 V. Griffith . . . 1114 V. Hughes . . . 1066 V. Jackson . . . 1204 V. Newborough (Lord) . 1089 Wynstanley v. Lee . . 435, 436 X. Xeres Wine Company (Limited), In re . . . . . 991 Y. Yarnold v. Moorhouse . . 86 Yates V. Jack . . 107, 436, 439 Year Books, 21 Edw. 481, B. pi. 33 1222 Yeomans v. Kilvington . . 1276 Yescombe v. Lander . . . 185 Yetts V. Norfolk Railw. Co. . 890 Yewens v. Robinson . . . 542 Yonge V. Eeynell . . . 1106 Yool V. Great Western Eailw. Co. 925 York, &c. V. Myers . . . 201 (Mayor, &c., of) v. Pilking- ton • . . .1060,1318 Young V. Chalkley . . 1367, 1368 V. Pernie 234, 255, 256, 1271 V. Macrae . 318, 319, 320 ■ V. Neill . . . .558 Yovatt V. Winyard . . 218, 599 Z. Zabriskie v. Jersey, &c. Zugenbuliler v. Gilliam 130 463 Order of the House of Lords, 12th August, 1807 .... 1319 STATUTES CITED. 8 Hen. 6, c. 9, s. 7 . . . 6 23 Hen. 8, c. 5 {Commissioners of Sewers) . . . 842, 1006 32 Hen. 8, o. 32 5 & 6 Edw. 6 . . . . I Eliz. c. 19 {Restraining Statute) 5 Eliz. c. 41, s. 35 . 27 Eliz. c. 4 . 31 Eliz. c. 11, s. 3 . 29 Car. 2, o. 3 (27ie Statute of Frauds). . . . . s. 12 s. 16 8 & 9 Will. 3, 0. 11, s. 8 . 9 & 10 Will. 3, c. 15 {Arbitra- tions) . 620, 622, 624, 1057, II Will. 8, c. 6 . 4 & 5 Ann. c. 16, ss. c. 17 6 Ann. c. 2 {Uegistry 7 Ann. c. 19 8 Ann. c. 19 9 Ann. c. 14, s. 1 Transactions). 12,13 Act) . 1 Geo. 1, St. 2, c. 4 Geo. 1, c. 5 7 Geo. 1, c. 27 . 1 Geo. 2, 0. 23 . 4 Geo. 2, 0. 28 . ■ s. 3 23 Geo. 2, o. 18 . 8 Geo. 2, c. 13, s. 1 3.5 19, 172 617 5 682 556 1116 656 527 384 1197 774 384 539 1192 601 296 . 279, {Oaming . 1261 . 616 , 11, 12 . 1233 . 486 . 1213 . 774 . 1042, 1075 . 58 . 478 285, 306, 307, 308 — c. 24, 3S. 4, 5 7 Geo. 3, 0. 38 12 Geo. 3 . c. 10 c. 72 493 306 815 774 478 PAGE 14 Geo. 3, c. 78, s. 83 653 17 Geo. 3, c. 57 . . 306, 307 21 Geo. 3, c. 70, s. 24 , , 713 26 Geo. 3, c. 14 . , , 154 ,, .,.., . r ^7 r-r- ^ '^ 253 949 33 Geo. 3, c. Ixxx. . 34 Geo. 3, c. 23 {Calico Printers Act) . 309 39 Geo. 3, c. 85 . 714 39 & 40 Geo. 3, c. 36 . . 961, 964 41 Geo. 3, c. 107, s. 1 . 296 Indo- sure Act) . 36 46 Geo. 3, c. 69 . . 566 47 Geo. 3, sess. 2, c. 25, s. 4 565 566 54 Geo. 3, c. 56 . . 306 c. 156 279 ,_ V 1 296 815 57 Geo. 3 . c. 29 . . . . 746 59 Geo. 3, 0. 31 . . . . 1026 3 Geo. 4, c. XV 966 4 Geo. 4, c. 76 {Marriage Ad of 1823) . 6 Geo. 4, 0. 42 7 Geo. 4, c. 45 . 9 Geo. 4, c. 73 . 0.94 . 954. 11 Geo. 4 & 1 Will. 4, c. 68 1 Will. 4, c. 36, rule 5 0. 68 (11 Geo. 4 &) . 1 & 2 Will. 4, c. 58 . 2 & 3 Will. 4, c. 71 {Prescription . 1052 . 985 955 642 387 750 1190 750 1180 Act) s. 1 ■s. 2 s. 3 s. 4 47, 449 . 55 . 9, 10 430, 436, 446 . 446 STATUTES CITED. Ixi 3 & 4 Will. 4, c. 22 {Commis- sioners of Sewers') . . . 842 c. 98, s. 3 . . 961 5 & 6 Will. 4, c. 41 {Gaming Transactions) . . . 383, 1202 c. 50 {Highways Act) .... 143,713 • c. 76 {Municipal JReform Act, 1836) . 606, 718, 722, 723, 724, 626, 728, 729 c. 8, s. 1 . . 241 6 & 7 Will. 4, c. 32 {Building Societies Act) .... 753 c. 59 . . 306 c. 100 . . 730 7 Will. 4 & 1 Vict. c. 78 . . 718 1 Vict. c. 7 . . . .623 0. 43 {Dean Forest Mines Act) . . . . 34,43 1 & 2 Vict. c. 45 {Extension of Jurisdiction of Judges of the Su- perior Courts of Common Law) 1180 c. 110 . . 61, 195 s. 8 . 542, 543 s. 13 . 185, 188 ss. 56, 57 . 567 2 & 3 Vict. c. 11 . . . 546 c. 49 {Church Build- ing Act) 765 c.54 . . .678 5 Vict. c. 5, s. 4 184, 360, 962, 964, 998 S.5 . . .360 5 & 6 Vict. c. 22 . . . 1338 c. 45 (Copyright) 274, 275, 276, 278, 285, 286, 300, 301, 302, 305, 306 s. 6 . . 305 S.13 . 303, 1293 S.15 . . 279 s. 18 272, 297, 299, 477, 682 s. 20 . . 476 281, 294 . 303 . 275 c. 100 (Copyright of Designs) . 294, 308, 310, 311 ■s. 23 ■s. 24 ■s. 29 5 & 6 Vict. c. 100, s. 4 s. 15 PAGE 309 310 6 & 7 Vict. c. 37 {Church Build- ing Act) .... 765 c. 56 . . . 311 c. 65 . . . 311 c. 73 {Attorneys and Solicitors Act) . . 1229 7 & 8 Vict. c. 12, ss. 12, 14, 19 {International Copyright Act) 277, 306 c. 85, ss. 16, 17 {Railways) .... 843 c. 94 {Church Build- ing Act) .... 765 0. 110 {Joint Stoch Companies Registration Act) 979, 1122, 1211, 1244, 1245 c. 113 . . . 957 8 Vict. c. 16 {Companies Clauses Consolidation Act) . . 859 c. 18 (Lands Clauses Con- solidation Act) . 39, 825, 940, 966 ss. 18, 21, 23, 92 .. 788, 791 s. 53 . . . 839 s. 54 . . . 839 s. 68 819, 897, 952, 965 s. 80 . . . 886 s. 84 . 820, 932, 952 s. 85 822. 824, 829, 831, 832, 886 s. 87 . . . 801 s. 92 ^82-789, 791, 826, 829, 839, 1047 s. 93 . . . 856 . 856 . 830 . 791 . 728 s. 94 s. 114 s. 123 s. 124 B. 128 862, 924, 933, 934 ss. 150-153 . . 733 8 Vict. 0. 20 {Railways Clauses Consolidation Act) . 39, 808, 810, 818, 833, 889, 914 s. 13 ... 809 s. 14 . . . 809 s. 87 791, 848, 849 STATUTES CITED. 8 & 9 Vict. c. 42 {Canal Com- panies — Carriers) . . . 800 c. 66 . . . 745 c. 89 {Ship Registry Act) ss. 34-39 . . .403 c. 106, s. 3 . . 209 c. 118 . . 621, 673 c. 126 {Lunatic Asy- lums Act, 1845) . . .108 10 & 11 Yiot. c. 17 ( Waterworks Clauses Consolidation Act, 1847) .... 942,943 s. 12 . . 942 0. 15 (Gas Works Clauses Act, 1847) . . 67 c. 34 {Towns Im- provement Clauses Act, 1847) 21, 100, 735, 742 11 & 12 Vict. {Leeds Improvement ^c«, 1848) .... 21 {Aheravon Market ^ci5, 1848) . . . .718 c. 63 {Public Health Act, 1848) 454, 735, 737, 738, 998 12 Vict. c. 29 ( Canadian Statute) 844 12 & 13 Vict. 0. 106 {Bankruptcy Act, 1849) . . . .534 s. 133 . . 536 s. 146 . . 228 s. 153 . . 620 s. 213 . . 534 c. 112, s. 50 {Metro- polis Sewers) . . . 737 13 & 14 Vict. c. 104 {Copyright in Designs) .... 310 14 & 15 Vict. c. 97 {Church Building Act) . . . 765 15 & 16 Vict. c. 5, s. 2 {Patents) 239 ■ c. 12 {Interna- tional Copyright Act) . 277 s. 8 . 303 . s. 14 . 306 ■ c. 76, ss. 210-212 {Common Law Procedure Act) 59 s. 226 . , 1369,1371 c. 80, ». 42 . . 443 c. 83 {Patents) 211 15 & 16 Vict. 0. 83, s. 25 s. 26 s. 35 s. 41 PAGE 263 248 265 257 8. 42 . 1349, 1350 s. 43 . . 260 c. 85 . . 768, 1282 c. 86 {Chancery Procedure Act, 1852) . 1258, 1267 s. 1 . . 1280 ss. 3, 4 . 1282 s. 6 . . 1280 s. 11 .1280 s. 20 . 1343 — s. 37 . 1289 s. 40 . 1280, 1292, 1294, 1295 s. 43 . . 107 s. 50 . . 749 s. 581187, 1267 S.59 1278, 1288 16 & 17 Vict. c. 137, s. 22 ( Charit- able Trusts Act, 1853) . . 609 17 & 18 Vict. c. 26, s. 61 . . 564 — c. 31 {Eaihvay and Canal Traffic Act, 1854) 792, 843, 901, 1354, 1358—1360 1363, 1364, 1372, 1373 s. 2 1350, 1356, 1358, 1361 s. 3 1351, 1373 s. 7 . . 1353 — c. 36 {Begisfration of Bills of Sale Act) 191, 396, 535, 536, 545, 550 c. 90 {An Act to repeal the Jmu-s relating to Usury, and to the Enrolment of Annuities . 182, 1205—1207 c. 104 {Merchant Shipping Act, 1854) 396, 398 402, 403, 552, 626, 627, 689, 1155, 1367 s. 70 . 398 ss. 70, 71 . 389, 400 s. 79 402, 407 STATUTES CITED. PAGE 17 & 18 Vict. c. 104, s. 504 . 401 1154—1156 s. 514 . 1370 c. 120 {The Mer- chant Shipping Acts Bepeal Act, 1854) . . . .399 c. 125 {Common Law Procedure Act, 1854) 552, 928, 1214, 1255 s. 11 511, 625 s. 17 . 620 s. 61 . 1209 s. 65 . 407 ■■ s. 79 . 1366 S3. 79—82 1869 S.82 . 1349, 1365, 1366, 1372 — s. 83 . 1254 18 Vict. c. 174 {Canadian Statute) 844 18 & 19 Viot. c. 15 {Annuities — Bent-Charges) ss. 12, 14 . 182 0. 63 {Friendly Societies) .... 1007 c. 91, s. 10 {Mer- chant Shipping Act, 1855) . 407 c. 118, s. 56 . 1107 c. 120 {Metropolis Local Management Act, 1855) 734, 761 . s. 76. . 737 ss. 83, 85 . 744 s. 88 . 103 s. 135 . 732 ss. 150-153 732, 733 s. 211 . 733 ■ c. 121 {Nuisances Removal and Diseases Preven- tion Act, 1855) . . .733 c. 122 {Metropolitan Building Act, 1855) . 5, 555 19 & 20 Vict. c. 47 {Joint Stock Companies Act, 1856) . 973, 979 c. 104 {Church Building Act) . . . 765 0. Ill {Canadian Statute) . . . 844 19 & 20 Vict. c. 112 {Local Man- agement of Metropolis) . . 761 20 & 21 Vict. c. 43, s. 6 . . 743 c. 85 . . 662, 665 c. 147 {Thames Conservancy Act, 1857) 105, 106 21 & 22 Vict. 0. 27 {Lord Cairns' Act) 64, 225, 256, 259, 268, 429, 593—595, 1169, 1346 c. 70 . . . 310 s. 5 . 308 c. 75, s. 3 . . 800 1858) ■ c. 90 {Medical Act, ■ c. 98 {The Local 732 Government Act, 1858) 723, 735 ; s. 34 . 721 — s. 68, art. 3 998 c. 104, s. 31 {Metro- polis Management) . . 103 c. 106 {Transfer Act, 1858, East India Co.) . 566 22 & 23 Vict. I). 35, ss. 1—3 . 85 ss. 4—9 . 86 c. 63 . . . 1007 23 & 24 Vict. u. 38 {Law of Seal Property), s. 1 . . 61, 185 ' s. 6 . .85 — s. 14 . 709, 1258 c. 126 {Common Law Procedure Act, 1860), s. 32 . . . 1372, 1373 s. 33 . . 1373 c. 127 {Attorneys and Solicitors Act) . . 696 ' c. 136 {Charitable Trusts Act, 1860), s. 14 . . 610 c. 154, s. 9 . . 656 24 Vict. c. 10, s. 13 . . . 1370 24 & 25 Vict. c. 21 (Wine Licenses and Eefreshment Houses Act, 1860) 97 c. iB {General Pier and Uarlour Act, 1861), s. 14 128 c. 73 . . 309, 310 c. 125 {Metropoli- tan Gas Act, 1860), ss. 6, 54 745, 967 Ixiv STATUTES CITED. PAGE 24 & 23 Vict. c. 125, s. 54 . 745 c. 134 (2%e Banlc- ruptcy Act, 1861) . . .689 s. 110 . 546 s. 192 204, 542, 544, 545 25 & 26 Vict. c. 42 {Sir John Bolt's Act) . . . 158, 178 s. 1 178, 237 s. 2 . 1270 . s. 4 . 1345 c. 63 {Merchant Shipping Act, 1862) . 399 s. 3 . 406 s. 54 . 402 s. 68 . 631 c. 68 {Copyright in Works of the Fine Arts), a. 3 307 c. 89 {The Com- panies Act, 1862), B. 47 . 1136 s. 69 953, 995^ 991 s. 85 . 994 s. 87 921, 969, 1001, 1249, 1250 s. 89 . 1249 s. 124 . 1251 ss. 129—138 1240 s. 163 921, 994, 1001, 1002, 1250 — — s. 199 . 12 c. 93 {Thames Hm- bankment Act,lS&2) . . 743 PAGE 23 & 26 Vict. c. 93, s. 4 . . 454 26 & 27 Vict. c. 92 {The Railway Clauses Act, 1863) part 3 . 845 c. 93 ( Waterworks Clauses Act, 1863) . . 943 c. 119 {Exhibition Medals Act, 1862) . . 548 27 & 28 Vict. c. 112 {Judgment Law Amendment Act), s. 1 61, 185 • s. 4. . 188 28 & 29 Vict. c. 99 {County Courts, Eqmtable Jurisdiction in) 1163 30 & 31 Vict. c. 127 {The Bail- way Companies Act, 1867) 804, 920 8. 7 . 188, 920 8. 9 . 188, 920 8. 10. . 920 8. 17 . . 920 s. 18. . 920 c. 144 {Policies of Assurance Act, 1867) . . 1127 31 Vict. c. 4 {Reversionary Irv- . 1049 32 & 33 Vict. c. 19 {The Stan- naries Act, 1869) . . .968 ■ c. 71 {Bankruptcy Act, 1869), ss. 13, 65, 71, 72 . 534, 540 33 & 34 Vict. c. 28 {Attorneys and Solicitors' Act, 1870) . . 1229 34 & 35 Vict. C.86 (37j« Regula- tion of the Forces Act, 1871) . 1463 INTEODUCTION. Definition of an Injunction. 1. An injunction is a writ remedial, issuing by the order of a Court of Equity (1), in those cases where the plaintiff is entitled to equitable relief, by restraining the commission or continuance of some act of the defendant (2). 2. The old distinction between common and special injunctions no longer exists; the Chancery Procedure Act, 1852 (15 & 16 Vict. c. 86, s. 58), has abolished the common injunction (3), and all injunctions are now special, that is to say, granted upon the merits only, and at any stage of the suit after a bill is on the file (4), and, in an extremely urgent case, an injunction has been granted upon petition and affidavit, although no bill has been on the file (5). A prima facie case must now be made by the bill and supported by affidavit (6). 3. Injunctions are either ex parte, that is to say, granted upon the ex parte statement of the plaintiff, or are such as are granted upon hearing both plaintiff and defendant. (1) And now, in some cases (wiiejjos*, tained in suits where the object of the " Injunctions at Common Law ") by a injunction was to stay proceedings at Court of Common Law acting as a law (v. Drewry on Injunctions, pp. vii.. Court of Equity. viii., Introduction ; Eden, Inj. 68. " The (2) V. Eden on Injunctions, p. 1. common injunction stays proceedings at (3) The common injunction was law till answer or further order :" Moore grantable as an order of course without v. Usher, 7 Sim. 383.) reference to the merits of the case, (4) v. Drewry, ut ante. upon the defendant making default in (5) Mayor of London v. Bolt, 5 Ves. appearing, or in pleading, answering, or 130 (Eden. Inj. 320). demurring within the time prescribed (6) Senior v. Pritchard, 16 Beav. by the then practice of the Court, and 473 ; Lovdl v. Oalloway, 17 Beav. 1. was that which was most generally ob- B INTRODUCTION. 4. The ex parte injunction is obtainable in urgent cases before the appearance of the defendant, and even without notice to him. It is an injunction that is granted where delay might produce irreparable injury to property, and is also granted in urgent cases to restrain proceedings at law (1) (2). (1) V. Drewry, p. viii., citing 8 Ves. 522 ; 2 Mer. 476 ; Lane v. Williams, 6 Ves. 798 ; Thorpe v. Biighes, 3 My. & Cr. 753. (2) Except the inter dicta and the action founded on them, there does not appear to have been any remedy in the Eoman law like the English law of Injunctions : " Erant autem interdicta formad atqite amceptiones verhorum quihus prsdor aut jubebat aliquid fieri, aut fieri prohibehat :" Inst. 1. 4, tit. 15. These interdicts were divided into three kinds, namely, " aut prohibitoria, aut restitutoria, aut exhibitoria •" lb. 1. 3, tit. 15, cl. 1 ; and examples of these in- terdicts are given in the same title. But the interdicts there described were only used in cases where public in- terests were or might be affected by the conduct of the parties interdicted from doing or not doing any act ; they were not used in cases merely private, or affecting the rights of private indi- viduals only, unless a breach of the public peace might probably result from not interfering (Sandars, Insti- tutes of Justinian, 588), and except the necessity for interference was imme- diate (lb. 74), then they were granted to protect private rights (lb ) But by the time of Justinian the interdict had become obsolete, and the same remedy was obtained by a shorter way without interdicts, namely, by an action in which judgment was given without any interdict having been previously decreed, the judgment given in this action being given without interdicts, exactly as if the action called " ulUit actio " (the " utiles actiones " were an extension of the " direclx actiones " (i. e., established by law or precedent) which embraced cases analogous to, but not among, those to which the "di- redsB " applied (Sandars, Inst. Just. 73, citing Gaius, 4, 38)) had been given in pursuance and consequence of an in- terdict, which was the old mode of pro- cedure before the change of which we are now speaking took place (Inst. L 4, tit. 15, cl. 8). Interdicts were wholly placed on the pratorian authority (Sand. lb. 589), and were prononnced by the praetors under the extraordinary jurisdiction which they exerrased in mitigation of the severity or injustice which would have arisen trom an ad- herence to the technical form of the civil law (" Prxtores pavlaiim asperi- tatem Juris civHis corrigentes :" Inst. L 3, tit. 2, cl. 3) and formed a branch of the "Jus honorarium" or law of the prKtors, as distinguished from the "Jus civile " (Sand. lb. 19, 92 ; Inst. L 1, tit. 2, cL 7. The praetor would also direct a security to be given {cautio damni in/icti) to indemnify against any future damage (damnum/utumm) as the injury to one's premises, appre- hended from the possible fall of an ill- repaired house : Inst. 1. 3, tit. 18, cl 2; Dig. 39, 2, 2 ; Sand. 439. THE LAW AND PRACTICE OF INJUI^CTIONS. PART I. OF INJUNCTIONS TO STAY WRONGFUL ACTS OF A SPECIAL NATURE (NOT BEING PROCEEDINGS IN OTHER COURTS). OHAPTEE I. Eeal Peopeety (including Leaseholds). Sect. 1. Distress — Bent — Rent-charge. 1. A Court of Equity has no jurisdiction, at the suit of an owner No Equity at of property, to restrain a mere stranger from vexatiously distrain- to restrauT''' ina: on or otherwise molestina: the tenant ; and where a vendor has ^^''^ stranger " . aistrainmg un executed a legal assignment of property to a purchaser, the Court tenant. of Chancery will not, on the application of the latter, interfere by injunction to restrain the former from illegally distraining upon the tenants of the property assigned for alleged arrears of rent accrued since the assignment (1); and where the plaintiff had demised a number of small leasehold houses to the defendant, and the defendant had committed a forfeiture, and the plaintiff had re-entered and determined the lease, and the defendant thereupon distrained upon the tenants, and prevented the plaintiff taking possession and repairing, and the plaintiff apprehended a forfei- ture, and the defendant had also, being insolvent, received the rents, and in consequence of his conduct the property had become greatly depreciated, and some of the houses had been abandoned by the tenants, a demurrer was allowed to a bill praying an (1) Best V. Drahe, 11 Hare, 369; Drake v. West, 22 L. J. (Ch.) 375. B 2 DISTRESS, ETC.-POSSESSION, ETC. Pabt I. Chapter I. Seot. 1. account of the rents and an injunction to restrain the defendant from receiving the rents and distraining (1). 2. A purchaser of one of several parcels into which land has been divided, shall not be subject to the rent-charge on the whole, and the grantor will be restrained by order (2). Property in 3. When property over which a person claims a right to distrain, reoefvOT^'"^" is in the hands of a receiver, the Court of Chancery will give leave to distrain, unless it is clear that the property is not within the power of distress (3). Sect. 2. — Possession — Quieting Possession. Defendant in possession. Plaintiff in possession. 1. Where a defendant is in possession of an estate, and a plaintiff, claiming possession, seeks to restrain him from acts of spoliation, the Court will not grant an injunction unless the acts are so flagrant as to justify it in departing from the general rule or principle (4). Where a plaintiff is in possession, and they are the acts of a stranger, the tendency of the Court is not to grant an injunction, and will leave him to his remedy at law against such stranger committing such acts, unless there are special circum- stances, or they tend to the destruction of the inheritance (5). But where a plaintiff is in possession, and seeks to restrain the de- fendant claiming title, the tendency of the Court is to grant the injunction unless there are special reasons why it should not, at least where acts do, or may tend, to the destruction or injury of the estate, and senible the tendency of modern decisions, con- tinually increasing from year to year, is -to break down the old distinctions between waste and trespass (6). In Loumdes v. Bettle, a plaintiff in possession filed a bill against a defendant claiming possession, and threatening to come upon the estate, and cut up sods, deal, and other timber, and the Court granted a perpetual injunction to restrain him from so doing, with costs (7). Mg- Canal Navigation Company v. Bir- kam Canals Navigation Company, 13 mingham Canals Navigation Com- W. B. 130. pany, Law Eep. 1 H. L. ii54. - (2) lb. llJur. (N.S.)71. 10 CANALS. Pakt I. of the public ( 1), and the water passing from the opening of the Seot, 3. ' ^o<^^ of ^ canal does not constitute a watercourse within 2 & 3 Will. 4, c. 71, s. 2 (2). Water is only 2. Parties authorized to take water from a canal for one purpose, taken from a will not be allowed to take it for another, and where, by a Canal purprae^ ' " Act, millowners were empowered to use the canal water merely authorized, for « condensing " steam, and in 1829 the defendant, being about to erect a mill, applied to the plaintiff for leave to take water for " generating " as well as " condensing," and the company did not appear to have refused the application, and the pipes were laid down in the presence of their engineers, the mill being built on the principle of using the canal waters for both purposes, and having been used in that way down to 1847, when disputes arose, and an action was brought by the company, who recovered Is. damages, but the defendant continued to take the water; the Master of the Eolls, although the company's right had been esta- blished at law with damages, held that the smallness of the damages would not prevent the Court interfering, but that they were bound by their acquiescence, and refused a perpetual injunc- unlesa there tion to restrain the defendant from taking water for the purposes forTnother'^''^ of " generating " steam (as well as " condensing ") (3). However, purpose. g^jj injunction was granted against the defendant as to another mill, acquiescence and encouragement on the part of the company not having been established (4). A mandatory 3. Where a railway company had become owners of a canal by take'down a° purchase, and were bound, by several statutes, to keep it open and wall across a navigable, and the plaintiff was the owner of a mill abutting: upon part 01 a canal . . ' or refused (here), a sort of bay in the canal, which he alleged formed part of the enjoined doing canal itself, but this fact was denied by the defendants, who built a wall across the bay, so as to make the canal of the same width here as in other parts, and the plaintiff filed his bill for an injunc- tion to make the defendants undo what had been done, and to prevent them from doing more ; the Court held that it could not make the defendants undo anything done, but that the plaintiff (1) Staffordshire and Worcestershire (3) Rochdale Canal Company v. Canal Navigation Company v. Sir- King, 16 Beav. 630 ; 17 Jur. 100 ; 22 mingham Canals Navigation Company, L. J. (Oh.) 604 ; 2 Sim. (N. S.) 78 ; L. R. 1 H. L. 254. 20 L. J. (N. S.) (Ch ) 675 ; 15 Jur. 692. (2) lb. (4) lb. more. CANALS. 11 was entitled to an injunction to restrain them from proceeding to Part I. do more, the plaintiff undertaking to bring an action at law to try sect. 3. the disputed right (1). 4. Persons, being commissioners for drainage and other purposes, Oommis- authorized by Act of Parliament to cut a canal, and required to an Act not appropriate certain sums for the construction and maintenance of g^j^^^g'^^^jii^j works to protect a harbour in which the canal was intended to pending ap- '■ _ plication to terminate, were not restrained from cutting through their own lands, Parliament at a distance from the harbour, in the event of a present insufiSciency powers to levy of funds for the completion of the undertaking, pending an appli- ^™'^^' cation to Parliament for farther powers to levy money (2). But But restrained persons authorized by Act of Parliament to cut a canal, if their upon insuffi- funds are insufficient for completion of undertaking, may, on the ^^^J °^ prompt application of the owner of lands through which they are cutting, be restrained from proceeding (3). 5. An order specifically to repair the banks of a canal and stop gates and other works, was, in Lane v. Newdegate (4), refused. But by an injunction restraining the defendant from impeding the plaintiff from navigating and using, by continuing to keep the banks, &c., out of repair, the effect of such an order was obtained. 6. Where an Act, the Monmouthshire Canal Act, provided that upon auxiliary railroads made by private individuals under the authority of the Act, the tolls should not exceed the rate charged by the canal company, which for the articles of ironstone and limestone was restricted to 2^d. a ton per mile, and it also em- powered the canal company itself, by agreement with the land- owners, to construct auxiliary railroads on which tolls not exceeding 5d. a ton per mile might be charged, and certain landowners and owners of ironworks, and among others the assignees of the Beau- fort works, formed a joint company, and, under the powers given by the Act, constructed a railroad, connecting a lime quarry called the Trivil quarry with the several ironworks, and with the railroads of the canal company, and in the partnership deed of the railway company the lessees of the Beaufort works covenanted with the other shareholders, so long, as tlie covenantors, their executors, (1) Bradbury v. Manchester, 8hef- (2) Mayor, &c., of King's Lynn v. field, and Lincolnshire Railway Com,- Pemberton, 1 Sw. 244, 250. pany, 15 Jur. 1167. (3) lb. (4) 10 Ves 192.- 12 CANALS. Pabt I. Chapter I. Sect.* 3. The Court can wind up a canal com- pany. Canal re- strained pumping in foul water creating a nuisance. administrators, or assigns, should occupy the Beaufort works, to procure all the limestone used in the said works from the Trevil quarry, and to carry all such limestone, and also all the ironstone, from the mines to the said works along the Trevil railroad, and to pay a toll of 5d. a ton per mile for the same, the Court, upon a bill by the shareholders of the Trevil railroad for an injunction to enforce the covenant against a person who had purchased the Beaufort works with notice of the partnership deed, held, that the covenant securing a toll of 5d. a ton per mile to the share- holders of the Trevil railroad was a fraud upon the canal company and the Legislature, and therefore ought not to be specifically enforced by injunction (1). 7. Where a canal company pumped foul water into their canal so as to make the canal a nuisance, it is no defence that the foul- ness was caused by other persons (2). 8. In Birmingham Canal Company v. Lloyd (3) an injunction was refused against draining preparatory to opening a coal mine, with prejudice to a canal, before establishing the right at law, upon the ground of laches for two years, and permitting expenditure. 9. The Court has jurisdiction under the Companies Act, 1852, s. 199, to wind up a canal company incorporated by Act of Par- liament, and will make a winding-up order in such a case although it may be necessary to apply for an Act of Parliament to enable the property of the company to be sold ; and a canal company, whose canal had been disused for three years, in consequence of an injunction of the Court of Chancery restraining the company from supplying the canal with water from a stream which had become polluted, and of the impossibility of obtaining a supply of water from any other source without incurring very great expense, was ordered to be wound up on its own petition (4). From this deci- sion another canal company, which had a statutory right to use the former company's canal, appealed ; but as this canal company were neither creditors nor contributories of the former company, (1) Keppell V. Bailey, 4 My. & K. 517 ; S. 0. Coop. t. Brough. 298. (2) Att.-Qen. v. Bradfwd Naviga- tion Company, 35 L. J. (Ch.) 619. (3) 18 Yes. 515; et v. Weller v. Ffmeaton, 1 Bro. 0. U. 572 ; Hanson v. Graham, 7 Ves. 307, 308. (4) In re Bradford Navigation Com- pany, Law Ec]). 10 Eq. 331 ; Att.-Oen. V. Bradford Navigation Company, 35 L. J. (Ch.) 6iy. CANALS. 13 Lord Justice James held that the appellants had no locus standi, Pabt l. Ohtapter T and that their rights in regard to the first company's canal would seot. 3. not he affected by the winding-up order (1). 10. Where the defendant was the owner of a canal, of which Mutual Tmder- the plaintiffs were large customers, and a mutual understanding (here) no had been come to between the parties, that so long as the plaintiffs an"equitaHe remained good customers of the canal they should be allowed to "S^*- use the superfluous water of the canal for the purposes of copper- works, of which they were occupiers under an agreement for lease with the defendant, and it was shewn that the use of the water of the canal, though convenient and economical, was not absolutely essential to the plaintiffs' works, Vice-Chancellor Sir W. M. James held that such an understanding did not form the foundation of an equitable right, but it would have been otherwise if the plaintiffs, with the knowledge of the defendant, had incurred expense in establishing a manufacture for which the use of the water was absolutely necessary (2). 11. There is a public right of user of a canal with boats propelled Public right of by steam power in navigating public canals, provided that it occa- -with steam sions no more than the ordinary injury to the canal which is occa- P°^^''- sioned by traction by horses (3), and in this case experiments were directed to be made by a civil engineer to ascertain the effect of steam navigation on a canal, and the Master of the EoUs, after the experiments had been made, granted a perpetual injunction at the suit of a company, as carrier, to establish their right of user of the canal with steam power, to restrain a canal company from preventing a railway company using steam power on the canal, the railway company undertaking not to exceed a speed of three miles an hour (4). 12. Where a Canal Act empowered the proprietors of mines, and their lessees, to make railways or roads across the lands of other persons intervening between the mines and the canal, to convey their minerals to the canal ; and in 1843 an agreement had been entered into between the lessees of coal mines and the owners of intervening lands, to make a tramroad across them, subject to an (1) In re Bradford Navigation Com- (3) Case v. Midland Bailway Com- ^on?/, 18 W. R. 1093. ^any, 27 Beav. 247; 5 Jur. (N. S.) (2) Banhart v. Tennant, Law Eep. 1017. 10 Eq. 141. (4) lb. 14 CANALS— WATEE. Pabt I. annual rent of £5 5s., and the lessees afterwards abandoned tLe Sect. 3. tramroad, and, without any consent except that of the tenant, made a railroad across the lands in a different direction from the tram- road, and they had also erected an engine-house for which they subsequently agreed with the mortgagee in possession to pay an additional rent of £1 158., and the defendant subsequently became owner of the lands and gave notice to the lessees that he should require an annual payment of £35, and the lessees refusing to pay that sum he gave them notice to cease the use of the railway, and subsequently he took up the rails ; upon a bill filed by the lessees, the Court held that the defendant was bound by the agreement and acts of his predecessors ; that the abandonment of the tram- road for a railway had not affected the rights of the parties, and that the defendant was not justified in taking up the rails ; and that the plaintiffs were entitled to restore them, the defendant being answerable in damages for the loss sustained by the plaintiffs (1). Eight of canal 13. A canal company obtained an injunction to restrain an in- into falls. corporated society located at the Palls of the Passaic (U. S.) from pulling down a gate and waste-way of the canal company, whose canal adjoined and was above the falls (2). Acquiescence. 14. Where after several years' enjoyment, an action was brought against millowners for getting water for other purposes than con- densing, and damages recovered, it was held that the plaintiffs were estopped by acquiescence from restricting the defendants' rights to the purpose of condensing only, and a perpetual injunc- tion was refused (3). Water. Owner of 15. The Master of the Rolls (Lord Komilly), intimated in ^erooursT ^Hwell V. Crowther (4) that an owner of freehold lands and restrained not jjjg Igggee would be restrained from working: mines under a water- to interfere _ _ ° with flow. course otherwise than in a manner not likely to prevent the plain- tiff from enjoying an uninterrupted flow of water to his works. But upon the freeholder and his lessee undertaking not to work the (1) Mold V. Wheatcro/t, 27 Beav. (3) Eochdule, &c. v. King, 21 Bng. 510. Law & Bq. 177 (Amr.) (ante, p. 10). (2) The Society, mines in coal alum existed in the coal wastes, and the coal lessees could not thoroughly work the coal without moving the pillars which sup- ported the roof ; but by doing this the alum would be rendered impossible to be reached, the House of Lords held that the coal pillars could not be removed (2). Injunction 8. In Mexborough (Earl of) v. Bower (3), the Court granted an hibitory in injunction prohibitory in form, but mandatory in its effect, against datOTvineffect ^ l^ssee, tenant of a coal mine, acting in contravention of the —to compel covenants, the tenant being restrained on motion from permitting lessee to close .. ,... . . communica- a communication with an adjoining mine to continue open, and adjoining Water to flow therefrom, the effect intended being to compel the mine. defendants to close the communication. Interlocutory 9. In Greenwich Hospital (Commissioners of) v. Blackett ("4), injunction ^ ■ -^o •, , - , , , granted (here) where the plaintms stated on their bill that certain lands were fendant denied copyhold, but did not allege circumstances sufficient to prove that the lands were ^jjgy ^gj,g g^^ ^^^ ^^^ g_^ ^^ tenant, had never worked mines, although B., by his answer, said the lands were freehold, and denied that they were copyhold, yet the Court granted an inter- locutory injunction to restrain B. from working mines till the hearing. 10. Where the lands of A., on which there was an open quarry of limestone at the time of the demise, were demised for the term of three lives, renewable for ever, reserving to the lessor and his heirs all royalties, the lessee was restrained by injunction from (1) Duhe of Beaufort v. Morris, 2 (2) Earl of Olasgmvx. Uurlett Alum Ph. 683 ; 6 Hare, 340 ; 14 Jur. 60. Company, 3 H. L. C. 25. (3) 7 Eeav. 127. (4) 12 Jur. 151. MINBS-QUABRIES. 29 raising the limestone for sale (1) ; and where a tenant for lives Pakt I. renewable for ever, having demised for years part of the lands seoi-. 4. upon which there was at the time an open quarry, which he was in the habit of working for sale, without any reservation or excep- tion in the sub-lease, the Court held the sub-tenant was not entitled to work the quarry for sale, and that his landlord had the right to enjoin him, and there is no analogy between open quarries and mines (2). 11. Where the lord of a manor who claims against the tenant Lord of manor the right of property in the mines within the manor, has stood by lo^g p^-riod . for a long period, and has allowed the tenants, without objection, te^ntlT"" to work the mines and expend large sums of money upon their work and ■^ . .... spend money mining operations, the Court — although relief by injunction is not on mines- excluded from these cases — will not assist him by making a decree ^^-^ iujuno- for an injunction against the tenants, but will leave him to his legal *^°"- remedy (3). The Court will not restrain the working of mines permitted during eight years without directing an action (4). 12. Where the lessees of a colliery having agreed to grant to Eeversioner— the lessees of a neighbouring colliery license to use a right of way original lease, euioved by the former, and the owner of the first colliery ha vine; ^•^^''^'.''iie'i J J J ' J a depriving sub- granted to the second lessees the same right of way during a term lessee of licence to use 01 years, and afterwards, by assignment irom the first lessees, a right of \¥ay, become possessed of the first colliery, and the right of way, an in- fnjoyed by junction was granted to restrain him from removing the materials orig™^l and destroying the way (5). 13. The Court granted an injunction (in this case with a view to giving the opportunity of trying the question, whether the lord could, without a special custom, open a mine, at Common Law), to a copyholder, to restrain the lord preparing to open a mine by erecting sheds and engines, &c., the Lord Chancellor acquiescing in the view that as it would be very unwilling to interfere where a mine had been opened and was actually in a working state, on the ground that the consequence might be irreparable mischief, so it (1) Parcell v. Nash, 2 Jones, 116. 673, overruling Dench v. Bampton (2) Mansfield v. Crawford, 9 Ir. Bq. before Lord Loughborough, 4 Ves. 700). B. 271. (4) Field v. Beaumont, 1 Sw. 208. (3) Parrott v. Palmer, 3 My. & K. (5) Newmarch v. Brandling, 3 Sw. 632 {et V. Bichards v. Noble, 3 Mer. 99. 30. MINES— QUARRIES. Pabt I. Chaptke I. Sect. 4. Tenant for life may open new pits for working old veins. would, on the same ground of irreparable mischief, interfere by injunction to restrain the opening, or preparing to open, a mine (1), but the Court, on a subsequent motion to dissolve the injunction — the plaintiff having failed in consequence of a mistake in his plead- ings at Law in the action to obtain a trial on the merits — declared that unless some means of procuring a speedy trial could be insured, it would dissolve the injunction (2). 14. The Court will grant an injunction, where the defendant has begun to take coal in his own land, from working into the land of the plaintiff (3). 15. If a person only threaten to open mines, the plaintiff may come into Court to restrain him from doing it (4) ; nor is it neces- sary to stay till waste is actually committed, where the intention appears, and the person insists on his right to do it (5). And if a bill is brought by a reversioner against a tenant for life, though no proof appears of waste, yet if tenant for life insists on a right to do it, and it is proved he has none, the Court will grant the reversioner an injunction (6). 16. A tenant for life of coal mines may open new pits or shafts for the working old veins of coals, for it is hazardous to grant an injunction to stay the working of a coal mine, as it may ruin the colliery for ever. So, where one seised of lands, wherein there are coal mines not opened, settled those lands on A. in tail, remainder to B. for life, and A. subsequent to the settlement opened the mines and worked them and died without issue ; B. may continue to work all the mines lawfully opened by the precedent tenant in tail though opened subsequent to the settlement (7). 17. Where the riglits of the plaintiff and the defendant are legal, the plaintiff, in asking for an injunction to protect him from a violation of his alleged legal right, ought to shew tliat the right has been established ; or that, having had no means of establishing it, but the right heing prima facie v,' ell founded, the interference of this Court is necessary to prevent that species and extent of mis- (3) MitcMl V. Bars, 6 Yes. 147. (4) Gibson v. Smith, 2 Atk. 182. (5) lb. (6) Ik (') Clavering v. Chivering, 2 P. Wins. 388 : S. C. Sel Cli. Ca. 79. (1) Orey v. Duke of Northumher- land, 13 Ves. 236 (v. Player v. Roberts, Sir W. Jones, 243, as to the right of opening a mine by the lord). (2) Grey v. DuJce of Northumber- land, 17 Ves. 281. MINES— QUAEEIES. 81 chief which this Court calls irremediable, before the right can be Part I. established by legal proceedings (1). In this case a motion had gjjoT. i. ' been made by the plaintiff in the cause, before the Master of the EoUs, that the defendant might be restrained by injunction from mining beneath the plaintiff's two messuages and lands mentioned in the bill, or in the vicinity thereof, in such a manner as in any way to damage or endanger them or their foundations ; and the Master of the Rolls having simply refused the motion, it was now renewed, by way of appeal, before the Lord Chancellor, who also refused the injunction under the circumstances, but on condition of the defendants making certain admissions for the purpose of enabling the plaintiff to bring an action, although there was reason to apprehend that if the working was continued, the plaintiff's houses upon the surface would be totally destroyed or irreparably damaged before the legal right could be decided ; the Lord Clian- cellor saying that the plaintiff's injury, if he sustained it, and ought not to have sustained it, would be, to a great extent at least, capable of reparation ; that it was a mere question of the value of the pro- perty, which must be compensated ; whereas by no possibility could the injury done to the lord be compensated, if he were prevented for a considerable length of time from exercising a right which, in a certain event, might turn out to be his to the full extent to which he claimed it ; and having already observed that the stopping the working of a mine was a thing which of all others this Court was most averse to do, though it might under certain circumstances be compelled to do it, and the Court with reluctance grants an injunction to stay working a colliery (2). 18. In Parrot v. Palmer (3), Lord Brougham points out the distinction between the cases in which the right to an account is incident to an injunction, and those in which it is independent of that relief, and the peculiarity of the cases of mines in this respect. He there says : " Whether the former of these species of relief (i.e. account) can be granted where the latter {i.e. injunction) is not competent, is a question which has been oftentimes agitated, and has perhaps never received a clear and general decision ; that is to say, a distinct judgment on the general proposition, with its (1) Biltm V. Lwd Granville, 4 Beav. 130 ; Or. & P. 283. (2) Anon. Amb. 209. (3) 3 My. & K. 632. 32 MINES— QUAEEIES. Part I. limitations. But it maybe laid down generally, that, unless in Sect. 4. the Case of mines, the rule is — no injunction, no account." And further on he says : " From the whole (of the eases noticed by him) it may be collected that although, as to timber, there exists considerable discrepancy, yet the sound rule is, to make account the incident and not the principal, where there is a remedy at Law (1) ; but that mines are to be otherwise considered, and that, as to them, the party may have an account even in cases where no injunction would lie." And then he says, " that even if it had been other- wise, even if the rule had been that there could be no account of mines in a case where no injunction lay, the rule would have had no application to the present case (2). That rule is, not that in any particular instance where, from accidental circumstances, the party fails in obtaining an injunction he cannot have an account ; it is only that where, from the nature of the question, injunction is not competent and could not be prayed, as where the waste has been committed by a former tenant, and his lease is out, or his term assigned, and consequently there is nothing to restrain, no account will lie." 19. An injunction to restrain the working of a quarry was granted to a tenant for life by Vice-Chancellor Kindersley as against a defendant claiming under a lease from the other defen- dant, for the purpose of working the freestone contained under the soil, and not denying the fact of his having worked, although the plaintiff's evidence did not distinctly prove this defendant's partici- pation in the act of working complained of (3). Eght of 20. The right to support iS incident to a grant or demise of the inoiduiit to Surface and cannot be taken away except by a clear indication in grant oi- de- ^j instrument of such an intent. Therefore, where a lease of lln^e— caiiriot ' be taken away waste land of a manor, contained an exception in favour of the except by iir.i \ r i • clear indica- lessor (the lord, of the manor) of the mines and quarries under the devised property, with full power to win and work, and also with free wayleave and passage on foot or horseback, with carriages to, from, and along the same, and the lessor covenanted, in working the mines and using the privileges and liberties reserved, to do as little damage and spoil to the soil and herbage as possible, Vice- (1) V. Bailey v Taylor, 1 Rnss. & My. 73. (2) Harrott v. Palmer, suinn. (3) Bell v. Wihon, 34 L. J. (Ch.) 572. mNES— QUARRIES. 3! Chancellor Wood held, first, that the lessor and those claiming Paet I. under him were entitled to the absolute wayleave or use qf an seot. 4. ' underground right of way, which might be used for the purpose of working minerals not under the demised property, and not merely to a right restricted to the purpose of working the mines under the demised premises ; but that the lessor was not entitled so to work the reserved mines as to let down the surface (1). 21. The title to an easement by prescription must be deduced Title by pre- either through the ancestors, or through the predecessors in title be deduced of the claimant. The estate of the bounders, under the custom of *„™gt^^g ^^ Cornwall, is in no way derived from that of the lord of the soil, or predecessors . , . , —Estate of of the owner of the mmerals, but is adverse to them ; and upon tin-bounders the determination of the estate of the bounders the lord or owner from lord— * resumes the estate and rights his possession of which was inter- q^^JJ^'^'^T rupted. Therefore, though an easement by prescription may have prescriptive been acquired by the bounders, yet on the determination of their former estate the lord or owner does not step into possession of rights so But"(here7 acquired by them, but only returns to the enjoyment of the right ^igbt to use he had originally. And where an ancient mine had from before artificial ,. I. T ■ 1 iii.-i 1 T watercourse the time 01 living memory been worked by tm-bounders, according to be pre- to the custom of Cornwall, which enables any person to mark out between a piece of waste ground the owner of which does not choose to o^ner of ■"• ° . . mines and of work the mines under it, and work them without the consent of the bounders. owner, yielding to the owner a share of the proceeds ; and the bounders had from before the time of living memory used for the purpose of their works the waters of an artificial watercourse arising in the land of another person ; and the bounders abandoned the mine in 1856, since which the owners of the minerals had been in possession; and the bounders in working this ancient mine had thus acquired a right by prescription to the use of water flowing through an artificial channel, and had begun to work it ; a bill filed by owners to restrain the diversion of the watercourse by the owner of the land in which it rose was dismissed by Vice-Chancellor Kindersley, on the ground that there was no privity of estate between the owner and the bounders, and that the owner, therefore, could not claim an easement by prescription on the ground of their enjoyment of it. But, on appeal, the Court held that an injunction (1) Proud V. Bates, 10 Jur. (N. S.) 441 ; 34 L. J. 406. D 34 MINES-QUAERIES. Paet I. Chapter I. Sect. 4. Power (here) reserved to Crown to grant subse- quent "galees'' of lower veins of coals, right to sink shaft throughupper galed yeins.- The right to coal under customary freeholds is same as in copyholds, and in absence of custom tenant no right to work the minerals. ouglit to be granted, for that it ought to be presumed that a right to use the waters had been acquired by arrangement with the owner of the mine and minerals as well as with the bounders (1). And, senible, that where an easement has been enjoyed from time immemorial by persons exercising rights in the dominant tenement, although such rights are not derived from the owner, and are, to some extent, adverse to him, yet, in the absence of express proof as to the origin of the easement, the presumption is that it belongs to the land and not to the persons exercising such rights (2). 22. Where, by virtue of an award made by the commissioners under the 1 & 2 Vict. c. 43, the plaintiffs were "galees" of a section of upper veins of coal in the Forest of Dean ; and by the rules attached to the award, any underlying veins not galed " might be galed to other parties ; but to be so worked as not to impede or injure the working of the tracts already allotted, or thereafter to be allotted or galed." The Court held, that the rule reserved to the Crown the power of granting to subsequent galees of the lower veins a right to sink a shaft through the upper veins previously galed, and that the restriction as to the mode of work- ing must be so construed as not to render the reservation nugatory, i.e., as a restriction only upon the mode of working the lower seams, when reached, and not as limiting the right of the Crown to grant liberty to sink a shaft through the upper veins in order to reach the lower (3). 23. The right to coal under customary freeholds is the same as in the case of lands of ordinary copyhold tenure. The onus lies on the tenant of customary freeholds to prove that he has the right by custom to dig for coal under his lands of that tenure, and in such lands, i.e., such as are held by copy of court roU, not at the will of the lord, but according to the custom of the manor, the freehold is in the lord, and in the absence of custom (the onus of establishing which lies upon the tenant) the tenant has no right to work the minerals (4). The existence of a customary, compiled within the period of legal memory, is conclusive evidence against the exist- (1) Ivimey v. Stoclcer, L. E. 1 Ch. Deep Coal Company {Limited) y. Goold, 396 ; 11 Jur. (N. S.) 775. 2 De G. J. & S. 600 ; 11 Jur. (N. S.) (2) lb. 865. (3) Goold V. Oreat Western Deep Coal (4) Portland {Duhe) v. Hill, L. E. Company {Limited) ; Oreat WeUerii 2 Eq. 765. MINBS-QUAEEIES. 35 ence of a custom not mentioned therein (1). And where the Part I. customary of a manor, compiled within the period of legal memory, gj-g^. 4. recognised a right in the tenants to dig coal priypriis usis, and it appeared from subsequent documents that the privilege of digging coal for their own consumption had been enjoyed by the tenants under the waste, but there was no evidence of a similar restricted enjoyment by the tenants under their customary inclosures, and there was evidence of tenants having during a long period dug coal in their customary inclosures for sale, Vice-Chancellor Sir W. P. Wood held, that the custom was restricted to digging in the waste for coal for the tenants' own consumption, and that the tenants had no right of digging coails under their customary inclosures (2). 24. Where, in a conveyance of land in Northumberland, a reser- The term. vation was made to the grantor of all " mines or seams of coal, and incudes free- other mines, metals, or minerals," under the land granted, with '*'°°°' liberty to dig, bore, work, lead, and carry away the same, and to make pits, and it appearing that freestone was always worked by quarrying in the locality, and that to work in tliis way would be the entire destruction of the land, the Court of Appeal held, varying a decision of Vice-Chancellor Kindersley, that the term " minerals " included freestone (in this case, a bed at a distance varying from six to forty feet below the surface), but that the grantor had liberty only to get the freestone by underground mining, and not by working in an open quarry (3). 25. Where the owners of land agreed to demise to A. the mine- Not being rals under it to the west of a certain fault supposed to run through to specific pei- the land in the direction of a line drawn on a certain plan, the fo™anoe— no •^ ' constructive quantity of the land being described as supposed to be eighty-three possession acres or thereabouts, and the owners made a similar agreement defendant with B. as to the minerals under the land to the east of the fault, ma™Snsuit. supposed to contain ninety-eight acres, or thereabouts, and the fault was afterwards found to run so as to leave on the west eight acres only, and no lease was executed to either of the lessees, but they entered upon and commenced working the mines agreed to be demised to them respectively ; on a bill filed by B. to restrain A. , (1) Portland (Duke) v. Hill, L. R. (3) Bell v. Wilsm, L. E. 1 Ch. 303 ; 2 Bq. 765. 2 Dr. & Sm. 395. (2) lb. V 2 36 MINES-QUAERIES. Part I. from working coal to the east of the fault, Vice-Ohancellor Sir Sect. 4. W. P. Wood held that B. was entitled to an injunction ; but the ~ Court of Appeal held that it would not, in a suit by B. for specific performance against the owners, have decreed a demise of all the minerals to the east of the fault ; and that he could not be deemed in constructive possession, so as to maintain his suit against A., and reversed the decision of the Vice-Chancellor (1). In construing the words " or thereabouts," when used to qualify the statement of the estimated quantity of mines agreed to be demised, the same prin- ciples ought to be acted upon as would guide the Court in con- struing the same words in an agreement for sale or demise of the surface (2). Former lord's 26. Where waste land had been, with the consent of the then c°osT binding" ^'^^^ °^ ^^^ manor, inclosed by a former owner of the plaintiffs' pro- on subsequent perty, and the plaintiffs had dug for minerals thereon, and a sub- injunction to sequent lord, asserting his right to the minerals, sold them to the gingfor defendant, who thereupon entered upon the property and com- nunera 8. menced digging for them ; on a bill to restrain the defendant, Vice-Chancellor Sir J. Stuart held, that the lord of the manor had not succeeded in establishing his claim, and that the plaintiffs were entitled to the minerals (3). Owner of allot- 27. In WaJcefield V. Bucdeueh {Duke of) (4), it was held upon entitled here the construction of a local Act, and the General Inclosure Act, lord working ^^ ^^°- ^' °- '^^^' incorporated therewith, that although the 32nd mines under, section of the General Inclosure Act provides that every allotment set out and sold to pay the expenses of any local Inclosure Act shall be absolutely discharged of and from all common and other rights thereon or therein, and be vested in fee simple in the pur- chaser thereof, and be held in severalty as his private and absolute property, yet, the local Act in this case, reciting that the lord of the manor was entitled to the soil of the wastes, and all mines and minerals thereunder, and directing allotments to be sold to defray the expenses of the Act, and also directing certain parts of the wastes to be allotted to the lord as a compensation for his interest in the soil, and reserving to him all the mines and minerals (1) Davis V. Shepherd, L. R. 1 Cli. (3) Ackroyd v. Briggs, 13 L. T. 410 ; 12 L. T. (N. S.) 538. (N. S.) 521. (2) lb. (4) 36 L. J. (Ch.) 179. MINES-QTJAEEIES. 37 under the lands directed to be divided and inclosed (except such Paht I. Ohaptek I as were devoted to public purposes), the Court held that the local seot. 4. Act dealt with surface rights only, leaving the lord's right to the mines untouched ; that what was sold under the local Act to pay the expenses of the inclosure was the soil or surface only, subject to the lord's right to the mines as reserved by sect. 43 of the local Act, and therefore that a purchaser of an allotment so sold was not entitled to restrain the lord from working the mines under such allotment (1). 28. Under the same Acts, where a lessee of the lord of the manor The inclosure opened and worked an iron mine under an allotment sold to defray ^^^^^J^yo^ the expenses of the inclosure, thereby causing the surface of the of lord and '■ 'JO commoner — allotment to subside, upon a bill by a sub-purchaser of the allot- and substi- ment against the lord and his lessee to restrain such working, of owner of Vice-chancellor Sir E. Malins held, that the effect of the inclosure, owner of mines as between the plaintiff and the lord, was to put an end to their ''™'^^*~*"'^ relation of lord and commoner, and to place them in the ordinary sub-lessee) position of the one being the owner of the surface, and the other of right to sup- the mines beneath it, with the most complete rights over the sur- ^"^^ °^ surface. face for the purpose of working the mines ; and that, even though the mines could not be worked at all without causing the surface to subside, the plaintiff had an absolute right to have his surface ' supported, and was entitled to restrain the defendants from letting it down (2). And it was also held, that an alleged custoin entitling An alleged the lord in liis workings to let down the surface would, if proved, to let down have been bad and void (3). But the House of Lords, on appeal, ""^''^"^ ^ ^*'^- affirming the first part of the decree below, declaring the defen- dant was owner of the mines beneath the lands, reversed that part which granted the injunction ; the lord, under the Act, being enti- tled to work the mines to the destruction of the land above, subject only to make compensation for damage. 29. Where K., the grantor of certain land, excepted and reserved Grantor can to himself, his heirs, and assigns, the mines under the land, with contr^t dero- power to work them without entering on the land, and without gate froni his being answerable for any injury which might arise to the land or ^^^ reserv- ing mines may (1) 36 L. J. (Ch.) 179. Buccleuch (Duke of) v. Wakefidd, L. R. (2) WakefieUv. Buccleuch(Duke of), 4 H. L. 377. 36 L. J. (Ch.) 763 ; L. K. 4 Eq. 613. (3) lb. 38 MINES-QUARRIES. Paijt I. to any buildings which should at any time thereafter be erected Sbot. 4. upon the land, by reason of the working of the excepted mines, rfiserve the ^'^^ without being liable to any actions or suits, costs, charges, rights of losses, damages, or expenses on account of any such injury or vertical and damage, and K., in granting another plot of land, part of the same "ppor • property^ excepted and reserved the mines, with power to work them without entering on the land, and without being answerable for any injury to the land or any buildings thereon by reason of working the excepted mines, or liable to any action on account of such injury or damage ; Vice-Chancellor Sir W. P. Wood held, that they were express contracts entitling the grantor to remove the vertical support, and also the lateral support (1) ; and also that a grant may be derogated from by express agreement (2). Prajer of a The prayer of the bill asked for a declaration that the plaintiflS working mines Were entitled to have certain land belonging to them sufficiently land^or to^""^^ Supported by the adjoining land, and the mines or minerals there- destroy under, as a right of property incident to the property in their land, lateral sup- and that they were entitled to a similar right of support from the ^°^ ' mines and minerals lying in or under their said land ; and it sought to restrain the defendant Bagnall, his engineers, servants, agents, and workmen, from working and getting the mines and minerals under the lands, adjoining to the plaintiffs' said lands, or any part thereof, in such manner or to such extent as in any way to injure the plaintiffs' said land, or the buildings thereon, or any of them, or any part thereof, or so as to deprive the plaintiffs of any lateral support to their said land and buildings, to which the plaintiffs were (as the bill affirmed) entitled, and from working or getting the mines and minerals in or under the plaintiffs' said land, or the buildings thereon, or any of them, or any part thereof, or so as to deprive the plaintiffs of any vertical support to the said land and buildings to which the plaintiffs were (as the bill affirmed) entitled (8). 30. Where proceedings were taken by a reversioner to obtain an injunction to restrain the respondents from quarrying, to whom a parol license had been granted by the lessee of the reversioner, acts having been done by the grantee of the license, on the faith of (1) Wmiams V. Bagnall, 15 W. R. 272. (2) lb. (3) lb. MINES -QUARRIES. 39 the license— the Court refused the iujunction with costs, the lessee Part i. not having been made a party (1). Sect. 4. 31. Where the barrier between two mines had been perforated, and the owner of one of them had artificially conducted his water so as to pass by the perforations into the other, that mode of removing it from his mine being most beneficial to himself, thereby causing irreparable damage to the plaintiff, Vice-Chancellor Sir W. P. Wood held, that the Court would, on an interlocutory appli- cation, grant a mandatory injunction, so as to 'keep things in the state (that is to say, oblige them to be restored to the state) in which they were ante litem motam, until the hearing (2). 32. In a suit by the M. E. Company, as owners of the Ashby-de- la-Zouch Canal, to restrain the working of a stone quarry adjoining the canal, so as to endanger the safety of the canal, where the canal company was empowered by Act of Parliament to prevent the owners of land adjoining the canal from working the mines and minerals within ten yards of it, but was required to give com- pensation for stopping any such workings, the Master of the KoUs held, first, that stone used for mending roads, and worked by quarrying from the surface, was here within the description of mines and minerals ; secondly, that the provisions of the Act as to prohibition of working and compensation extended by implication to workings more than ten yards from the canal, and that the company might prohibit the working of any mines beyond the ten yards the working of which would endanger the canal, but that they must compensate the owner for stopping mines beyond tho ten yards (3), 33. A railway company which has taken lands for the purposes A railway of their railway, under the Lands Clauses Act (8 Yict. c. 18) and Sr^ndB the Eailways Clauses Act (8 Vict. c. 20), and has had them con-''*°°°'P''®^®"* owner of sub- veyed to themselves by a conveyance in the usual form, is not jaceut and entitled to prevent the owner of the mines, subjacent or adjacent, wS^ Vasm, from working and winning away the same without making com- "^^*'''°".* *"""" pensation, and it makes no difference that the mines and minerals (1) Donegall (Marquis of) v. Gonnor, (Ch.) 476 ; v. Sohinson v. Byron, 1 Bro. 15 W. R. 888, Ir. R. 0. 0. 588. (2) Westminster Brymbo Goal and (3) Midland Railway Gompany v. Coke Gompany v. Clayton, 36 L. J. Ghechley, L. R. 4 Eq. 19. 40 MINES— QUAEEIES. Part I. are necessary for the support of the railway (1) ; and if the com- Seot. i. V^^7> after notice of intention to work, refuses to make compensa- tioa for the mines requisite for the support of their railway, they can only compel the mine-owner to work his mines in a proper manner according to the custom of the district (2). For inadver- 34. In a Suit for an account of coal wrongfully worked by the working oi defendant, where the working was inadvertent and without fraud, m^'rket'value Vice -Chancellor Sir E. Malins, in assessing the compensation for of coal only the coal got by the defendant, directed him to be charged only with the fair market value of the coal, as if the coal-field had been Prayer of bill purchased by him of the plaintiff (3). The bill prayed an injunc- oT«)arvraong- ^^'^^ *" restrain the defendant from continuing to dig and get coal fully worked, qj, cannel under any of the lands belonging to the plaintiff; that an account might be taken of the coal which had already been worked or procured by the defendant, and the prices obtained by him for the same ; that an account might also be taken of the coal which had been brought through the plaintiff's mines so worked by the defendant from other mines ; and that the defendant might be ordered to pay a proper sum for the advantage he had derived from bringing such coal through the plaintiff's mines; and the decree (without costs) declared the plaintiff entitled to the mines, and granted an injunction according to the prayer, and directed an account of the quantity of coals taken, and what the defendant was entitled to in respect thereof, and a reference whether the plaintiff was entitled to any compensation for the way-leave, or leading coal, through the plaintiff's property for the coal got under Party taking other property than the defendant's (4). In Llynvi Company v. for the Talue Srogden (5), where a mine-owner had passed his boundary, and the^lrr^ *' taken coals from his neighbour's mine, Vice-Chancellor Sir James mouth— with Bacon held, that he was liable to account for the value of the allowances for costs of raising coals at the pits mouth, with just allowances for the cost of raising, damages of ^^^ ^^o* of getting or severing ; and he directed that a further bounder" inquiry should be made whether the plaintiffs had sustained any, and what, damage by reason of the defendants having broken (1) Oreat Western Railway Com- (3) Hilton v. Woods, L. R. 4 Eq. pany v. Bennett, 36 L. J. (Q. B.) 133, 432. IT. L. (4) lb. (2) lb. (5) L. E. 11 Eq. 188. MINES— QUAEKIES. 41 through the boundary between their mine and the plaintiffs' mine, Part I. with a declaration that the defendants were liable to pay to the seot. 4. ' plaintiffs the amount of the damage which should be ascertained in the result of the inquiry, and that the costs of the suit up to the date of the decree should be paid by the defendants to the plaintiffs, and adjourned the further consideration and subsequent costs. Where the proprietors of a mine had so worked their mine by opening cuttings to draw off the water therein that they had caused the neighbouring and adjoining mine to be flooded, and from such openings they had also abstracted coal from their neigh- bour's mine, and sold the same for their own benefit, Yice-Chan- cellor James granted an injunction to restrain them from further proceeding, to stop up the existing openings and cuttings, and from making another further opening which would have the effect complained of, with compensation for what damage had been sus- tained, and an account of the value of the coal abstracted (1). 35. Where the plaintiff (lessee) filed a bill to restrain the defen- dant, another lessee, from working fire-clay or coal in a seam under any part of the lands under which the plaintiff had a license to dig fire-clay during his term, the Court held that the defendant, whose demise included fire-clay under the same lands as those to which the plaintiff's license applied, having first taken possession of the seam, the plaintiff had no right to restrain the defendant from working that seam (2). 36. Where the plaintiffs granted a lease of a coal-mine to the No obligation defendants, reserving a minimum rent of £720, to be increased to pits. £1000 in case there should be pits sunk upon the estate, with a royalty upon all coal 'gotten beyond a certain quantity, and the lessees covenanted to work the mine uninterruptedly, efficiently, and regularly, according to the usual or most improved practice, and the lessees paid the minimum rent, but only raised a small quantity of coal by working through an adjoining mine without sinking pits on the plaintiffs' property,"and the plaintiffs, being desirous of enforcing a larger amount of working, whereby an increased rent would be payable, filed a bill for specific perform- ance of the covenant in the lease. Vice- Chancellor Sir E. Malins (1) Plant V. 8toU, 21 L. T. (N. S.) (2) Garr v. Benson, L. R. 3 Oh. 524 ; 106. 18 L. T. (N. S.) 696 ; 16 W. E. 744., 42 MINES -QUARRIES. Paet I. held, that there was no obligation upon the defendants to sink Seot. 4. ' pits, although that might be the most efScient mode of workmg ; ~~ and that so long as the minimum rent was paid the defendants could not be compelled to work the mine at all ; and that the lessees had committed no breach of contract; but that, if they had done so, the remedy was at Law, and not in Equity ; and that this Court could not, by a reference to Chambers, give effect to the covenant by directions as to the management of a coal-mine, and dismissed the bill (1). Working coal 37. Where the owner of a piece of land agreed to demise the seams of coal under the land to the owners of an adjoining colliery, at a royalty on each ton of coal worked, and a dead rent of £500 if the royalties did not amount to so much ; the dead rent not to be charged for the first three years, if the necessary steps were iond fide taken with ordinary dispatch to win and work the coal ; and the lease was to contain a covenant by the lessee for working the coal in a proper and workmanlike manner ; and the lessees proceeded to work the coal by instroke or headings from their adjoining colliery, which was situated to the rise of the seams agreed to be demised ; and the lessor alleged that the lessees ought to sink a pit, and work the coal from the deep, and filed a bill to restrain them from working the adjoining colliery, and to compel payment of the dead rent, on the ground that they had not taken the necessary steps to win and work the coal. Lord Chancellor Hatherley, affirming the decision of Vice-ChanceUor Sir W. M. James, held that, under the circumstances, working the coal by instroke was working in a proper and workmanlike manner ; and that if the lessor had intended to compel the lessees to sink a pit it should have been provided for in the agreement ; and that, as the lessees were actually working the coal, irremediable damage would not be presumed (2). (1) Wlieatleyy. Westminster Brymlo L. J. (Ch.) 175 ; 22 L. T. (N. S.) 7. Coal Company, L. E. 9 Bq. 538 ; v. 2 (2) Lewis v. FothergiU, L. R. 5 Ch. Dr. & Sm. 347 ; 18 W. R. 162 ; 39 103. ( 43 ) Sect. 5. Customs — Prescription. Part I. 1. There "may unquestionably exist as to mines a custom that '- the lord of the manor cannot take without consent of the copy- holder ; and, vice versa, that the copyholder cannot touch the mine without the consent of the lord" (but, with regard to timber, "it seems ratlier admitted as a text doctrine than established by decision") : Lord Chancellor Eldon (1). 2. In Attorney-Qeneral v. Mathias (2), where the defendants claimed, as woodwards or foresters of the Crown, a right to grant . to certain free miners gales or licenses for working stone quarries in uninclosed lands, part of the Forest of Dean, the soil whereof was in the Crown, to exact gale fees or rents in respect thereof, and to apply the same to their own use without accounting to the Crown, the Court (Vice-Chancellor Wood and Mr. Justice Byles) held (independently of the considerations that the alleged right, had it existed, would have been extinguished by the Dean Forest Mines Act (1 & 2 Vict. c. 43), and that the evidence failed to establish the exercise of any such right in point of fact), that no such right could exist in point of law ; for, with regard, first, to the free miners, it was a claim to subvert the soil, and carry away the substratum without stint or limit, which could not be esta- blished (i) by custom, for it was a profit a prendre, which cannot be claimed in alieno solo ; nor (2) by prescription, for prescription, to be good, must be both reasonable and certain, and this was neither ; nor (3) by presuming a lost grant, for prescription pre- supposes a grant ; and if such a grant cannot be presumed before, a fortiori it cannot after, the period of legal memory, and a claim which cannot lawfully be made upon one of these three founda- tions cannot be substantiated by a user, however long, and is not saved by any Statute of Limitations ; and with regard, secondly, to the defendants, besides the foregoing objections, they could not shew a valid prescription exempting them, as officers of the Crown, from accounting for the proceeds of the Crown's soil which they had sold ; and the Court also held that the office of woodward or forester of the Crown is an ofBce of trust, incapable of assignment (1) Whitechurch v. Eolworthy, 19 (2) 4 K. & J. 579; 27 L. J. (Ch.) Ves. 214. 761. 44 COMMON, EIGHT OP. Paet I. without a license from the Crown founded on the return to a writ Ohapteb I Sect. 5, * of ad quod damnum. This was an information exhibited on behalf of the Crown, praying (i) that it might be declared that the defendants Maihiaa had not any right or title to grant gales or leases within any part of the forest to any person or persons whom- soever, or to exact gale fees or rents in respect thereof, and that they might be restrained from making or granting any more such grants or leases ; and that the defendant Morse might be restrained from continuing his quarry ; and (2) for an account of the quanti- ties of stone worked by or under the authority of the defendants upon Her Majesty's lands within the forest, and of the issues and profits thereof received by the defendants, and an account of the sums of money, fees, rents, and royalties received by the defendants Mathias in respect of any gales or leases made or granted by them, or any of their predecessors in title, within any part of the forest ; and the Vice-Chancellor held, that the Crown was entitled to a declaration and injunction as prayed, and also to the account asked at the Bar, except as to the gales or leases, as to which an account was asked at the Bar only in respect of such as had been granted by the defendants without adding " or any of their pre- decessors in title " (1). Sect. 6. — Common, Bight of. 1. Where an Act of Parliament empowers certain persons to deal with their own property for their own benefit, or with property in a certain place or district, or defined by a certain description, and does not by express words, or by necessary implication, import that the Legislature intended to affect the rights of other persons in other property. Courts of Law do not construe mere general words in the Act as affecting the rights of strangers as to property not within the description of that with which the Act expressly purports to deal: and whether an Act of Parliament is to be deemed a public Act, binding on ail the Queen's subjects, or merely a private Act, depends upon the nature and substance of the case, and not upon the technical consideration whether the (1) Att.-Um. V. Mathias, 4 K c& J. 579 ; 27 L. J. (Ch.) 761. COimOy, EIGHT OF. 45 Act do^ or does not contain a clause dedanng that it shall be Fasx I. deemed a pnbUe Act ; and therefore where an Act of Parliament jj^-t. & empowering commissioners to inclose the conunon lands in a certain township, reciting the titles of certain landowners, and that it wonld be greatly for the adrantage of the proprietors of the common lands that the same should be divided and indosed, enacted, that it ahonld be lawiid for the commissioners to set ont and make sach ditches, waterconrses, and bridges, of sach extent and form, and in sach sitoations, as they should deem necessary in the lands to be inclosed ; and also to enlarge, cleanse, or alter the course of and improve any of the existing ditches;, watercoorses, or Inidges, as well in and on the same lands as also in any ancient inclosares or other lands in the township, as they should deem necessary; Tice- Chaacellor Sir J. Wigram held, that the Act did not empower the commissioners to alter the drains or watercourses in the common lands from another township, and thereby to obstruct the drainage of the lands in such other township, to the damage and injury of the owners of such lands (1). 2. Where the lord of a manor (namely, the plaintifis, tenant for life, and the reversioner) incloetri part of a common, insisting it was an improvement within the Statute of Merton, and Westm, 2, the Court continued an injunction and directed a trial whether the plaiuti&, or either of them, had a right of approval in the manor, and whether sufficient common was left for the defendants, two small tenants (2). 3. Where the lord enfranchises a copyhold with all common A commim thereto belonging; though the common be extinct at Law, yet it d^ctmUT subsists in Equity (3). In this case the lord of a manor enfian- ?^* ^obsistin^ chised a copyhold, with all commons thereto belonging or ap- pertaining, and afterwards bought in all the other copyholds, and then disputed the right of common with the copyholders he had enfranchised, and at law recovered against the plaintiff, because the prescription of common to the copyhold was destroyed by the enfranchisement ; and the grant of the copyhold, with all common thereunto belonging and appertaining, gives no right of common, (1) Dawson T. Paver, 5 Hare, 415 ; (2) Weeks v. Staker, 2 Yern. SOL 11 Jnr. 766; affirmed on appeal by the (3) &yant t. Staier, 2 Vem. 250, Lord ChanceUor, Jnly 30, 1847. 2nd Ed. 46 COMMON, RIGHT OF, Part I. Chapteik I. Sect. 6. Bill lies against lord by one copy- holder on behalf, &c., to have right of common ascertained. One freehold tenant of iimnor can because when enfranchised there is no common, in point of law, belonging or appertaining thereunto (1) ; and on a bill to stay proceedings on a judgment obtained by the defendant (plaintiff at law), the Court decreedrthe plaintiff, his heirs and assigns, should hold and enjoy against the defendant the same right of common of pasture and estovers as belonged to the copyhold; and that, inasmuch as the said defendant had gone to law against equity, and recovered a judgment at law against the said plaintiff, the injunction was made perpetual, and the defendant ordered to pay the costs. 4. Where a man had granted to J. S. common in his down for 100 sheep and five rams, and the grantee, by his bill, complained that the grantor overstocked the common, so that the plaintiff could have no benefit of the grant, and prayed that the grantor might be enjoined not to overstock, &c., the Court dismissed the bill (2), and it should seem that the plaintiff has an action at law (3) 5. A bill will lie against the lord by one copyholder on behalf of himself and the other copyholders, being numerous, to have their rights of common ascertained ; but one copyholder not suing on behalf of all cannot maintain such a bill ; and where one indi- vidual was seised of the whole of the hereditaments held of a manor, with the exception of one small tenement, the owners of which were not made parties to the suit, the Lord Chancellor, Lord Chelmsford, held, reversing the decision of the Blaster of the Rolls, Lord Eomilly, and dismissing the bill with costs, including the costs of the Court below and of the appeal, that an individual in such a position could not file a bill praying a declaration of his commonable rights as against the lord, and an injunction to restrain the lord from infringement thereof, his remedy being by action at law ; and a bill to determine manorial customs may be filed by one person, but only as a bill of peace on behalf of the individual and other parties (4). 6. A suit for the pui-pose of establishing a right of common over the wastes of a manor may be maintained by one freehold tenant (1) Dorson v. Hunter, Key, 136. (2) Fines v. Cobb, 2 Vera. 116, 2nd Ed. ; Eq. Cas. Abr. 103, pi. 3. (3) F. N. B. 125; licbert 3Iary's Case, 9 Eep. 112. (4) Fhil/ips V. Ihidson, L. E. 2 Ch. 243 ; 15 W. K. 370. COMMON, EIGHT 0¥. 47 of the manor on behalf of himself and all other freehold tenants. Part I. It is not incumbent on the plaintiff in such a suit to prove that a seot. 6. right of common was granted at the same time as the land; but~^^^^T^^ the Court will presume the grant where the user has been long- on behalf of continued and uninterrupted, and the burden of proof lies on the all other free- lord who seeks to disturb the long-continued user. Where the lord has attempted to stop the user of a common, the fact that some of the tenants have yielded to such attempts is not an inter- ruption of the right within the meaning of the Prescription Act (2 & 3 Will. 4, c. 71), so as to bar the rights of freeholders who, as a body, have never yielded to, or acquiesced in, the claim of the lord. The bill prayed for a declaration that the plaintiffs and Prayer of such other freehold tenants of the lords of the said manor were entitled to various common rights, and for an injunction to restrain the defendant college, their servants, agents, and workmen, from inclosing, or suffering to remain or be inclosed, any part of the three commons named, and from letting or agreeing to let any part of the commons as a practice-ground for the exercise of artillery, cavalry, and infantry, and from in any manner disturb- ing or interfering with any of the said rights of the plaintiffs and the other freehold tenants of the lords of the said manor on and over the three commons, or any or one of them ; or interrupting their free ingress to and egress from the same, or any or one of them ; and in particular from erecting, or commencing to erect, and from entering into any agreement as to the erection, of any houses, buildings, or fences upon any part of any one of the three commons, and from allowing any roads or paths recently stopped up to remain so stopped up (I). A bill will lie on behalf of free- hold tenants of lands originally demesne of a manor to establish their commonable rights in respect of their several tenements (2), and an injunction was granted restraining the defendant from putting up fences so as to prevent the commoners from exercising the right to depasture their cattle, and take gorse, turf, and gravel as they had done before the institution of the suit. One who is a freehold and copyhold tenant of a manor can maintain a suit on A freehold and copyhold (1) Warwick v. Queen's CnUege, (2) Betts v. Thompson, 18 W. E. Oxford, L. E. 10 Eq. 105 ; 18 W. R. 1099. 719; 39 L.J. (Ch.) 636. 48 WAY, EIGHT OF. Pakt r. behalf of himself and all other the freehold and copyhold tenants, Sect. 6. " notwithstanding the rights of each freeholder are separate and tenant can distinct from those of the copyholders. Where, in 1618, an sue on behalf, arrangement had been made between the lord of a manor and the tenants that a specified extent of the waste might be approved, and such arrangement had not been subsequently disturbed until 1866, the Court held, that on approving a further portion of the waste the burden lay on the lord of shewing that enough pasture was left for the use of the tenants. The bill was filed by the plaintiff on behalf of all other the freehold and copyhold tenants Prayer of of the manor of Berkhamstead shortly after an action for trespass had been brought by the lord, and prayed that it might be declared that the freehold and copyhold tenants were entitled, as common appendant to their freehold and copyhold tenements, to a right of common of pasture upon Berkhamstead Common for all sorts of cattle, levant and couchant, as well commonable as others, and to a right of estovers, and haybote and woodbote, and to cut so much furze, gorse, fern, and underwood upon the said common as might be required for the purpose of fodder and litter for cattle levant and couchant upon the said tenements, and for fuel, and other pur- poses of agriculture and husbandry necessary for the beneficial and profitable enjoyment and use of the said tenements, and to a right to use the whole of the common for walking, driving, and riding on horseback, and for the enjoyment of air and exercise, and for amusement and recreation, and for an injunction to restrain the plaintiff from interfering with such rights ; and the Master of the Rolls made a decree in the terms of the first part of the prayer, omitting the estovers and right to recreation, the evidence as to these being of modern date (1). Sect. 7. — Way, Eight of. A parish may 1. A parish may possess, as private property, an exclusive right of elusive right of way, but it must be by express grant from the owner of the land, way— but no ^nd no such right can be presumed to have arisen from dedication, prsBumption or o i. ' (1) Smith V. Earl Brownlow, L. E. (N. S.) 739 ; et v. Hoare v. Wilson, 18 9 Eq. 241 ; 18 W. E. 271 ; 21 L. T. W. E. 272, n. WAY, EIGHT OF. 49 inasmuch as there can be no such thing as a dedication to a part Pakt I. Chapter I. of the public, and no dedication to the public of a right of way seot. 7. will be presumed to have been made by the reversioner in fee of dedication to a land during the existence of a term of years under a lease (1). parish. 2. Where, under several local and public Acts, the vestry of a parish (Bermondsey) were constituted custodians of the public ways, and were empowered to take such proceedings as they should think expedient against any person stopping or impeding any public way, and had the soil of such ways vested in them, and they instituted a suit to restrain the defendant from erecting or continuing any building over a ten-foot way, leading from Ber- mondsey Wall to the River Thames, so that the said way, or the right of user and enjoyment of the same by the public, as an open and uncovered way, might be hindered, obstructed, or interfered with in any manner, the Master of the Eolls, Lord EomiJly, hfeld, that they could not sustain a suit by bill filed by them as plaintiffs in the ordinary course, but must take proceedings by way of information in the name of the Attorney-General ; the bill was therefore dismissed on the ground of its being defective in its form, and also that it had, under the principles stated in pi. 1, su^ra, failed on its merits (2). 3. Where the owner of two adjoining closes, A. and B., who had, during the unity of possession, made and used, for his own conve- nience for agricultural purposes, a way across B. to A., executed a conveyance of close A. to a purchaser with these general ■ words, "together with all ways, easements, and appurtenances thereto appertaining, and with the same now or heretofore occupied or enjoyed;" and the purchaser, who had access to A. from other land of his own, claimed under the conveyance the right to use the roadway over B. ; on a bill praying a declaration of such right, and that the defendant might be restrained from interfering with such user, the Master of the Eolls held, that as there was no road- way over B. to A. before the unity of possession, the right to use it did not pass under the general words of the conveyance (3). 4. Where a messuage, abutting in the rear on a narrow lane in a (1) Bermondsey {Vestry) v. Brown, (-3) Thomson v. Waterlow, L. E. 6 14 W. E. 213. Eq. 36 ; 37 L. J. (Cb.) 495 ; 16 W. K. (2) lb. 686 ; 18 L. T. (N. S.) 545. E 50 FAIES-MABKETS. Part I. city, had a back-door, which, after being constantly used for access to Seot. 7. " or from either end of such lane, was shut up for forty years, during which time also (although the two periods were not exactly com- mensurate in date) gates were put up at either end of the lane to abate a nuisance, but only occasionally closed, being, in fact, the result of an arrangement amongst the occupiers of the houses ; and free access being always given, although a key was kept, and the back-door of the messuage was then reopened and continuously used for three and a half years, when the next but one adjoining house was purchased by the corporation, who proposed, and had plans prepared, to build upon the site of the house and lane an hotel and baths, so as entirely to obstruct the way from such back- door through the lane, on a bill filed, an injunction was granted to restrain such building (1). Sect. 8. Fairs — Markets. A corporation 1. Where land bad been directed by a local Act to be put (here) holding ^^^ kept in proper condition for purposes of recreation, Vice- \fcket"^* Chancellor Sir J. Stuart restrained a corporation from holding ground. thereon a fair at which cattle were sold. By a local Act passed for improving the marsh and other common lands, and extending rights of common and recreation within a town, reciting that a portion of the marsh lands, consisting of four acres, was better adapted for the purposes of recreation than the other portions of the marsh ; it was enacted that rights of common and recreation should not be extinguished, and that the four acres should for ever thereafter be subject to such rights of common and of recreation, and other public rights, " as had theretofore been exercised and enjoyed thereon ; " and it was also provided, that " except as was therein otherwise provided " all the waste lands which were then vested in the corporation should remain subject to the existing rights of common and recreation, and such powers were given to the corporation to fence, drain, and manage the lands as they should think proper for the public advantage of the inhabitants ; and the corporation was also empowered to remove a fair to such parts of (1) CooJc V. Bath {Mayor, &c.), L. E. 6 Eq. 177 ; 18 L. T. (N. S.) 123. PAIES-MAEKETS. 51 the waste lands as they should think fit. In the exercise of their Part I. discretion, the corporation removed the fair to the four acres which seot. 8. were called " The Cricket Ground," and had theretofore been used for the purpose of playing cricket. But the Court held, that the corporation by so doing had contravened the powers of the Act ; and granted a perpetual injunction to restrain them from holding the fair on the cricket ground, with costs (1). 2. In Weale v. West Middlesex Water Company (2), Lord Chancellor Eldon says, that fairs and markets stand upon a very ancient principle, that persons cannot interpose themselves in the exercise of that franchise, against the right conveyed by grant, but that no grant can be made, by virtue of that authority, in- jurious to the common interests of the public; therefore, reasonable tolls only can be demanded ; and that we know that ancient usage has generally determined what they shall be. But if the claim be to take reasonable rates, then, he apprehended, if a person was going to that fair or to that market, and was refused the accom- modation required by law to be given him, the question was, not whether he might bring an action for damages for being prevented that enjoyment, but whether a bill in Equity could be filed for an injunction to permit any person to come there that pleased, and that he certainly never heard of such a bill. In an anonymous case (3), Lord Hardwicke refused an injunction to stay the use of a market, saying that it was a most extraordinary attempt, of which he had never known an instance before, that the plaintiff had several remedies at Law, whereby he had come originally into this Court for an injunction ; that if in any case this Court ought to interpose, it would be after the title had been established at Lavi^, which had not been done here, 3. It is essential to the complaint of an old market, against a An old market new one set up near it, that the old one was competent to the ^tent.** '^°'^' accommodation of the public, because otherwise they could have no right to complain (4). (1) Att.-Oen. V. Southampton (Mayor, (3) 2 Ves. Sen, 414.. <£c.) 1 Giff. 363. (4) Ex parte O'Beilhj, 1 Ves. Jim. (2) 1 Jac. & W. 373. 114. E ^ ( 52 ) Paht I. Sect. 9. Fisheries. Chapter I. Iniunction ■'- Where by letters patent of Charles II. the fishery of the river granted on a of Galwav, from Lough Carib to the sea, was granted to B., under title under the ,•" ° .,,.,/-, Crown, de- whom the petitioner A. claimed ; and the title of the Crown and its King John, to grantees to the fishery was deduced from the reign of John, and restrain fish- ^^^^ qJ ownership, and convictions of persons who had trespassed ing m a river, r' r r on the fishery were given in evidence, and the title of A., the petitioner, had been established by the verdict of a jury in a prohibition suit at Law, to which some of the respondents were parties, and the respondents admitted the right to a fishery in a part of the river, but contended that in other parts they and the public, from time immemorial, had exercised a right of angling; and they proved that for many years persons had been in the habit of angling in all parts of the river ; the Court of Chancery in Ireland granted a perpetual injunction to restrain the respon- dents from fishing, without directing an issue or action (1). Local board 2. A local board of health having commenced the construction structing a of a sewer under certain fields, on the banks of the river Avon, outlet into a belonging to the plaintiffs, who were also entitled to a several river where a fishery, and to Watering places for cattle in the river, but were free fishery. not owners of the water, or of the bed of the river — the outlet to such sewer being intended to open into the river within the limits of the free fishery — were restrained by injunction from pro- secuting the works (2). 3. Where A. owned lands on the Delaware river, and held and enjoyed a fishery appurtenant thereto, and after his death his estate was divided, by commissioners, among his heirs ; and they separated the lands lying contiguous to the river from the fishery by lines and fixed monuments, and set off the fishery as a separate share, the line of separation being the usual high-water mark; an injunction which had been granted, restraining the owner from building a wall on such Hne, was dissolved (3). (1) Ashworth v. Browne, 10 Ir. Ch. and Eq. 503 (Amr.) Rep. 421. (3) Sowell v. Sobi, 3 Halst. Ch. 17 (2) Oldaker v. Hunt, 19 Beav. 485 ; (Amr.) 6 De G. M. & G. 376 ; 31 Eng. Law ( 53 ) Sect. 10. Copyholds. p^ut i. Chapter I. 1, The Court has concurrent jurisdiction with Courts of Law to .,, 1 . „ , 111 Chancery has reheve a copyholder against an illegal seizure ot the copyhold ooncmrent property by the lord, and is not limited to compelling the lord ^o^^^^^^^^^^^^^ do right as between two persons claiming; to be copyholders : and law to relieve ° '^ . . against illegal the circumstance of the copyhold lands being subject to a demise seizure. by the copyholder is such a circumstance as renders it the more proper course to seek relief in Equity, on the ground that unless the plaintiffs were willing to put an end to the lease of their tenant by taking proceedings against him to enforce a forfeiture, so as to proceed at once against the lord, either by ejectment or trespass, for the wrong which, as the plaintiffs alleged, they had sustained at his hands, they must wait until the determination of the lease before their rights could be ascertained ; and semhie, the summoning a copyholder who was known to be in India to attend a court baron in a fortnight is an inequitable act whereon to found a forfeiture by the copyholder (1). And where, in 1856, copy- hold lands of a feme sole (subject to a lease previously granted by her for a term, of which twelve years were unexpired) were, on her marriage, conveyed to trustees by way of covenant to surrender upon trust for sale, and to hold the sale moneys upon the trusts of a marriage settlement, with power to the trustees to contract for the enfranchisement of the lands, and to raise the money to be paid for enfranchisement by sale or mortgage ; and the husband and wife immediately proceeded to India, where they had ever since continued, and in consequence of political disturbances there, no communication had been made with them during the course of the transactions complained of; and the lord gave notice to the solicitors in England of the copyholder, requiring the lands to be enfranchised for a gross sum, and refusing to receive a rent-charge in lieu of such gross sura, as provided by the Act ; , and, without any further communication, the lord served on the solicitor a summons for the copyholder to attend a court baron in a fortnight ; (1) Andrews v. Hiilse, 4 K. & J. Fitzherbert,Nat. Brev. p.l2; Com. Dig., 392 ; 4 Jiir. (N. S.) 581 ; et v. Luton's Cop. p. 2 ; Fitz. Abr., tit. Subpoena, 21, Case, Caiy, 8. ; Viner's Abr., Cop. E. d. cited by the Vice-Chancellor in his pi. 2 (vol. 6, p. 152) ; Coke, Cop. s. 9 ; judgment. 54 COPYHOLDS. Part I. and it having therefore been impossible to communicate with the Seot. 10.' copyholder in the interim, the lord directed his bailiff to seize the lands, alleging the felling of timber, digging of gravel, non-payment of quit rent, and non-attendance at courts baron, as his reasons for the ouster, and the bailiff seized accordingly, and the lessee attorned tenant to the lord, and the copyholder thereupon filed a bill to have the seizure set aside, and to be relieved against all the proceedings, alleging that the felling of timber, and digging gravel, if any such acts had taken place, were wholly unknown to him, and without his sanction ; and alleging, in fact, that the lessee in possession was colluding with the lord ; Vice-Cliancellor Sir W. P. Wood, held, on demurrer, that he was entitled to reKef, but reserved the costs until the hearing of the cause, on the ground that if the result of the proceedings should be, to shew that relief is to be sought in a Court of Law, it would be very unreasonable that the defendants should be put to additional costs by proceedings in this Court (1). And Equity has jurisdiction over a judgment in a copyhold court (2). The lord can- 2. The lord of the manor has not by law, independently of not, indepen- , i , 'ii-xix'! dently of cus- custom, any such property or interest in the timber growing on torn, out down ^jjg copvhold premises of a tenant as entitles him to enter without timber on the '^•' '^ tenant's pre- the Consent of the tenant, and cut down to his own use and benefit the timber growing thereon, leaving a sufficient quantity for reasonable botes and estovers (3). In Nash v. Derby (4), where A., having two copyholds, held of the manor of B. cut timber on one and employed it in repairing the other ; and, after a verdict on an ejectment by the lord for the forfeiture, A. filed a bill in Equity to be relieved against the forfeiture, he was relieved, but ordered to pay the costs at Law and in Equity, and also to pay the fees on re-admission, but no fine. 3. The lord of a manor is entitled to an injunction and an account in respect of waste by a copyholder (5). 4. Upon a bill to prevent waste in digging and carrying the soil in manors that lie in the levels in Cambridgesliire, Lord Hardwicke (1) Andrews v. Hulse, 4 K. & J. (3) Whifechurch v. HolwoHhy, 19 092 ; 4 Juv. (N. S.) 581. Ves. 213 ; S. 0. 4 M. & S. 340. (2) 1 Roll. Abr. 60, 373. (4) 2 Vern. 537. (5) Richards v. Noble, 3 Mer. 673. nuses. COPYHOLDS. 55 ruled that a copyholder tenant in fenny and marshy lands may be Part I. entitled to dig up the lord's soil for turf, but that an occupant who ggcr. lo. is no more than a tenant at will can never have a right to take away the soil of the lord, that is to say, a right to a common of turbary (1). 5. A custom in a manor that copyholders of inheritance may A custom that break the surface and dig and get clay, without stint, out of their may get Illy copyhold tenements, for the purpose of making bricks to be sold ^'*^°j* ^*™*' off the manor, is good in law (2). In a suit by a lord to restrain a copyholder from digging vitreous or silver sand used for the purpose of making glass on bis own tenement, evidence of a custom to dig vitreous sand for twenty-seven years (about the time it appeared to have been discovered), and of a custom to dig sand generally for a long period, was advanced ; and Lord Chancellor Westbury, revers- ing a decision of Vice-Chancellor Sir W. P. Wood, who had granted a perpetual injunction to restrain the defendants from digging, raising, or carrying away, or from causing, or ordering, or consenting to, the digging, or raising, or carrying away by any other persons or person, of any sand from or out of the two closes of land in the bill mentioned, and dismissing the bill with costs, held, that the evidence of the custom was sufficient, and also ruled that the 2 & 3 Will. 4, c. 71, s. 1, applies only to cases where a person claims by custom, prescription, or a profit or benefit a prendre from the land of another, and has no application to a right claimed by a copyholder on his copyhold tenement according to the custom of the manor, which is not, for this purpose, the land of the lord of the manor, and that that statute does not invalidate the natural effect of acts not thirty years old as evidence in support of the existence of a custom. And further, that a custom may be good for copyholders to carry away the entire soil of their copyhold tenements (3). (1) Bean, &c., of Ely v. Warren, 2 3 (2) Salisbury (Marquis) v. Olad- Atk. 189. stone, 9 H. L. C. 692. (3) Eanmerv. Chance,llJur. (N. S.) 397 ; 34 L. J. (Ch.) 413. ( 56 ) Part I. Sect. 11. Leases. Chapter I. Lessors of ice- ^- Where a canal company, in consideration of the lessee's houses (heie) expenditure on certain icehouses on the banks of the canal, sranted no nght to de- '^ _ _ _ rotate from a lease thereof, with license to take ice from a part of the canal, sequent Lord Chancellor Campbell, affirming the decision of Vice-Chan- takeice*° cellor Wood, held, that the license was not exclusive; but that it was a grant of sufScient ice to enable the lessee to fill the ice- houses ; and that, so long as the lessee was able and willing to take this quantity of ice, the lessors could not derogate from their grant by subsequent licenses which would interfere with it (1). No sale or un- 2. Where A. demised a farm to B. for twenty-one years, and the (here) by lease Contained covenants that B., his executors, administrators, or bantapt ° assigns, would not at any time during the period assign or under- witi.out con- let : that in case B., his executors, administrators, or assigns, should, sent of lessor. . ' ' ° by his or their own act, default, or procurement, or by act of law, or by virtue of any Act of Parliament, lose or be deprived of the pos- session of the premises, or of the term granted, or any part thereof, without the consent in writing of A., he might re-enter ; and B., in October, 1859, was adjudicated bankrupt, and his assignees took possession, and in July, 1860, negotiations in reference to a person proposed as tenant having failed, the assignees paid the half-year's rent due on the 25th of March previously, and they then advertised the lease for sale by auction, Vice-Chancellor Sir J. Stuart held, that on the acceptance of the rent by A. the assignees became entitled to the lease by contract with him, and not by operation of law, and that consequently they were bound by all the covenants, and^ could not sell or underlet without the con- sent of A. (2) In September an interim injunction had been granted, restraining the assignees from assigning, underletting, or disposing of the farm, without the consent of A. In October the assignees allowed S. to enter into possession without such consent, alleging that he was their bailiff. The stock and implements on the farm were the property of S., and he received no remuneration or wages from the assignees, the agreement being, that he should (1) Newhj V. Harrison, 1 J. & H. (2) Dyke v. Taylor, 6 Jur. (N. S.) 393 ; aflirmed, 4 L. T. (X. S.) 424. 1329 ; 3 L. T. (N. S.) 500. LEASES. 57 be tenant of the farm if the assignees succeeded. On motion Part I. to commit for breach of the injunction, the Vice-Chancellor held, Sect. il. that the arrangement with S. was a mere device to evade the order of the Court ; that the assignees had parted with possession of , the property, and that they must pay all the costs (1). 3. Where a dwelling-house, with grounds and ornamental water, Lessor (here) had been demised together with the control of a plantation (which destroy a plan^ was on the opposite side of the ornamental water, and belonged to ^ot'demised. the lessor, but was not demised to the lessee) for the purpose of preventing trespassers thereon, but so as not to interfere with the persons employed by the lessor, his heirs or assigns ; and the lease referred to a plan on which the plantation was represented ; the Court held, that, on the construction of the lease, as explained by the plan, the lessor was not at liberty, during the term, to destroy the plantation, and an injunction was granted to restrain him from so doing (2). 4. It is no defence for the assignee of an original lease (who had Liability to taken a renewed lease) to say that he should be liable to forfeiture defence (hercO. of the renewed lease if he were compelled by the decree to give specific performance of an agreement, upon taking an assignment of the original lease, to reserve a certain box at the Opera House ; and the Lords Justices held, affirming a decision of Vice-Chancellor Stuart, that the defendant refusing compensation in money or otherwise, the plaintiff was entitled to relief. If the circumstances which give rise to the danger of forfeiture arise from the defen- dant's own acts, it will decree specific performance and leave the defendant open to the consequences of his own acts (3). 5. Where A. recovered judgment against B., and had a lease sold to him by the sheriff, and C, the ground landlord, entered and, having judgment in ejectment for non-payment of the ground rent, offered A., upon payment of arrears of rent and costs at law, to make him a new lease for the remainder of the term, and A. refusing this offer, C. let it to another, and A. brought his bill to be relieved against the re-entry and forfeiture at law, having at last, and before filing the bill, tendered the arrears and costs at law, (1) Dyhe v. Taylor, 6 Jur. (N. S.) (2) Nicholson v. Eose, 4 De G. & J. 1329 ; 3 L. T. (N. S.) 500. 10. (3) Hdling v. Lumley, 4 Jur. (N. S.) 868 ; 28 L. J. (Ch.) 249. 58 LEASES. Pabt I. his bill was dismissed with costs on the ground^ {inter alia) of his Skct. 11. said refusal of the above offer as to payment of arrears and ^ costs (1). Solvr;ncy or 6. Upon a contract for a lease the solvency or inw^ilvency of the t°?^int "upon a tenant is an objection of weight, depending npon the circumstances, SeaBe*"' ^°^ ^^'^ viiyon that and other circumstances an injunction, in Buekland V. Hall (2), against an ejectment by the landlord was dissolved. Lessee re- 7. A lessee applying to redeem a lease which has become for- forfeited for^ feited at law by non-payment of rent, is not required by the statute of 3^"""°' 4 Geo. 2, c. 28, s. 3, before the hearing, to pay into Court the arrears of rent or the costs at law, if no injunction is granted until the hearing, and the lessor is in actual possession undisturbed by the interposition of the Court, and the first application which the tenant makes to the Court for any relief is made at the hearing of the cause ; but the provision in the 3rd section for payment into Court of the arrears of rent and costs applies only to the case where the tenant comes for an injunction by which his possession is to be continued, and the landlord restrained from proceeding with his ejectment. In all these cases if the injunction is granted, the Court is bound by the statute of George (3j to impose such terms for the security of the landlord. Before the statute was passed the tenant could at an indefinite time after he was ejected have filed his bill, and been relieved against the effects of the non-payment of rent. The statute, by the 2nd section, limited the time within which the lessee might obtain relief, and enacted that if the lessee suffered judgment to be had and execution to be executed without paying the rent and costs, and without filing any bill in Equity within six months after such execution, he should be absolutely barred from all relief in Law or Equity, other than by writ of error ; and by the 3rd section it is enacted tliat no lessee shall have or continue any injunction against proceedings in eject- ment unless he shall pay into Court, within forty days after a full and perfect answer of the lessors of the plaintiff in f-jectment, the arrears the lessors of the plaintiff in the ejectment shall in their answers swear to be due, and just allowanr-es and costs ; wlierenpon, under the 4th section, all proceedings in tlie action sliall cease, and the lessee shall, if relieved under the statut'-, hold the demised (1) Lorriiiijlon i. Jac/Mjn, 1 Vtrn. H'J. (Z) b Vee. 'Jli. (3) .inlc LEASES. 59 lauds according to the lease thereof made, without any new lease. Pabt I. These clauses have been substantially re-enacted, with a few sect. ii. immaterial variations, by the Common Law Procedure Act (15 & 16 Vict. c. 16, 88. 210—212, (1). 8. Where in a lease containing a clause of distress, and if no suiEcient distress the landlord might enter without previous demand, an ejectment for non-payment of rent was brought and judgment by default obtained, and the landlord sued out a habere, and went into possession in May, 1824, and, after bringing eject- ment unsuccessfully to recover possession, the tenant filed a bill for redemption and relief against the forfeiture ; the Court, in Ireland, held, that be was entitled, the landlord accounting for the profits while in possession, and the tenant paying the rent, interest, and costs (2). 9. Where a lease of a farm contained a covenant on the part of the lessee against alienation or parting with possession without the lessor's assent, and a condition for re-entry in that event, whether occurring by act of the lessee or by operation of law, and the lessee became bankrupt ; on a bill filed by the lessor, alleging that the assignees had elected to take the lease, and were about to assign and to part with the possession without the lessor's assent ; that the farm was within a short distance of the lessor's residence, and that it would cause personal annoyance to the lessor if the farm was assigned to a person not approved by him ; the Court held, that a sufficient cause of mischief was not made out to support an interlocutory injunction (3). 10. Where a lease contains a proviso for re-entry for non- where cove- performance of covenants, and a covenant is broken for want of the f^^. ^^nt of previous consent of the lessors to alterations, the receipt of rent is l^^^s con- ^ _ '^ sent, receipt a waiver of the forfeiture (4). of rent waives 11. Where T.had agreed to rent a mansion house and 100 acres of land, with the exclusive right of sporting over 800 acres more, paying £300 a year for the house and 100 acres, and £100 for the shooting ; and a draft agreement for a lease was signed, and with- out any more formal document (although an agreement was pre- (1) Bowser v. Colby, 1 Hare, 109. (3) Dyke v. Taylor, 3 De G. F. & J. (2) Canny v. Hodgens, Hay. & J. 769. 467. (4) Miks V. Tobin, 17 L. T. (N. S.) 432 ; 16 W. B. 465. 60 LEASES. Part [ Chapter I. Sect. 11. Equity aids tenant in pre- venting land- lord breaking a Ci ivenant which works forfeiture of tenant's estate. pared, but never executed) T, entered, and continued to the end of the term, some other stipulations in this agreement being carried out ; and during the last year of the tenancy a tenant of the 800 acres commenced cutting away some underwood, and T. remon- strated, but without effect ; a bill filed by T., within a year of the termination of the tenancy, for specific performance of the agree- ment for the lease, to restrain the cutting of the cover, and for damages, was dismissed with costs (1). 12. Equity will aid a tenant in preventing his landlord from breaking a covenant, which will work a forfeiture of his (the tenant's) estate, although not made with the tenant, and even when a suit at law cannot be maintained on such covenant (2), and will also restrict a lessee to the specific performance of his covenants (3). 13. The Court will require the strongest expressions in a mining lease to induce it to imply a covenant to sink a shaft upon the demised land (4). A covenant to continue working will not be implied from a covenant to work in a proper manner (5). In assessing damages for trespass done in working coal, the Court will inquire whether the trespass was committed while there was a hand fide question of title pending, or under a mere assertion of right; and in the former case the trespasser will be allowed the expenses of winning and getting, as well as of raising and hauling the coal (6). Where the lessee of a mine has constructed a channel through which water from another mine of the lessee naturally flows, the lessor of the mine, on the determination of the lease, has no right to an injunction to restrain the lessee from permitting his water to flow through the channel in the mine (7). (1) Turner Y.Clowes, 20 L. T. (JST.S.) Lewis v. FothergiU, L. E. 5 Ch. 103. 214. (5) lb. (2) Rogers v. DanfoHh, 1 Stockt. (6) lb. et v. Martin v. Porter, 5 M. 289 (Amr.) ' & W. 351. (3) 2 Story Eq. 25, 710 ; Nutbroiim (7) Jegoii v. Vivian, Lewis v. Fother- V. Thornton, 10 Ves. 159. gill, ante. (4) Jegon v. Vivian, 19 W. E. 365 ; ( 61 ) Sect. 12. Executions (so far as relate to Real Property, including Part i. Leaseholds}— Elegit. ""^™" ^- 1. Where, in Ireland, an elegit creditor in possession made a lease of the extended lands for twenty-one years, provided his estate should last so long, and before the debt was paid off or the years had expired, the lands were sold under a decree in a creditor's suit, and so conveyed to a purchaser, and the conveyance was executed by the administrator of the elegit creditor ; the Court held, that though the estate by elegit was merged by conveyance as between the creditor and the purchaser, it had continuance as between the purchaser and lessee to support the lease, which still existed at law ; but that the lease in equity was at an end, and, senible, the Court would enjoin the lessee from enforcing his legal title under it (1). 2. Where a decree has been obtained by a creditor on behalf of himself and other creditors, a prior creditor who has obtained judgment at law in ejectment grounded on an elegit, shall not be allowed to get into possession (2). 3. In Brown v. Perrott (3), where, after verdict, and before judg- ment had been entered up, the defendant sold his leaseholds by auction ; upon a bill praying (inter alia) that the plaintiff might be let in to levy execution on the defendant's share of the purchase money ; or otherwise that the proceeds might be applied in pay- ment of the plaintiff's demand and for an account and an injunc- tion ; the Master of the Eolls, Lord Langdale, held, on demurrer, that under 1 & 2 Vict. c. 110, the plaintiff could not levy execu- tion on the purchase-money. 4. By the 23 & 24 Vict. c. 38, s. 1, it is enacted that a judg- ment shall not be a charge upon land so as to affect purchasers, unless the judgment creditor should issue execution and register the writ of execution ; and by the 27 & 28 Vict. c. 112, s. 1, it is enacted that no judgment entered up thereafter shall affect any land until such land shall have been actually delivered in execu- tion by virtue of a writ of elegit, and the writ registered, but that the judgment creditor to whom land has been actually delivered in (1) Williams v. Morris, 13 Ir. Bq. (2) Sumner v. Kelly, 2 Sch. & Lef. E. 17. 398. (3) 4 Beav. 585. 62 EXECUTIONS -ELEGIT. Part I. execution shall be entitled forthwith to have the benefit of his Sect. 12." judgment (1). This Act does not, however, deprive a judgment creditor of his charge who is unable to have the land delivered to to him ; and where mortgagees were about to sell under a power, the Court, at the suit of a judgment creditor of the mortgagor, who had sued out an elegit, but could not obtain possession of the land under the writ, the legal estate and possession being in the hands of the mortgagees, restrained the mortgagees from paying the surplus to the mortgagor (2). 5. As between debenture-holders, of a railway company and judgment creditors, a debenture-holder cannot obtain an injunction to restrain a judgment creditor from suing out an elegit (3). A judgment creditor under an elegit has a right to have such posses- sion of the land as may avail him, subject to the right and interest of the receiver and collector of rates, tolls, and dues obtained by a debenture-holder ; and to the provisions of the Act of Parliament as to the user of the undertaking for the public (4). He may, under his elegit, take the rolling stock and chattels of the com- pany (5), but he will be restrained from taking up the rails or the fixtures (6). 6. With regard to the terms upon which a judgment will be enjoined, where a judgment debtor comes into Equity for protec- tion, on the ground that he has satisfied the judgment, the door is fully open for the Court to modify or grant his prayer upon such conditions as justice demands (7) ; and injunctions to judgments at Law will, in general, be at the cost of the complainants (S). (1) See Se Me of Wight Ferry Com- and Dover Bailway Company, L. E. party, 34 L. J. (Ch.) 194; Re Hull ai,d 2 Ch. 201. Hornsea Bailway Company, 35 L. J. (6) Legg v. Mathieson, 2 Giff. 71. (Ch.) 838. (7) Meclianics, etc. t. Lynn, 1 Pet. (2) Thornton v. Finch, 4 Giff. 515. 376 (Amr.) (3) Russell V. East Anglian Railway (8) Mosby y. Eashins, 14 Avk. 360. Company, 3 Mao. & G. 104. (Amr.) (For the different local rules (4) Potts V. Warwick and Birming- whicb prevail in different states (U.S.) ham Canal Company, Kaj', 142. with reference to the enjoining of judg- (5) See Gardner v. London, Chatham ments, see Billiard, Inj, 1S4, n., 2nd Ed.) ( 63 ) Sect. 13. Forfeitures — Election. Pjiht I. Ohaptee I. 1. Where a party, having obtained a judgment against a tenant —, ] for life in remainder, whose estate was liable to forfeiture by his fused to re- own non-user of the name and arms of the testator, filed a bill to forfeiting liis realize the charge, the Court at the hearing refused to grant an ^^^ estate, injunction to restrain the tenant for life from forfeiting his life estate (1). 2. Where the estate of a tenant for life was liable to forfeiture on his mortgaging it, and he mortgaged it to the defendant, un- known to the parties taking under the forfeiture, the Master of the Eolls held, that the defendant was liable to account to them for the rents, at all events from the filing of the bill, and beyond that, from the time he had notice of the trusts creating the for- feiture (2). 3. Where a builder had agreed to take some land on a building lease, and to erect houses within a specified period, the landowner making him certain advances, and there was a clause of forfeiture in default of their being completed within the time, the Court refused relief to the builder against a forfeiture, it appearing that the landowner had fully performed his part of the contract (3). 4. In Green v. Green (4) it is quseried whether there is a distinc- tion, upon election, between a deed and a will, that is to say, whether, in the latter case, the principle is forfeiture or compen- sation only ; but upon election against a marriage settlement, as operating as a contract, an injunction was granted on the principle of forfeiture (5). Sect. 14. Covenants. 1. Where a covenant is indefinite or uncertain in its terms, the Where cove- Court will not interfere by way of injunction (6). finHe no"^5" (1) Semple v. Holland, 33 Beav. 94. tion, W. & T. Ldg. Gas. in Eq. vol. i., p. """"^ °"' (2) Hennessey Y. Bray, 33 Beav. 96. 312, 3rd Ed. ; and in Eaton v. Hilton, (3) Cro/ifv. (?oZ&nM't?,24Beav.312. 15W. R.193. Vice-Chancellor Malins (4) 19 Ves. 666. held upon a will there was a forfeiture. (5) See further on this point of com- (6) Low v. hi.nes, 10 Jur. (N. S.) pensation or forfeiture in cases of elec- 1037. 64 COVENANTS. Part I. 2. Where the covenants in a lease are clear and distinct, and Sect. 14. *^® breach is also clear and distinct, and irreparable injury is ;rr likely to arise, it is the duty of the Court to interfere by inter- Wnere cove- j i j ^ j ^ pants clear, locutory injunction. If these conditions are not fulfilled according granted— to the wholc course of the Court, it becomes a question of com- uponTnterlo- P^'i'^tive injury — on which side would greater injury be caused ? — cutoiy applioa- and the Court will weigh the balance of inconvenience occasioned tion it ia a . ... ... question of by granting or refusing an interlocutory injunction ; and therefore injury. ^ ^^ WUMnson V. Rogers (1), where a lease of a house contained a covenant by the lessee to use it as a private dwelling-house only, with a proviso that if any of the adjoining premises (belonging to the lessor) were converted into a shop, the lessee should be at liberty to convert his premises to a similar use, and one of the adjoining houses had for two years been used, with the consent of the lessor, for selling photographs, and frames and photographs had been exposed for sale, but before the bill was filed ; the busi- ness had been put an end to by notice from the lessor, the Lords Justices, reversing a decision of the Master of the Rolls, refused, on interlocutory motion, to restrain the lessee from using his premises as an office for taking orders for coals. 3. Where an estate is vested in trustees who sell plots for building, subject to restrictive covenants of which the trustees, as covenantees, are trustees for all persons claiming under them, each purchaser has an equity against the other purchaser to compel the observance of the covenants, but such equity may be lost by acquiescence ; and in a suit to enforce such an equity, the trustees are necessary parties, and if the plaintifis desire to proceed for the purpose of recovering damages under Sir Hugh Cairns' Act (21 & 22 Vict. c. 27), the remaining purchasers ought to be represented on the record. And a plaintiff, though barred by acquiescence or otherwise from his remedy by injunction, may obtain damages under the said Act, and that, even though no action would be maintainable at law by the plaintiff; therefore, where each allottee or purchaser from a building society had entered into restrictive covenants with the trustees to whom the estate was conveyed, and who were the conveying parties to them, and it was provided that the covenantees should be trustees of the covenants for the benefit (1) 12 W. R. 284. COVENANTS. 65 of all persons claiming under conveyances by the trustees, and Part i. Chapter I every allottee or purchaser had notice of the scheme of the society, sect. 14. ' and of the regulations, provisions, and restrictions under which alone he could build upon his lot, and with this notice the plaintiff and the defendant became allottees or purchasers, and the defen- dant soon after built a large hotel, which was completed before the bill was iiled, but later he began erecting stables, with a large midden, or receptacle for manure, in front of the plaintiff's lots ; and the bill prayed for the plaintiff the benefit of the covenants entered into by the defendant with the trustees, or their allottees or purchasers, and for an injunction against building in violation of those covenants and the plan, and that the building so erected might be pulled down, and damages might be awarded to the plaintiff; and the Vice-Chancellor of the County Palatine of Lan- caster, at the hearing, decreed that the only proper buildings were such as had been approved by the covenantees, and directed the demolition of buildings raised after the filing of the bill, and restrained the defendant from using the stables otherwise than as general outbuildings, but the defendant appealed ; and it was alleged that the trustees had sanctioned deviations from the general plan, and that the plaintiff had himself not strictly ob- served it : the Lords Justices held, that even if the defendant was not bound by the general plan, the plaintiff had an equity against him by force of the covenants he entered into with the trustees in the conveyance to him ; that a deviation sanctioned by the trustees in breach of their duty could not displace the plaintiff's equity under that covenant ; but that the plaintiff must be taken to have acquiesced, inasmuch as the hotel itself was built before the bill was filed, and he must have known that the stables were an indis- pensable adjunct to it, and therefore that the injunction must be dissolved, and the order directing demolition discharged (1). 4. Where A. had sold a piece of land to B., and covenanted for quiet enjoyment, and afterwards A., by placing a quantity of stone in a watercourse, had raised the level by three inches of a brook running past B.'s grounds through his, A.'s, property, the Master of the Rolls held, that, under these circumstances only, the plaintiff, (1) Eastwood V. Levers, 3.3 L. J. (Ch.) 355 ; 12 W. E. 195 ; 9 L. T. (N. S.) 615. 66 COVlfNANTS. Part I. B., had not made out a case for tlie interference of a Court of Equity, Sect. 14. ' and said that he could not find that the plaintiff had sustained any damage at all ; that the utmost any one said was that the water was dammed up and rises some three inches up the wall of the ditch to the damage of the said wall, but without saying that any damage had been sustained ; and that he did npt find that it had made it either moist or damp, and the plaintiff had the full enjoy- ment of the premises ; and if neither they nor he sustained any injury, and the plaintiff did not shew any damage, he had no right to the interposition of this Court ; and here there was no covenant not to do the act complained of, and the damage complained of was of a description which was not susceptible of appreciation ; and dismissed the bill with costs, with liberty to the plaintiff to bring any action he might be advised in respect of the subject comprised within the bill (1). 5. A covenant to use a house as a dwelling-house only, is a covenant running with the land, and is binding on the assignee of the lessee, although his " assigns " are not, nor were they here, named in the covenant, and in this case an injunction was granted to restrain a breach by an assignee and his sub-tenant of the lease (2). Purchaser of 6. Where an owner in fee of two plots of land demised the first reversion with notice of re- lor an hotel, and covenanted that he would not let any house or nant bound'^" ^^^^ within a certain distance of it to be used as an hotel, and in Equity demised the second plot, which was within the distance, to another thereby. person, and the defendant purchased the reversion of the second plot, and afterwards bought up the lease of it, but with notice of the restrictive covenant relating to the first lot; the Master of the Eolls held, that in Equity he was bound by the covenant ; and also that on the construction of the covenant on the part of the lessor, not to "let" any house or any land for the erection of any house to be used as an hotel, the lessor, and those who claimed under him, could not allow any of his land to be used for that purpose (15). 7. Where A. and B., owners of an estate, had laid it out for (1) Tug ram v. Morecraft, 33 Bcav. 119 ; see this case upon appeal, pi. 2. 49. (3) Jt L. -150. (G) lb. COVENANTS. 79 refused as to presses, eo nomine, if not fixed to the freehold, in Pakt I. CilAPTEB I. which case it would be waste (1). Sect. i4. 29. Where a lessee of a mill and steam-engine had covenanted to repair, reasonable wear and tear excepted, and during the lease he had added both to the height and extent of the mill, and had removed all the works of the engine, except the fly-wheel, shaft, and boiler, and had attached to them a new engine of greater power, the Court granted an injunction to restrain the assignees of the lessee, who had become bankrupt, from removing the parts of the new building and the new parts of the engine, subject to an action to be brought by the lessors to try the rights (2). 30. Where a receiver had been appointed over premises held Sub-lessee re- under a lease containing a covenant declaring the lease void in ^cta to endan^ certain events therein specified, and a tenant held under a sub-lease fg^gg^J*^^ °^ ''"^ containing a similar covenant ; th^ Court, upon motion by the receiver, restrained the tenant under the sub-lease from doing an act whereby the title of his lessor might be evicted (3). 31. In London (Mayor of) v. Hedger (4) it was held on demurrer that a covenant to repair, and at the end of the term to surrender the buildings in good condition, does not preclude an injunction against pulling them down and carrying away materials just before the end of the term. 32. In Fleming v. Snook (5) the Court granted an injunction to Injunction to restrain the breach of a farming covenant ; and a covenant in the breach of farming lease not to sow with more than two grain crops during „aiit3°° '^°^'^" four years, was held to apply to any four years of the term how- ever taken, and not to each successive four years from the com- mencement. And in Drury v. Mollins (6) the Court granted an injunction against ploughing up pasture upon a covenant to manage pasture in a husbandlike manner, the Lord Chancellor say- ing that he thought that equivalent to an express covenant not to convert pasture to arable. So, in Lord de Wilton v. Saxon (7), the Court granted an injunction to restrain a tenant to the plaintiff (1) Kimpton v. Eve, 2 V. & B. 349. (5) 5 Beav. 250. (2) Sunderland v. Newton, 3 Sim. (6) 6 Ves. 328. 450 ; see Kimpton v. Eve, 2 V. & B. 349. (7) 6 Ves. 106 ; v. Pulteney v. Shelton, (3) Mason v. Mason, Fl. & R. 429. 5 Ves. 147, 260, n. ; and Hovenden's (4) 18 Ves. 355. Sup. to Ves. 497. 80 COVENANTS. Part I. from ploughing up meadow for the purpose of building, on the Chaptpr T Sect. 14. ' ground that it was contrary to an express, covenant in his lease not to convert any meadow, otherwise the Lord Chancellor doubted whether the Court would grant an injunction on the ground of waste, if there were no covenant, without evidence that it was an ancient meadow. Tenant from 33. The Court will grant an injunction to restrain a tenant from res^rained'^' year to year (in this case) under notice to quit, as in the case of a cutting hedge- lessee for a longer term, from doing damage by cutting and damaging the hedge-rows, &c., and from removing the crops, manure, &c., contrary to the usual course of husbandry, and except according to the custom of the country (1). Cases where 34. Where in a lease for years of land, the lessee covenanted refuseV"'^ not to plough pasture land, and if he did, then to pay after the damages being j-g^^g ^f 20s. per annum for every acre ploughed ; the Court refused an injunction against the tenant's ploughing, on the ground that the paities themselves had agreed the damage, and had set a price for ploughing, and declared that if the defendant was plaintiff against paying 20s. per acre for ploughing, the Court would not relieve him (2). And so in Rolfe v. Paterson (3), where a lessee cove- nanted not to plough up, and if he did to pay £5 additional rent per acre, it was held to be stipulated damages, arid that Equity had no jurisdiction. And in Forbes v. Carney (4) the Court refused an injunction to restrain a tenant from breaking up land contrary to his covenant, where the parties had ascertained the damages. However the However, in French v. Macdbe (5) it is laid down that where a breachea*™^"^ Covenant is not to do a particular act, and a penalty or forfeiture is though a annexed to the doing of that act, this penalty does not authorize the party to do the act, and before the act is done, that the Court will restrain him by injunction, but that if the act is done, the penalty must be paid, and that the amount is unimportant. 35. Where land for building on was intended to be sold by lots, and on the sale of the two lots first sold an indenture was executed by the owner and the two purchasers whereby, after detdaring that (1) Onslow V. — , 16 Vcs. 173; v. (4) Wall. Lyn. 38. Oeust V. Lord Belfast, 3 Austr. 749, i.. (5) 2 D. & War. 269 ; 1 Con. & L. (2) Woodward v. Gyles,2 Vcrn. 119. 559 ; ct v. Barrett v. Bhgrare, 5 Ves. (3) 2 Bro. P. C. 436. 555. COVENANTS. 81 it should be an indispensable condition of the sale of any part of Pabt i. the land that the proprietors for the time being should observe seot. li. the covenants and restrictions of the indenture, and the parties ^^^j ^^ thereto covenanted, among: other things, that none of the pro- covenantor, . . " ° "^ with notice, is prietors for the time being should ever use as an hotel, or carry on bound by the the business of an innkeeper in, a house erected on any of the lots, and the purchasers of two other lots afterwards executed the deed, and then sold their lots, the one to A., the other to B., neither of whom executed the deed, but both had notice of it ; B. and his tenant were restrained by injunction from using the house built on B.'s lot as a family hotel, on the ground that the covenant was binding in Equity upon an assignee of a covenantor who purchased with notice of the deed (1) ; and so where a purchaser in fee cove- nanted that no building whatever should at any time thereafter be erected on a certain portion, which latter was afterwards, and after one mesne conveyance, vested in the defendant, who, before the conveyance to him, had notice of the covenant, the Court, at the instance of the plaintiff, who had afterwards divers mesne con- veyances of the other portions, restrained the defendant from continuing a building begun by him (2). 36. Where land is conveyed in fee by deed of feoffment, subject if subsequent to a perpetual ground-rent, and the feoffee covenants for himself, nantee alter his heirs and assigns, with the feoffor, the owner of adjoining lands, ^'^^^'^'Oter of his heirs, executors, administrators, and assigns, not to use the as the roatric- land in a particular manner, with a view to the more ample enjoy- applicable— ment by the feoffor of such adjoining lands, and the subsequent '^°™-'™°*^™' acts of the feoffor, or of those claiming under him, have so altered the character and condition of the adjoining lands that, with refer- ence to the land conveyed, the restriction in the covenant ceases to be applicable according to the intent and spirit of the contract, a Court of Equity will not interpose to enforce the covenant, but will leave the parties to Law. Whether upon such a covenant there could be any remedy at Law against the assignees of the covenantor, quiere (3). 37. A covenant, though in gross at Law, being one that does not Covenants in, (1) Whatman v. Gibnon, 9 Sim. 196 ; 10 Jur. 650. 7 L. J. (N. S.) Ch. 160 ; 2 .Fur. 273. (3) Duke of Bedford v. Trustees of (2) Maim v. Stephens, 15 Sim. 377 ; British Museum, 2 My. & K. 552. G 82 COVENANTS. Part I. run With the land so as to be bindme: at Law upon a purchaser ChAI'TEH I. „ , . , , f . , . . i, . Sect. 14. irom the covenantor, is nevertheless binding in liquity upon an though gross assignee with notice ; and where, in 1808, the plaintiff was the at Law, are owner in fee simple of a piece of ground forming a public square Equity, with in London, and also of several houses in the square, and in the same year he conveyed the piece of ground, by the description of " Leicester Square Garden, or pleasure ground, with the equestrian statue then standing in the centre thereof, and the iron railing and stonework round the same," to E. in fee simple, and E. cove- nanted for himself, his heirs, executors, administrators, and assigns, with the plaintiff, his heirs, executors, and administrators, to keep the piece of ground, and the iron railing round the same, in its then present form, and in proper repair, as a pleasure ground, in an open state, uncovered with any buildings, in neat and orna- mental order ; and that the plaintiff and his tenants, inhabitants of the square, might, on the payment of a reasonable rent for tlie same, have keys at their own expense, and the privilege of admis- sion therewith at any time into the pleasure ground, and the neighbourhood of the square had become thickly populated, and a thoroughfare had been made through it by Act of Parliament, and the piece of ground had become greatly neglected, and was in a ruinous condition, and for many years neither the plaintiff nor his tenants had used, or claimed to use, it as a pleasure garden, and the defendant, whose purchase-deed contained no similar covenant with his vendor, but who admitted that he had purchased with notice of the above covenant in the deed of 1808, and who claimed by purchase under E., removed some of the iron railings, and intended to make footpaths across the ground, and claimed the right of building thereon ; the Court held that this was a breach of the covenant, and he was restrained by injunction, although the plaintiff had not established the validity of the covenant at Law as binding upon the assignee of the land ; Lord Chancellor Cottenham observing that the question was, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased ; and said that Loid Brougham, in Keppell v. Bailey (1), never could have meant (1) 2 My. & K. ,^47. COVENANTS. 83 to lav down that this Court would not enforce an equity attached to Part i. . , Chapter I. the land by the owner, unless under such circumstances as would seot. 14. maintain an action at law ; and that, if that were the result of his observations, he could only say that he could not coincide with it (1). 38. Where there was a covenant, upon a conveyance in fee of premises, with a well in front, with the grantors, who were also lessees of waterworks near, not to sell or dispose of water from a well to the injury of the proprietors of the said waterworks, their heirs, executors, administrators, and assigns, the parties were left to make what they could of the covenant at Law, and a demurrer was allowed to the bill, Lord Bldon observing that he never met with such a covenant, upon which he must try in each instance whether the act of selling the specified quantity of water was a prejudice to the proprietors of the waterworks ; and, further, that the questions were, first, whether this was a covenant running with the land ; secondly, whether the assignees, if named, could have the benefit of it ; and thirdly, whether this covenant, if it did run with the land, would not be destroyed by every new lease ; and, fourthly — and this was open to much argument — whether, with reference to motives of public policy, a Court of Equity would act upon such a covenant (2). 39. Where C. let a building lease for sixty-one years to W., who Remainder- assigned it to the plaintiff for the remainder of his term, and he TnTre^Tivrng rebuilt the house, and laid out £5000 for that purpose, and paid gt^a'-^g^^ the reserved rent of £40 per annum to C. till he died, and on his (1) Tulk V. Moxhay, 2 Ph. 774 ; 1 the parties, therefore, will have the H. & T. 105, affirming S. C. 11 Beav. benefit of, and be bound by, all such 571. covenants ; Vernon v. Smith, 5 B. & A. (2) Collins V. Plumb, 16 Ves. 454. 7, 11; and see the Anonymous Case, A covenant between a lessor and lessee, Moor, 159, pi. 300. But the inter- for themselves and their assigns, to do ferenoe of Equity in such oases is dis- any matter which concerns the lands cretionary, though a Court of Equity demised, falls within the rule laid down has, no doubt, the power to restrain and in Spencer's Case, 5 Rep. 17 ; and in enjoin, for the very purpose of prevent- Balhy v. Wells, 3 Wils. 26, 29, 32; ing the necessity of resorting to an S. C. Wilmot's Notes, 344, 345,349, as action of covenant; but this jurisdiction well as in the Mayor of Conghton v. will only be exercised upon just occa- Pattison, 10 East, 135 ; and must be sions,and to prevent wanton or fraudu- considered as a covenant that runs with lent vexation : Waters v. Taylor, 2 V. & the land. The resjiective assignees of B. 302 (2 Hov. Sup. to Ves. 454). a 2 ii COVENANTS. Part I. death the defendant became entitled as first remainderman in tail, Sect. 14. and, as such, claimed the estate by purchase, and was not bound by the lease, but for six years received the rent, and lay by and suf- fered the rebuilding, and did not by his answer deny that he had notice of it, and then brought an ejectment, and recovered at Law, for want of the usual covenants in the building lease, and the plaintiff brought an injunction bill to be quieted in possession. Lord Chancellor Hardwicke decreed a new lease, with proper cove- nants, and the plaintiff to hold the premises for' the remainder of the term, but no costs to be paid on either side (1). 40. Notwithstanding some early cases (2) which allowed an in- junction against an action for rent where the premises had been accidentally burned, a tenant covenanting to repair (damage by fire only excepted) continues liable to payment of rent notwith- standing the premises are destroyed by fire ; and if he covenant to pay rent during the term, it must be paid, notwithstanding the premises are burned down during the term (3). The fact of the premises being insured makes no difference. The tenant has no equity to compel the landlord to expend the insurance money in rebuilding the premises, or to restrain him from suing for the rent until the premises are rebuilt (4). 41. Where there was a lease for twenty-one years, at £1 rent, with a covenant to tenants to renew from twenty-one years to twenty-one years, to make up ninety-nine years, and at the expira- tion of the first term, there being an arrear of rent due, and no application for renewal, the lessor brought an ejectment, and obtained judgment and possession, ujion a bill filed for renewal (accounting for the delay), on payment of the arrear and interest, it was decreed (5). 42. A covenant in a lease not to let, set, or demise the premises, or any part, for all or any part of the term, without consent, restrains assignment (6) ; and the Court will enforce by injunction (1) Stiles V. Cooper, 3 Atk. m2. Adams, 33'L. J. (Ch.) 639 ; Fouler v. (2) Camden v. Morton, 2 Ed. 218; Bott, 6 Mass. 07 (Amr.) Brovm v. Quilter, 2 Amb. G19; 2 Ed. (4) Leeds v. Cheetham, 1 Sim. 146. 218; Steel V. Wright, 1 T. R. 70S. (5) JRawstor. v. Btntley, 4 Cro. C. C. (3) Hare v. Groves, 3 Anstr. ()S7 ; 415. IloUzapfel V. Baker, 18 Yea. 115; (6) Oreenaway v. Adams, VI Ves. Gregg v. Corites, 23 Beav. 33 ; Poole v. 395. COVENANTS. 85 a covenant in a lease not to assign without license (1) ; and such Paet I. , 1 1 ■ i -ii ii Chapter I. covenants not to assign, underlet, or otherwise part with the pos- guoi. 14. session without consent in writing of the lessor, touch and concern the land, and therefore run with the land, and the lessor can sue an assignee of the lessee for a breach (2). 43. In Macher v. Foundling Hospital (3), upon a covenant against using premises as a shop or warehouse for any trade, without license in writing, or permitting anything which might grow to the annoy- luce or damage of the lessors, or any of their other tenants, of which covenant there was a breach, though not a nuisance in Law, public or private, being an annoyance, the Court refused protection by an injunction against entering up judgment and taking out execution in ejectment for breaches of covenant, there being no license, and said that the permission of one trade would not raise ' an inference that the lessee might afterwards carry on any other, nor would the Court enter into a comparison which trade was more or less oifensive than others ; but the Court added that the real question was, whether, from the circumstance of notice to some of the members, the corporation could be considered as bound, having stood by permitting expenditure, and recommending some arrange- ment that would be satisfactory without turning the plaintiff out of possession pending looking into the answer by the Court as to the point of permitting the expenditure ; and the Lord Chancellor Eldon added, that upon a covenant not to assign without license, once dispensed with, the condition is gone in Law (4), and that Equity had followed that (5) ; yet he should not have thought it a very good decision originally, and he thought that he ought to hesitate to say, that if the license is to be in writing, a mere, act, not establishing whether the party meant a license general or particular, should be taken to be a general license. 44. Where lessee for years under a restriction of alienation, and power of re-entry in such case, died, and his executors entered and enjoyed, and then became bankrupt, and the assignee sold this (1) Dyke v. Tmjlor, 3 De G. P. & J. (4) Dumpor's Case, 4 Co. 119 ; (but 467. see now 22 & 23 Vict. c. 35, ss. 1, (2) Williams v. Mrle, L. R. 3 Q. B. 2, 3, and 23 & 24 Vict. c. 38, s. 6). 739. (5) Brummell v. MacPherson, 14 (3) 1 V. & B. 188. Ves. 173. 86 COVENANTS. Part I. lease to the plaintiff for £50, and the lessor, insisting upon the Sect. u. forfeiture, ejected him ; fer Curiam, the Commissioners' assign- ment, being by authority of a statute, superseded the private agree- ment, and the assignment by the assignees to the plaintiff was no breach of the condition, but good ; and so in Philjpot v. Hoare (1), Doe V. Beavan (2), and Doe v. Carter (3), it was held that an assignment hy operation of law is no breach of a condition not to assign, ex. gr., if the lessee become bankrupt, or the lease be taken in execution, unless such an event be brought about by the fraudu- lent procurement of the lessee himself (4). But the lessor may, by the insertion of express, clear^ and distinct words, render eyen such an assignment a fine or forfeiture (5). 45. The Court will grant no relief by injunction against a forfeiture for breach of a covenant to insure and to keep insured (6), or to pay the premiums and keep up a policy of insurance (7), and insurance after the breach has been committed has no effect in curing the breach (8). In Green v. Bridges (9) the Court would not restrain proceedings in ejectment where the breach of the coYenant to insure was in respect of a lease of 999 years, at a rent of £31 18s. Qd., the actual annual value being admitted by the Court relieves lessor to be £201 10s. But the Court has now been empowered of covenant to by the 22 & 23 Vict. c. 35, ss. 4^9, to give relief against the breach msure agams ^j ^ covenant or condition to insure against loss or damage by fire, where ao loss by fire has happened, and the breach has been committed through accident, mistake or otberwise, without fraud (1) 2 Atk. 219. Harris, 2 Price, 207, n. ; Beynolds v. (2) 3 M. & S. 353. Pitt, 19 Ves. 140 ; Elliott v. Turner, (3) 8 T. E. 57. 13 Sim. 477 ; Oreffory v. TVihon, 9 (4) Doe V. Carter, 8 T. R. 300 ; v. Hare, 6S3 ; Shearman v. Macgregor, 11 Doe V. Hawhes, 2 East, 481. Hare, 106 ; Nokes v. Gibbon, 3 Drew. (5) Doe d. Wyndham v. Carew, 2 681 ; Meek r. Carter, 4 Jur. (N. S.) Q. B. 317 ; Soe v. QaUiers, 2 T. K. 133 ; 992. Davis V. Eyton, 7 Bing. 154; see Doe (T) M'inthrop v. Murray, 8 Hare, V. TIawhes, 2 East, 481 ; Doe v. Clarke, 214. 8 East, 185 ; Doe v. David, 5 Tyrw. (8) Beynolds v. Pitt, 19 Ves. 140 ; 125 ; Cooper v. Wyatt, 5 Madd. 482 ; Qreeii v. Bridges, 4 Sim. 96 ; Elliott v. Yarnold v. Moorhovse, 1 Riiss. & My. Turner, 13 Sim. 477 ; Gregory v. Wil- 364; B. V. Bobinson, Wigh. 386. son, 9 Hare, 689 ; Nokes v. Oihion, 3 (6) Green v. Bridges, 4 Sim. 96; Drew. 681; Mtck v. Carter, 4 Jur. V'/iite V. Warner, 2 Mcr. 459 ; BoJ/e v. (X. S.) 992. (9) 4 Sim. 96. COVENANTS 87 or gross negligence, and there is an insurance on foot at the time Part i. Chapter I of the application to tl>e Court, in conformity with the covenant to gu^T. 14. ' insure, but the Court cannot relieve more than once in respect of the same covenant or condition ; nor can relief be given where a forfeiture under the covenant has been already waived out of Court in favour of the person seeking the relief. Under this statute relief may be given for breaches of covenant committed after the passing of the Act, in leases granted before the statute (1). How- ever, Equity will relieve against forfeiture, if the covenant to insuie has been performed substantially, though it may not have been literally performed. At Law, a covenant by the lessee to insure in the name of the lessor only, is not performed by an insurance in the joint names of the lessor and the lessee, because the arrangement is not so beneficial to the landlord as the arrange- ment for which he had stipulated (2). But in Equity relief will be given against forfeiture where the manner in which the insurance has been effected is not so beneficial to the lessor as that for which he had stipulated, if the covenant has been on the whole substantially complied with ; thus, in Rogers v. Tudor (3), there was a covenant in a lease that the lessee should insure in his own name and in the name of the lessor, in the Law Fire Insurance OfSce, or such other office as the lessor should fix on, and the lessee efiected an insurance in his own name alone, without any communication with the lessor, in the Phoenix Office ; but the Court held, that though this was not a literal performance of the obligation, the covenant to insure was substantially complied with, and that no forfeiture on which ejectment could be brought had taken place (4). 46. The Court will grant no relief against a covenant to repair No relief in a given time, though there is no request by the landlord, unless nf Xto repair there were a stipulation rendering it necessary, and though the ™ ^ ^wen tenant was suffered to continue in possession merely, without rent, &c., and though the specified time in the lease was inserted by mistake, as alleged by the plaintiff; and the quantum of (1) Page v. Bennett, 2 Giff. 117 ; 6 (3) 6 Jur. (N. S.) 692. Jur. (N. S.) 419. (4) See Gregory v. Wilson, 9 Hare, (2) Penniall v. Earborne, 11 Q. B. 683 ; LilUe v. Legh, 3 D. & J. 204 ; 369; see HavensY.Middleton, 10 B.&re, Leather Company v. Brassey, 8 Jur. 641. ■ (N. S.) 425. 88 COVENANTS. Part I. damage is no criterion (1). And a notice to quit does not absolve Sect. 11. tlie tenant from the performance of the covenants in his lease (2) ; and although the parts out of repair had been rebuilt the Court Butreasonabie would not interfere (3). But the Court will allow a reasonable to repair. time to repair (4). In Ex parte Vaughan (5) relief was given And relief against ejectment by the committee of the lunatic's estate against a tenant o^f a ° ^ tenant on a forfeiture by breach of covenant to repair, on the lunatic's ground that it would be an administration in Lunacy extremely prejudicial to the estates of lunatics, if too hard measures were adopted with the tenants, and that the question in this case was, whether this was a case in which a landlord acting for himself would not have taken advantage of the forfeiture. In 8taeh v. Leonard (6), on payment of damages arising from the non- performance of the covenants, the Court granted relief, after a verdict, against ejectment for breach ; but this case must, it is presumed, be considered as overruled by the above cases. Eelief against 47. A Court of Equity will not relieve against a wilful voluntary fendautpre- breach of covenant (7). But where a defendant prevents the vents perforin- plaintiff's performance of a covenant, a Court of Equity will remove the opposition (8). No relief for 48. The Court will grant no relief against a forfeiture by a nuiTtnot to " breach of a covenant not to assign without license (9) ; but semhk, assign without gquJtable agreements giving charges upon the property comprised Semhle, equit- jn a lease, not accompanied with a change of the possession, or able charges . . ,, ^ .,, . __ . , not a breach, other alteration in the property, will not, m Equity, work a forfeiture of a lease, notwithstanding there is a clause in the lease against assignment, if the acts which are relied upon as having •worked a forfeiture can be got over by the plaintiff (10). 49. Where A. granted a lease for twenty-one years to B., with (1) Bracibridge v. Buckley, 2 Price, in pi. 46, ante). 200 ; Gregory v. Wilson, 9 Hare, 689 ; (7) Descarhtt v. Denett, 9 Mod. 22. V. Bargent v. Thompson, 4 Giif. 475. (8) Wood v. Tirrdl, Gary, 59. (2) Gregory v. Wilson, 9 Hare, 683. (9) Hill v. Barclay, 18 Ves. 63 ; (3) Job V. Banister, 26 L. J. (Ch.) Wafer v. Mocatto, 9 Mod. 112 ; Lovat 125 ; 3 Jur. (N. S.) 93; v. Ouage v. v. Lord Eanelagh, 3 V. & B. 24; v. Lockwood, 2 F. & F. 115. Burlce v. Prior, 15 Ir. Ch. Bep. 106. (4) lb. (10) Bowser v. Colby, 1 Hare, 138 ; (5) 1 T. & R. 434. WeatJterall v. Oeei-ing, 12 Ves. 509; (6) 9 Mod. 91 (sfd V. Btynolds v. Gourlay v. D^lke of Somerset, 1 V. & B. I'M, 19 Ves. 141 ; and the other cases 68 ; Cro/t v. Lumley, 6 H. L. 0. 672. COVENANTS. 89 a proviso determining the lease, and giving A. a right of re-entry Pakt I. on non-performance of any of the covenants in the lease, and A. seot. 14. covenanted that at the end of the term, if it should not be sooner determined by B.'s acts or defaults, he would grant to B. a lease for a further term of fourteen years, and B. paid all his rent, and con- tinued in possession after the term had expired, and A. then brought an ejectment against him for breaches of covenant during the term, and B. filed a bill for a specific performance of the covenant to renew, and for an injunction to restrain the action, and A. in his answer set up the breaches of covenant, and denied having had notice of them till after the end of the term ; the Court refused a motion for an injunction (1). 50. Where A., by deed, covenanted to lay out and preserve land in an ornamental manner, according to a certain plan, subject to such alteration as should be made or approved of by him, his heirs or assigns, and as should not destroy the general beauty of the design, and upon selling any part thereof to require purchasers to enter into a covenant not to erect any messuage thereon so as to lessen the value of those already erected, and B. agreed to purchase and build certain messuages in a line with each other, and consistent with the terms of the deed, on part of the land, and after B. had built and taken a conveyance of two of such messuages, in which he entered into covenants similar to those in his agreement, the agreement as to the remainder was cancelled, and the rest of the land conveyed to A., who had sold part of it to 0., who commenced building several feet in advance of the line in which B. had built ; the Court held, that A. had power to vary the details of the plan, and that a purchaser from B. of one of the messuages built by him, was not entitled to relief by injunction restraining C. from building in such manner (2). 51. Where there was a lease from dean and chapter, with a covenant not to make sale of or take any timber trees growing or to grow on a certain part of the premises, save for the necessary building or repairing, &c., of their cathedral church, or of the church buildings thereto belonging ; upon a bill by the lessee to restrain the dean and chapter from selling or cutting, except for (1) Thompson v. Guyon, B Sim. 65. (2) Schreiber v. Creed, 10 Sim. 9 ; 8 L. J. (N. S.) Ch. 346 ; 3 Jur. 625. 90 COVENANTS. Part I. the purposes aforesaid, an injunction obtained on filing the bill Sect. 14. was dissolved on the coming in of the answer stating that the whole of the timber was wanted for the purpose of repairs ; the covenant not extending to deprive them of the right which they might have exercised independent of it ; and deans and chapters not being liable to be restrained in cases of waste, either by pro- hibition or injunction, except in the Ecclesiastical Court, or at the suit of the Crown (1). And so the right to an injunction to restrain a bishop from wasting the property of the see resides in the Attorney- General suing on behalf of the Crown, the patron of bishoprics (2), and, possibly, to some extent in the metropolitan (3). 52. Where the lessor covenanted, at any time, upon the request of the lessee, to cause any quantity of square oak wood to be set out within some part of the lands that should be wanted for the benefit of the lessee, and to be used in the building intended to be made on the demised premises, and the lessee covenanted to pay and allow to the lessor interest for the total amount or value thereof after the rate of £4 for the value of every £100, and so in proportion for a greater or less quantity; on a bill by the assignees of the lease for an account of what was due to the defendant in respect of the breach of that covenant, and for an injunction to restrain proceedings in ejectment for the recovery of the premises on the ground of a breach of covenant, the Court overruled a general demurrer (4). Breach of 53. Where a breach of covenant is threatened, and has been partiy^exe- partly executed, the Court, having jurisdiction to restrain the cuted re- breach, will also award damages in respect of the executed damages for breach (5). breach. 54. Where a breach of covenant is proposed, the Court will The Court j^Qf refuse to interfere on the ground that there has been a mistake will not refuse /. i i • • i interference on the part of both parties m the form of the covenants, or that the of mistake™ aggrieved party may have already permitted some other infringe- (1) Wither v. Dean, Ac. of Winches- iviUiam v. Moore 3 Ir. Eq. 615. ter, 3 Mer. 421 ; v. Herring v. Dean (3) Wither v. Dean and C'/iu^ter of and Chaptir of St. Paul's, 3 Sw. 49L'. Wi ichester, 3 Mer. 427. (2) Kuujht V. Mosehy, Amb. 17li ; (4) Pearson v. Iloghton, 3 Y. & J- JejferaoH v. Bishop of Durham, 1 B. & P. 413. 116-131 ; WiUin- V. Dean and Chapter (5) Hindlaj v. Emery, 11 Jur. (N.S.) of Winchester, 3 Mer. 427 ; Marl Fitz- 874. COVENANTS. 9 1 ment of the coyenant, or on the ground of inconvenience to the Paet i. m .V. • 1 T • • e -XT- ChAPTEB I. public; Lord Justice Turner, afiarming the decision oi Vice- Sect. 14. Chancellor Kindersley, granting an injunction to restrain a rail- both parties way company building certain works for their line at variance with ™ ^rm of ^ a covenant by the company ; and before the Court would refuse ineonvenience „ . 11 1, i_Lj.-ij to the public; to enforce a covenant, it must be clear that no substantial damage could arise from the breach of it (1). But Lord Justice Knight Bruce was against the injunction, on the ground of the " strange imprudence " of the covenant, and that the injunction must neces- sarily cause directly, such a great amount of evil and loss to the defendants, as to their private interests, and such a very serious amount of inconvenience and mischief to the public ; and was of opinion that the matter should be left to Law, and the injunction dissolved without prejudice to any action the plaintiff might bring (2). In this case. A., an owner of land through which a company proposed to make a railway upon a viaduct, withdrew his opposition to the company's bill in Parliament in consideration of an agreement by the company not to erect on the land to be taken by them from him, within eighty feet from other premises in his possession, any building, " except their proposed railway," above the height of eighteen feet, and the bill passed, and a viaduct thirty feet high, part of which was within eighty feet from the plaintiff's premises, was erected on the land taken from A., and this viaduct was wide enough for, and carried two lines only ; and subsequently to its erection a conveyance of A.'s land to the company was prepared and executed, which contained a covenant on the part of the company to the same effect (omitting only the exception as to the railway, then completed) as the provision in the agreement restraining buildings, and on the company after- wards beginning to build brick piers above the height of eighteen feet, within eighty feet of A.'s other premises, with a view to widening their viaduct so as to carry four lines instead of two, the Court granted an injunction to restrain the company from erecting any such buildings in breach of their covenant (3). And the circumstance that a work undertaken in breach of a valid (1) Lloyd v. London, Chatham and 401 ; 13 W. E. 698 ; 12 L. T. (N".S.) Dover Railway Company, 34 L. J. (Ch.) 362. (2) lb. (3) lb. 92 COVENANTS. Part I. covenant is one of great public importance, is not sufficient to Sect. 14. induce a Court of Equity to refuse to restrain the breach of nor because Covenant (1). the work IS of 55^ wijere an owner of building ffround upon which houses of uni- great public " ^ ^ importance, form height and depth had been built, sold it in plots, and conveyed each plot in fee subject to a perpetual rent-charge ; and each pur- chaser covenanted with the grantor not to build more than eight feet high in the garden next door to his house, and not to allow trees or buildings over that height upon land lying in view of his house ; but in process of time tall trees were allowed to grow up, and cottages were built upon the latter land, and the party entitled to the benefit of the covenant, or those through whom he claimed, never interfered ; Lord Chancellor Chelmsford, affirming a decision of the Master of the Rolls, held, that this non-interference could not operate to prevent his enforcing the covenant to restrain a building in the garden, and the Court held that upon a covenant not to build or allow trees to grow above a certain height, the object of w hich was to prevent obstruction of the view from certain houses, substantial injury was not requisite in order to enable the Court to interfere and restrain a breach of covenant, and that it was a breach of the covenant to erect any building above the prescribed height extending beyond the back of the house, though the ground upon which such building was erected had never been used as a garden, and that a person entitled to complain of such breach of covenant had not waived his right bv a passive acqui- Acquiescence escence ill other breaches ; and acquiescence in a breach of cove- without sub- nant not attended with substantial damage will not bar the right dama "e no *° restrain a subsequent breach so attended ; and the Court also bar to restrain- held, that the Owner of one plot was entitled to maintain a suit to ing breach with. restrain a breach of covenant against the owner of another plot without making the other owners parties ; and the Lord Chancellor also held, that, whether the covenants did or did not run with the land, a purchaser of one of the houses, with notice of the covenants, was bound by them in Equity ; and in this case an injunction was granted, at the suit of the owner of one of the houses, resti-aining a breach of the covenants by the owner of another house, notwith- (1) Lloyd V. London, Chatham L' T,. J. {{'h.) 001. (2) lb. NUISANCE. 103 ship-way leading from a town to the sea-shore from the north-east Part I. Ohaptp'r T to the north-west, and this, so far from producing any injury would seot. 15. make a more convenient landing-place, the Court decided that, whether they were authorized or not, it would not interfere in the matter (1). 7. Although a very strong case of nuisance (in this case smell. The Comi; &c., from petroleum works) may be established by the affidavits in etrong^ourse support of an interlocutory motion to restrain the noxious manu- \° ^*°P ca"7- '■ ' ... iJ^S 01 ^ trade factory, the Court said it considers it a very strong course to stop by interlocu- the carrying on a trade by interlocutory injunction ; and reserved the question until the hearing of the cause, which was advanced for that purpose (2). 8. Where a nuisance is only temporary the Court will hesitate If nuisance to grant a mandatory injunction on an interlocutory application court he^'- before the hearing (3). ^^^^ *° f""^ o V / a mandatory 9. Tlie right of prosecution, given to the Home Secretary by injunction on 21 & 22 Vict. c. 104, s. 31 (altering and amending the Metro- application, polis Local Management Act, 1855), does not supersede the right of private persons aggrieved by the nuisance to an injunction (4). 10. The Court has power to interfere with a public body in the Court has exercise of powers conferred by Act of Parliament, where the exer- fere with™ ^^' cise is not hond fide, but where powers are so conferred the Court P"^li? bodies •' ' '■ exercising will not assume that the exercise of them will create a nuisance ; powers con- however, where the Court of Appeal was satisfied upon the evidence if not exer- that the intended convenience, namely, a urinal, would not ofS^^ """ necessity be a public nuisance, and also that it was neither certain nor probable that the vestry, the defendants, were exceeding nor would exceed their statutory powers, and that the vestry were not influenced by any improper motive, it dissolved an interlocutory injunction granted by the Vice-Chanpellor Sir J. Stuart. In this case a vestry, acting under the powers of sect. 88 of 18 & 19 Yict. c. 120 (the Metropolis Local Management Act, 1855), resolved to erect a urinal in a situation where the vestry deemed such accom- modation was required by the public; but where B., residing nearly (1) Hyde Commissioners v. Isle of (3) Att.-Oen. v. Metropolitan Board Wight Ferry Compamj, 30 Beav. 616. of Works, 9 L. T..(N. S.) 139. (2) Att.-Oen. v. Charles, 11 W. E. (4) Att.-Oen.v. Metropolitan Board 253. of Works, 1 H. & M. 298. 104 NUISANCE. Part I. Ohaptbb I. Sect. 15. Burning bricks offen- sively to a neiglibour will be re- strained. opposite the proposed site of the urinal, and other occupiers of houses considered that it would be a private nuisance, and the Vice-Chancellor granted an injunction until the hearing of the cause, restraining the vestry from proceeding to make tlie erection complained of, on the gi-ounds that the Act conferred no power to enable the vestry to erect that which would be a nuisance to any- one ; and that the vestry had no power to suppress nuisances ; and that the Act conferred no arbitrary power, which appeared to have been exercised, on the metropolitan vestries (1). 11. Burning bricks on a man's own ground so as to be offensive to a neighbour, is a nuisance, and will be restrained by injunction. In this case a landholder had built a house, and laid out grounds, shrubberies, and gardens adjacent thereto before 1829, and let the same to a tenant, and the house was continuously occupied as a dwelling-house from that time down to 1851 ; and early in 1850 the owner of adjoining land began to manufacture bricks of the clay or earth of the same land, by burning in a clamp, which was erected within 144 feet of the dwelling-house, and within fifteen feet of the stable ; and a bill was filed by the landowner and his tenant, praying an injunction to restrain the neighbouring landowner from proceeding with the manufacture of the bricks ; the Court held, that the brickmaking was a private nuisance, and (as the parties on both sides requested the Court not to send a case for the opinion of, or an action to be tried by, a Court of Law), that an injunction must be granted to restrain the defendant from burning bricks on his ground so as to occasion damage or annoyance to the plaintiffs, or either of them, as owner or occupier of the house and grounds, until further order (2). 12. Where a party in the exercise of private rights over his own property, on a portion of his own land, does acts which interfere with his neighbour's right to the enjoyment of pure air, and cause injury to the neighbour's property, and there are other situations on his land where he might do the same acts with equal or nearly equal benefit to himself, and without any or with con- siderably less inconvenience to his neighbour, the Court will (1) Biddulphv. St. George's, TJanovcr 739 ; 8 L. T. (X. S.) 44, 55S. Square (Vei.try), 33 L. J. (Ch.) 411 ; (2) Walter v. Selfe, 4 De G. & Sm. 'J Jur. (N. S.) 434, 95;;. ; 11 W. H. 524, 315 ; 15 Jur. 4U!. NUISANCE. 105 interfere by injunction ; and the Court refused to direct an action Pabt i. Ohapter T to try the question of whether the acts complained of amounted to sect. 15. a legal nuisance or not, being satisfied of the facts, both of the defendant having other available lands at his disposal, and of the plaintiff having sustained an injury. In this case the defendant had contracted with government to supply a large quantity of bricks for the erection of the fortifications at Portsdown Hill, and had obtained a lease of land, containing brick clay, upon which he erected brick-kilns within 340 yards of the plaintiff's mansion, and close to the boundary of her property ; and he proceeded with the burning of bricks, which was an annoyance to her and a destruction to her property, by interfering with her comfort and enjoyment of the mansion, and injuring or destroying the trees planted and standing for ornament, and for the purpose of excluding the view of unsightly objects from the mansion ; and Vice-Chancellor Sir J. Stuart granted an injunction to restrain the nuisance, there being nothing to shew that the defendant might not have burnt the bricks elsewhere so as not to be a nuisance, and directed that the defendant should not burn any bricks within a distance of 653 yards from the house (1). 13. Where there is some convenience afforded to the public, the Conservators of the Thames have, subject to the sanction of the Board of Admiralty, such a right to erect piers or landing- places, at such points and in such manner as they think fit, that their discretion is conclusive on the question of nuisance to the navigation, and the Court cannot restrain them upon any ground arising out of the balance of convenience and inconvenience ; and under the Thames Conservancy Act, 1857 (20 & 21 Vict. c. 147), the Conservators of the Thames being empowered to erect piers at any convenient place, of such form and construction as they should deem advantageous to the public, and causing the least obstruction to the navigation, the plans to be first approved by the Admiralty ; Vice-Chancellor Sir W. P. Wood held, that the Court had no jurisdiction to interfere by injunction at the suit of the Attorney- General, on the ground of the alleged inconvenience of proposed piers, or, at most, that it could only interfere where it was shewn (1) Beardmore v. Tredwell, 3 Giff. 683 ; 9 Jiir. (N, S.) 272 ; 7 L. T. (N. S.) 207 ; 31 L. J. (Ch-) 892. 106 NUISANCE. PabtI. that the piers would be entirely useless (1). The Statute also OlIAPTEU I. , . 1,1 1 , , , , Shot. 15. airected that, whenever the conservators should remove or obstruct the free use and enjoyment of any public stairs or landing-places marked by the Watermen's Company, they should erect equally convenient stairs or landing-places in substitution for them ; and the Vice-Chancellor also held, that the substitution of new stairs or landing-places was not a condition precedent, but a condition subsequent to the removal or disturbance, and that where the conservators had prepared plans for piers which would interfere with such old stairs, without shewing any adequate provision in substitution for them, the Court would not assume that the duty would be neglected, and would not interfere at the suit of the Attorney-Greneral to restrain the works until proper substitutes should be provided for the old stairs, and that the remedy, if afterwards the conservators did not erect other stairs equally con- venient, was by mandamus. The Statute (2) contained (in sect. 179) a saving of all rights to which any owners or occupiers of any land on the banks of the river, including the banks thereof, were by law entitled ; and the Vice-Chancellor held that the right of access to a wharf was a private right within this saving, and that the Court would restrain the conservators from depriving any person having a right of access to the river from his own land ; but that a pier which rendered the approach to a wharf less convenient without rendering access impossible, was an interference, not with the private right of access, but with the public right of navigation enjoyed by the wharfowner in common with the rest of the public, and that such right was not among those comprised in the statutory saving; and the information and bill, instituted to restrain the erection of piers by the conservators, and from obstructing the use of public stairs and impeding access of vessels to the plaintiffs' wharves, and the other suits, in respect of injury to the private rights of the plaintiifs, were dismissed, but without costs, on the ground that the questions raised were of great nicety and might reasonably be brought before the Court, and that the rights (1.) AU.-Qen. v. Gmservators of paiiy v. Same, Thornton v. Same, 1 E. Jliver TJiames, City of London Brcircnj & iM. 1 ; 8 Jiir. (N. S.) 1203 ; 11 W. Company v. Same, Oloihii'ur/cers' Con- R. 1G3. (2) Siqjra. NUISANCE. 107 claimed by the defendants were extreme, and that there could be Paet i. no doubt that the property of the plaintiffs would be seriously gj-ox. is. ' injured (1). 14. A party is entitled to an injunction to restrain pollution of water passing by his property, though it be done by direction of a local board of health. In this case the sewage of a town had, by such direction been, by means of drainage, conveyed to a river ; this sewage, not having been completely deodorized before coming in contact with the river, had so polluted the stream passing the plaintiff's property as to kill the fish therein, and otherwise cause a nuisance ; Yice-Chancellor Sir W. P. Wood granted the plaintiff an injunction (2). 15. It is no answer to an information at the relation of a local No answer . . that a local board of health to abate a nuisance arismg from sewage, that the board plaintiff board has power itself to remedy the evil by making sewers ; Yide^a*" remtdy because it is the duty of the board to prevent a nuisance arising ^°^ ^ nuisance *' ' ° irom sewage. in its district, instead of putting the ratepayers to the expense of additional works. If a public body which has power given it by a A public body statute for the performance of a particular object, exercises its cise of its tta- powers so as to injure the property of others, it is responsible for responsible ^^' the injury, unless the act done was absolutely necessary for the ^'"' i^J^^^y *o '' ■' . J J property — un- performance of the object of the statute. Where a plaintiff has less the act T,..!., .. ,. .. . ,1 .. be absolutely proved his right to an injunction against a nuisance or other injury, necessary for it is no part of the duty of the Court to inquire in what way the '^^ "inject. defendant can best remove it, and the plaintiff is entitled to an injunction at once, unless the removal of the injury is physically impossible ; and it is the duty of the defendant to find his own way Defendant , p ,1 j.£e 1. 1 , ■ • ., must find his out 01 the ditnculty, whatever inconvenience or expense it may own way to put him to. In such a case, a reference before the decree to an y,':'L°7'^ *'"*. UUlSorTlCGj (KC. expert, under the 15 & 16 Vict. c. 86, s. 43, as to the existence of the injury, or as to the best mode of removing it, is improper, notwithstanding Yates, v. Jaslt (3) and an unreported case of B.eatli V. Wallingford ; but when the difficulty of removing the injury is great, the Court will suspend the operation of the injunction for a (1) Ati.-Gen. v. Conservators of & M. 1 ; 8 -Jur. (N. S.) 1203 ; 11 W. liiver Thames, Gity of London Brewery R. 163. Company v. Same, Clothworheri Com- (2) Bidder v. Croydon Local Board pany v. Same, Thornton v. Same, 1 H. of Ilealth, 6 L. T, (N. S.) 778. (3) L. R. 1 Ch. 295. 108 NUISANCE. Part I. time, with liberty to the defendants to apply for an extension of Sect. 15. time ; and where an information was filed at the relation of a local board of health, praying for an injunction to restrain the visiting justices of a county lunatic asylum from allowing the sewage from the asylum to pollute a certain stream — the facts of the pollution of the stream existing, and of being attributable in part to the sewage of the asylum, being proved — the Court of Appeal, varying an order made at the hearing by Vice- Chancellor Sir E. Malins, granted an injunction, but suspended its operation for three months to enable the defendants to make the necessary arrangements, with liberty to the defendants to apply for an extension of time (1). The Lunatic Asylums Act, 1845 (8 & 9 Yict. c. 126) does not, by requiring the justices to build limatic asylums, impliedly authorize them to allow the sewage from the asylums to create a nuisance (2). 16. In Attorney-General v. The United Kingdom Electrie Tele- graph Comjpany (3) the Master of the Rolls refused to grant an injunction to restrain acts which were alleged to be a pubhc nuisance, and also injurious to the private rights of a private person, until the question of nuisance and injury had been first determined at Law, on the ground that under the circumstances a jury was the best tribunal for the trial, both of the public and private nuisance. In this case a telegraph company, without any parliamentary powers, had laid down their wires in tubes under a public highway, and an information and bill were filed complaining of this and other acts as a nuisance to the public and as an invasion of the rights of the owner of the adjacent land in the soil of the road ; and the Court, grounding its determination on the considera- tions that the question, what is a nuisance, is one peculiarly fitted for the investigation of a jury, and that in an ordinary case, where the issue of a suit in Equity depends upon a legal right, that right must be ascertained in an action before any relief can be granted by a Court of Equity ; directed that the questions of nuisance and trespass should be tried at Law, but retained the bill until after such trial. (1) Att.-Qen. v. Colney Hatch Luna- tic Asylum, L. R. 4 Oh. 146 ; 38 L. J. (3) 31 L. J. (Cb.) 320 ; 30 Bcav. (Ch.) 205 ; 17 W. It. 240 ; 19 L. T. (N. S.) 708. (2) lb. (3) 31 L. J. (Cb.) 320 287; 5L. T. (N, . S.) 338. NUISANCE. 109 17. Where a railway company being in the use and occupation Pakt I. of a railway bridge over a highway, and being owners of the soil seot. 15. ' on either side of the road, commenced the construction of buttresses '^ in the road, on a line with the existing abutments, for the purpose of widening their bridge, and the plaintiffs, in whom the soil of the road was vested under the Metropolitan Management Act, as surveyors of the highways, filed a bill to restrain the company from further narrowing the road on the ground of public incon- venience ; the Court refused the injunction on the ground that the No injunction inconvenience was not of sufScient magnitude for the interference venience of the Court ; and held further, that as the soil was vested in the ^™'**^- board for the convenience of the public, the Court would not* interfere by injunction, as the inconvenience to the public passing along the lane would be none, or very small (1). 18. Where an owner of houses who lives at a distance from them applies for an injunction, on the ground of nuisance to the inhabitants of such houses, the Court will not interfere by an interim injunction where there is no evidence of such inhabitants in support of the applicant ; nor will the Court, where it has good No interim ground for concluding that a present nuisance is temporary, grant gTOTground an interim injunction in order that the plaintiff mav brins an for concluding ■^ I J o nuisance is action which may be nugatory (2). temporaiy. 19. Where a covenant not to create a nuisance applies to allottees infer se, a nuisance on adjoining land not part of the allotment is not a fraud on the covenant (3). 20. The question whether brick-burning is a nuisance in the sense of being an annoyance must depend on the circumstances, and no distance can be fixed (4). 21. In Haines v. Taylor (5) the Court refused an injunction to No injunction restrain the erection of gas-works in the vicinity of the plaintiff's contlngeu't residence, it being uncertain whether upon the completion of the °"sa'"=e. works, the manufacture of gas would prove a nuisance. Where a work is going on, which though not in itself a nuisance will mani- festly end in operations presenting such a nuisance as this Court (1) Wandsworth Board of Works v. (2) Cleeve v. Malmny, 9 W. E. 882. London and South Western Mailway (3) lb. Company, 31 L. J. (Ch.) 854 ; 8 Jur. (4) lb. (N. S.) 691. (0) 2 Ph. 209 ; 10 Beav. 75. 110 NUISANCE. Pakt I. restrains, this Court will interfere at once; but in this case the Sect. 15. motion, being for an injunction to restrain a contingent nuisance, was refused, and the Lord Chancellor held, that the motion ought to be refused with costs, an'l not stand over. 22. In Dewhirst v. Wrigley (1) it is ruled that where the Court interposes by injunction to prevent a nuisance it ought to make provisions for having the question between the parties (then) tried at Law ; and, pending proceedings at Law to try the right of the plaintiff to the use of water, as he claims it, by a watercourse. Equity will restrain the defendants from obstructing such water- course ; but that proper provisions should be made for having the question (at that time) tried at Law. 23. Where the plaintiff, a market gardener, occupying, under a renewed lease, expiring in 1874, lands adjoining the works of a gas company, brought an action, by direction of the Court of Chancery, to recover damages for an injury done to his crops by the noxious matter issuing from the company's works, occasioned by the erection of gas-works much larger, and nearer the plaintiff's premises, than their former works, and the action was referred to arbitration, and nearly two years elapsed before the award was made, in the course of which time alterations in tlie mode of carrying on the business complained of were effected by again enlarging the works, and two months after the date of the award an injunction was applied for ; the House of Lords — affirming the decision of Lord Chancellor Cranworth (who had affirmed the decision of Vice-Chancellor Sir ^'. P. Wood) — held, that there had not been any such acquiescence or laches as to deprive the plaintiff of his right to the injunction ; and the Lord Chancellor, in the Court below, and the House of Lords, being satisfied with the award, holding it to be equivalent to a verdict of a jury, declined sending the case again to Law, although the ordinary rule was (then) not ta grant an injunction to restrain a nuisance until the existence of the nuisance had been established by the verdict of a jury (2). Vice-Chancellor Sir W. P. Wood granted a perpetual injunction (1) Coop. U. P. 319. 1319 ; Broadbeut \. Imperial Gaslight (2) Imperial Qash)/lit and Coke Com- and Coke Company, 3 L. J. (X. S.) pauy V. Broadbeui, 7 H. L. C. 600 ; 7 2L''l ; 2 L. J. (N. S.) 1132. De G. M. et G. 430 ; 5 Jur. (N. S.) NUISANCE. Ill restraining the company from manufacturing gas so as to injure Paet I. CyHA PTER I plaintiff's crops, and the Vice-Chancellor held, that where there is gj-cT. 15. no suspicion of rivalry in trade heing the motive, the Court shews a disposition less carefully to balance the comparative inconvenience caused to the contending parties by granting or withholding the injunction, and to consider more the absolute wrongdoing ; and as to motives of public policy alleged to be involved by an in- Motives of junction which would render the due lighting of the streets and as to render- public buildings impossible, these were not allowed to be brought J-'^ti^ng "f" forward by a wrongdoer to maintain him in his wrong: : nor was streets impos- . . . . -, Bible, not any weight allowed to the circumstance that the plaintiff only allowed to be alleged a case of pecuniary damage, which admitted, therefore, of -warTby a complete pecuniary compensation, without having recourse to ^™°^'^°j^+~ the extraordinary relief by way of injunction (1). allowed to the ^jTP 1 • -iv Tin • ■ • • I- -I circumstance 24. If a plaintiff applied for an injunction in respect of a viola- tiiat only a tion of a common law right, and the existence of that right, or the niary°damao-e fact of its violation, was denied, he was obliged to establish his ^^^ alleged. right at Law ; but having done that, he was, except under special circumstances, entitled to an injunction to prevent a recurrence of that violation, and for such a purpose the award of an arbitrator was equivalent to a verdict ; and if, between the time of the case being referred and the award being made, there had been an alteration in the mode of carrying on the business complained of, it might, if in diminution of the cause of injury, be shewn as an answer to the application for an injunction ; but if in increase of the cause of injury, as was the case here, it needed not be the subject of a fresh proceeding at Law ; that was matter for the discretion of the Court of Equity, and although a bona fide alteration might have been made with the object of abating the nuisance the party was not bound to proceed at Law to ascertain the fact (2). 25. Though A. may be disentitled by acquiescence to an injunc- Acquiescence tion to stop B.'s manufactory, which is noxious to the neighbour- ^„^^^''*'T.°^ hood, yet it does not consequently follow that B. is entitled to an in- ji^'ipus, creates junction to prevent A.'s recovering damages at Law, and Equity may acqui'^soence (1) Imperial Gaslight and Cohe Com- 1319 ; Broadhent v. Imperial Gaslight pany Y.'Sroadbent, 7 H. L. C. 600; 7 and Cohe Company, 3 L. J. (N. S.) De G. M. & G. 486 ; 5 Jur. (N. S.) 221 ; 2 L. J. (N. S.) 1182. (2) lb. 112 NUISANCE. Paet I. leave both parties to their legal rights ; and though an occupier of Sect. 15. lands acquiesces in the erection of works on adjoining land, which in the exten- ^PP^^' ^'^^ ^0 be, and are not, in fact, injurious, there is no implied sion of those acquiescence in the natural extension of those works in the ordinary works, and . ■, , n -ii '• i Court will not course of Operations ; and the Court will not restrain the party for dama^er"^ aggrieved from proceeding at Law to obtain compensation by Acquieaoenoe damages for the injury sustained (1) ; and acquiescence in the works while erection of noxious works while they produce little injury does not Fitti'"*'^''^ warrant the subsequent extension of them to an extent productive does not war- of great damage (2) ; and in this case the Court refused an injunc- sionproduc- tion to prevent, on the alleged ground ot acquiescence, a party dama^e^^" injured by copper- works from enforcing a judgment recovered by him for damages at Law, with costs (3). 26. Where a road had been altered in 1855 in a manner which the plaintiff considered likely to retard the escape of water in time of flood, and thus to aggravate the mischief done by floods to his property, and especially to do him serious damage on the occur- rence of great floods, such as might be expected every twenty or thirty years, and while the works were in progress in February, 1855, he threatened proceedings to stop them, and in 1857 a great flood occurrad, shortly after which, in December 1857, he filed a bill to have the road restored to its condition before 1855, and to have compensation for the damages done by the flood of 1857 ; the Court held, that the fact of no serious damage being done in the Delay (here) interval did not excuse the delay, and that he was not entitled to reKef. have the bill retained pending a trial, but dismissed the biU. with costs, without prejudice to any proceedings at Law (4). Where nu!- 27. Although the Court of Chancery will sometimes refuse an sance causes ..... , . . r • , i ±^ substantial mjuuction to restrain a nuisance, as, for instance, where tne nent 'damage "damage IS infinitesimally small, and the continuance of the nuisance to an indivi- of short duration ; yet where the nuisance causes substantial and dual, Court . , . , grants injunc- permanent damage to an individual, the Court will not refuse an t.he"aot°caus- injunction, even though the act causing the nuisance may in its ing thenui- results be beneficial to the public (5). sauce IS bene- ^ ^ ' ficial to the public. (1) Banhart v. Houghton, 27 Eeav. (4) Wicks v. Euiit, 1 Job. 372. 425 ; 5 Jur. (N. S.) 282 ; 28 L. J. (Ch.) (5) Broadbent v. Imperial Oas Com- 473 ; 7 W. E. 197 ; 32 L. T. 382. pany, 3 Jur. (N. S.) 221 ; 26 L. J. (Ch.) (2) lb. (3) lb. 270. NUISANCE. 113 28. In Pollock v. Lester (1) an injunction was granted before Part I. OfTAPTFR T trial at Law, to restrain the burning of bricks, not then already sect. i5. burning, in clamps on ground within sixty yards of the plaintiffs' gumino- of houses, and from continuing, after a certain day, to burn such as l^ioks re- • • ™. 1 1 strained were then burning, upon evidence of ill consequences suffered by before tiial at some of the plaintiffs and their families from the noxious effects evidenpe of of the operation ; the plaintiffs undertaking to proceed with the ^ ug^g^^'jo action at the assizes about to take place, and to abide any order plaintiffs the Court might make as to damages to the defendant (2). 29. In Attorney-General v. Sheffield Gas Consumers Comjpamy (3) Thedisturb- the disturbance of the pavement in a town by an unincorporated pavementln a gas company for the purpose of laying down gas-pipes was held *°'*^ *" ^^^ by the Lord Chancellor and Lord Justice Turner (dissentiente pipes not such Lord Justice Knight Bruce) not to be such a nuisance as to be a sufficient fnr sufficient ground for an injunction, either upon a bill or upon an ^" injunction. information. In this case a gas company was incorporated by Act of Parliament for the purpose of supplying the town of S. with gas. Some years afterwards another company was formed, and, in 1852, registered under the Joint Stock Companies Eegistration Act, for a like purpose, and- commenced opening up the streets and high- ways of S. to lay down their pipes, &c., some of the inhabitants approving and some disapproving of the works; and, upon an information and bill by the incorporated company, the Court (Lord Justice Knight Bruce dissentiente) refused an injunction to restrain the new company from continuing their works, the nuisance or damage being trivial. And in Attorney- General v. Cambridge Consumers Oas Company (4) Lords Justices Wood and Selwyn held (reversing the decision of Vice-Chancellor Sir E. Malins), that the disturbance of the pavement of a town by an unincorpo- rated gas company, without lawful authority, for the purpose of laying down gas-pipes, is not a nuisance so serious and important, or so continuous an injury, that a Court of Equity will interfere by injunction to prevent it, and the views of the governing body of a town, and the motives of the persons instituting a suit, are not immaterial where the complaint is of a public injury. (1) 11 Hare, 206. (4) L. R 4 Ch. 71 ; 38 L. J. (Cb.) (2) lb. 94 ; 17 W. R. 145 ; 19 L. T. (N. S.) (3) 3 De G. M. & G. 804; 17 Jur. 508. 677; 22 L.J. (Ch.) 811. I 11-i NUISANCE. Part I. 30. Time is an ingredient whicb is to be considered in deter- Bkot. 15. niining a question of injunction, although the application be on ~. : behalf of the Attorney-General, and laches may be a defence to Tune IS an . . . ingieciieut an application for an injunction by way of information as well as nd laches a defence, both upon a bill (1). and w'™''''™ 31. Although the motives with which a suit is instituted are not generally to be regarded, they are not wholly immaterial when the complaint is of an alleged public injury ; and the views of the majority of the inhaljitants of a town, and of their governing body,, are not without weight on such questions (2). 32. It is not enough to shew a nuisance to constitute a case for an injunction ; but if it is a continuing nuisance, the Court will not refuse an injunction because the actual damage arising from it is slight (8). No injunction 33. Where a bill was filed by a married woman, by her next establish If friend (her husband and others being defendants), in respect of her nuisance is separate property, alleging a nuisance by reason of a noisy trade, able and capa- which destroyed her rest, and depreciated the value of her pro- sation. psrty, but tlie evidence as to the nuisance was conflicting, and no action had been brought ; Vice-Chancellor Sir R. T. Kindersley held, that the nuisance, if there was one, was not irremediable, but capable of compensation by damages, and that there could be no injunction till the right was established at Law (4), though, had the nuisance been irremediable, and not capable of compensation, this Court might impose terms, pending the trial of the question of nuisance, to protect the property in its existing state. The Vice-Chancellor said that he felt so much doubt, also, whether the plaintiff could maintain the suit at all, that he should feel great difSculty on that ground alone, his diiEculty being whether the plaintiff could sue alone, or by her next friend, in respect to a personal nuisance to herself and lier husband ; and that as to mere depreciation of value in property, that was not a ground of pro- ceeding as for a nuisance (5). 34. Where a plaintiff, a single parishioner, filed a bill against some of the churchwardens of his parish, and complained of works (1) Att.-Qen. v. Sheffield Gas Con- (3) Ib.^ sumers Company, 3 De G. M. & G. 304. (4) WJnte v. Cohen, 1 Drew. 312. (2) lb. (5) lb. NUISANCE. J 15 intended to be executed by them for warming the church, which, PaktI. he alleged, in the way in which it was proposed to execute them, seot. 15." would be injurious to health, and would constitute a nuisance ; but the plaintiff did not allege any right of property in a particular pew, but ]ie alleged that he was a parishioner, and that he was in the habit of attending divine service in the parish church ; Lord Cranworth was very doubtful whether such a bill could be sus- tained by a single individual. In this case much negotiation had taken place, in the course of which the defendants had shewed a continued acquiescence in the suggestions made by the plain- tiff as to the mode of executing the works, and had suspended their execution ; and while these negotiations were still going on, and before any works were commenced, the plaintiff filed his bill for an injunction, and obtained special leave to give notice of motion, and served the notice of motion on the day following the service of the notice of motion ; and the defendants, in order to avoid litigation, passed a resolution at a vestry, at which the plain- tiff was present, that the works should be wholly abandoned, and after that the plaintiff brought on his motion ; the Court held, Useless und without going into the question whether there would be any nui- motion re- sance, that, under the circumstances, the motion was useless and ^^^^ ^^'* improper, and it was refused with costs (1). 35. In Soltau v. De Held (2) Vice-Chancellor Kindersley granted Eingmg of an injunction, after a trial at Law, to restrain the ringing the bells occasion imi- of a Eoman Catholic church so as to occasion any nuisance, dis- gti'ained" turbance, and annoyance to the plaintiff, who resided near the church. In this case the plaintiff, in the year 1817, became the lessee of a dwelling-house which formerly constituted part of a large mansion, the other part of which was also occupied as a dwell- ing-house till the year 1848, when it was purchased on behalf of a Roman Catholic community, who converted the lower rooms into a chapel, and erected a bell at the top, which bell was rung at various times every day, commencing at 5 in the morning. Subsequently, a chapel, capable of containing 400 persons, was built in the front of the house so adjoining to the plaintiff"s house, and a belfry was erected, containing six large-sized bells. These bells were also rung very frequently. The plaintiff brought an action against the (1) Woodman v. Rohinsm, 2 Sim. (N. S.) 204. (2) 2 Sim. (N. S.) 133. I 2 116 NUISANCE. Paet I. defendant, who was priest of this Catholic chapel, on the ground Sect. 15. that the bells were a nuisance, and recovered 40s. damages. The bells were only rung afterwards on Sundays for five periods of five A bill may be minutes each. The plaintiff filed his bill for an injunction to individual for restrain the ringing ; and the Vice-Chancellor held, upon a de- nuisam^ murrer for want of equity, that a bill might be filed by an indi- although it -vidual, alleging a private nuisance, although the nuisance might at public nui- the Same time be public. And where a plaintiff suffers a particular sauce. injury from the obstruction of a public way, a bill for an injunction in Equity will lie, and the Attorney-Greneral need not be a party (1). 36. A Court of Equity would not exercise its jurisdiction by injunction, at the instance of an individual, against an alleged nuisance, without a previous trial at Law, or without its being clearly proved that the plaintiff had sustained such substantial injury as would have entitled him to a verdict for damages in an action at law (2). Where evi- 37, Wliere a motion was made for an injunction to restrain the deuce conflict- iug and in- defendants from proceeding with a shaft and other works, by which pa^ticabl^" the plaintiff was apprehensive that his brine-pit and apparatus for interlocutory ^.j^q manufacture of salt would be irremediably injured, and the refused. evidence of the plaintiff and that of the defendants was altogether conflicting, and an inspection of the defendants' shaft was imprac- ticable in consequence of its being fiUed with brine, the Comt refused an interlocutory injunction, and directed that the costs of the defendants should be costs in the cause, but that the question, whether the plaintiff's costs ought to be costs in the cause, should stand over tiU the hearing (3). Neither lessor 38. Where A., being the owner of two adjoining houses, demised lesse'eTcan'^*' °^^ to B., and afterwards demised the other to C, neither A. nor alter that one Q p^jj make such alterations on the premises demised to the latter lessee s pre- _ _'• mises to pre- as will prevent the comfortable enjoyment of the house demised able enjoy- to B. ; and if C. threatens and begins to make alterations which j^BseVs^pJe-^"^ the Court is satisfied will prevent the comfortable enjoyment of mises. g_'g house, an injunction will be granted (4). (1) Cook V. Bath (Mayor, dc.) L. R. (3) WCurdy v. Noak, 17 L. J. 6 Eq. 177 ; 18 L. T. 123. (N. S.) Ch. 165. (2) Elmhirst v. Spencer, 2 Mac. & G. (4) Falmer v. Paul, 2 L. J. (Ch.") 45. 154. NUISANCE. 117 39. Where certain individuals suffer an injury from a public Part i. Ohapter T nuisance quite distinct from that done to the public at large, the ggcT. 15. ' Court will entertain a bill filed by those individuals to be relieved in^jyiduala from the nuisance ; so held on demurrer to a bill which was filed suffering injury from by the lessee and yearly tenant (coach-master and livery stable public nul- keeper) of a coach-house and stable in Granby Mews to restrain a from that done company from cutting through and stopping up a horse and car- ^evedfiom the riage road leading from the mews, through Granby Street, to the nuisance. Hampstead Koad (1). And a party sustaining special damage from a nuisance may sustain a bill to restrain it without making the Attorney-General a party (2). 40. In Attorney-General v. Forbes (3) the Court granted an Magistrates injunction on an information and bill, upon the ground of public cutting tim- nuisance, to restrain the magistrates of a county from cutting ^^''^ support- the timbers supporting the roadway of a bridge, which timbers bridge. and roadway, at the place proposed to be cut, were within their jurisdiction, but of which the other extremity was within the jurisdiction of a different county. 41. Where an Act of Parliament empowered the Commissioners Erection of of Woods and Forests to make certain new streets, according to a nol wify particular plan therein referred to, and to lease and enter into interference of agreement for leasing the grounds in the lines of the new streets, and under this power leases were granted of two plots of ground, upon which the lessees erected two particular houses, in the line of one of the new streets, and each of the leases described the plot of ground which was demised as being " on the north side of a new street then forming there, called," &c., " and as fronting towards the south on the said new street," and the plan referred to in the Act of Parliament exhibited an open space in front of the sites of these houses; but that plan was not mentioned in either of the leases, and the intended streets were completed, and the space in front of the houses was left open, and the Commis- sioners of Woods and Forests, and the paving committee of the parish, afterwards gave permission to certain persons to erect an equestrian statue of King George III. in the open space, and those persons proceeded to place it upon a part of that open space, but (1) Spencer V. London and Birming- (2) Sampson v. Smith, 8 Sim. 272. ham BaUway Company, 8 Sim. 193. (3) 2 My. & Cr. 123. 118 ^ NUISANCE. Paut I. without interfering with the line of the carriage-way of the new Seot. 15. street in which the houses stood, and the lessees of the houses thereupon filed a bill to restrain the erection of the statue; alleging that upon the treaty for the leases the lessees were shewn the plan of the intended new street, and parts adjacent, by which it appeared that the space in question was to be quite open and free from all obstruction, and that it was upon tlie treaty represented and stated, that opposite the two houses a free passage would be left of certain dimensions, which would be contracted by the erection of the statue, and they also alleged that the proposed erection would diminish the value of their property, and be a public and a private nuisance ; the Court held, that the injuiy and inconvenience, if any, did not constitute such a description of private nuisance as would justify the interference of the Court, and said if the plaintiffs conceived themselves aggrieved, " all the other remedies of the law were open to them " (1). , Injunction re- 42. In Rifon (Earl of) V. Hobart (2), the Court refused an injunc- fiiSLd where . , . i> t • • c i • uncertain tion, at the mstance oi parliamentary commissioners lor cleansing chief wiil™'^ ^^^ improving the river Witham and its navigation and the drainage happen from Qf ^jjg adjacent lands, against the erection or use of a steam-engine, the mtendedj •' ° _ _ _ . . erection of an by parliamentary trustees, for draining a particular district, the draining— un- injunction being applied for on the ground of probable damage to oTmi'diiner'v''' ^^® banks of the river, into which an increased body of water was he extrava- thereby expected to be thrown, and also on the ground of appre- hended injury to the drainage of the lands within the jurisdiction of the commissioners ; the Lord Chancellor (Lord Brougham) observing, that " in the present case, till the event happened, no man could take upon himself to say with confidence, upon such evidence as was there brought forward, whether or not mischief would happen from any given change of machinery, so long at least as that change does not go to a length so- great as to be extravagant, and to which no one supposes the defendants could think of proceeding." Where 43. The Court has jurisdiction by injunction on danger of irre- frrepnraWe Parable injury to property, though as a public nuisance an object injury to pro- of prosecufion by the Attorney-General, the subject in this case (1) Hqnire v. Camphdl, 1 My. &: Cr. (2) 3 My. & K. 169 ; Coop. temp. 450. BroHsli. 333. NUISAKCE. 119 being a corning-house to powder-mills, from site, construction. Part i. &c., eminently dangerous to the neighbourhood and public. The sect. 15. plaintiffs were directed to indict the building as a nuisance, with has iurisdic- an arrangement for a speedy trial, and the concern to be put in tio°' though, . 1 • ■ T 1 • T -1 ■ . as a public such circumstances that it might be carried on without imminent nuisance, an danger in the interval (1). secuLu by"" 44. The jurisdiction by injunction, where the effect will be to gg^^ai'™''^" stop a great trading concern, is exercised with caution, and not ex parte, but on notice (2). 45. In Attorney-General v. Cleaver (3) it was laid down that the No injunction jurisdiction of the Court by injunction on information by the at relation, Attorney-General at the relation of individuals against a nuisance ,",„;"! i/^°e i,* by an offensive and an unwholesome process in trade, was not an offensive .,., .-IT 1- T ••! trade, was exercised without a trial at Law, regulating according to justice the granted with- time of the trial of an indictment in this case depending, and Law"* '^^ removed by certiorari into the King's Bench from the assizes, as against the relators ; but the Court doubted whether, as against the defendants, it had such a power of regulation. In this case the defendant had a soap and black ash manufactory at Battersea, near London, and an information was filed in the name of the •Attorney-General by the neighbours ; the Court refused a motion to suspend this alleged nuisance until a trial at Law ; Lord Chan- cellor Eldon observing, that the question was, what amounted to a nuisance; that some manufactories had been held no nuisance, though they might destroy the whole comfort of life, as a sugar- house, or a brew-house, or the making of bricks, which were so in common parlance only ; and that the Court was very cautious in ' granting injunctions in such cases ex ^parte, but that the Court will abate a nuisance on. the public highway or in a harbour ; all others Otherwise in must be tried by a jury ; and Lord Eldon said, that the Court had pubu" high- no original jurisdiction to enjoin or regulate the proceedings on an T^^"^ j" " indictment; but that circumstances might give that jurisdiction, as where the relators were the persons prosecuting, there the Court had a control by order personally affecting them, but that he doubted if he had the same control over defendants who had not come in. In an anonymous case (4), the Court refused a motion (1) Orowderv. Tinlcler, 19 Ves, 617. (2) Att.-Gen. v. Cleaver, 18 Ves. 217. (3) 18 Yes. 211-220. (4) 2 Ves. Sen. 193. 120 NUISANCE. Part I. for liberty to re-erect a nuisance, and to be quieted in the enjoy- Sect. 15. ment of it until the bearing of the cause ; the Court said that the Bv the general ^t^^ost it could do was to put it in a speedy method of trial, and rule no bill of that the general rule was that you must establish your right at peace before . ri^iit at Law Law before you bring a bill of peace. To^remove a ^^* '^° ^^^® ^ work erected at great expense, whether private work erected or public, removed by this Court as a nuisance, the person com- at great ex- . , i i n . . i i • , peiise, notice plammg should have given notice not to proceed, otherwise the shJuid'imvr*^ Court will leave the complainant to Law (1). been given. 47_ ^ party may so encourage another in the erection of a • nuisance as to give him an equity for an injunction to restrain an action for damages, and a general allegation of such encourage- ment will let in evidence of particular acts of encouragement, and is therefore sufficient statement of the equity to preclude a de- murrer; but Lord Chancellor Cottenham said, that there was no fact (in this case) before him to call for any opinion as to what degree of encouragement, or what circumstances leading to en- couragement, would be sufficient for the purpose of entitling the plaintiff to the interposition of the Court (2). 48. Under the old practice the Court would grant an injunction before an answer for a plain apparent nuisance, on a certificate, affidavit, and notice to the party, his clerk in Court, or his solicitor ; but in a case of a special nuisance the Court expected the party to shew his right, and how he was particularly aggrieved, before the writ could be granted (3). A brewhouse 49. A brewhouse is not necessarily a nuisance, and specific Farily a uuT performance of an agreement to grant a building lease was decreed sance. generally, although the plaintiff had erected a brewhouse on the land injurious to lessor's adjoining property (4). 50. Where a nuisance and purpresture (5) in a harbour are committed, an information in Equity lies to abate them (6). And on an information of the Attorney-General, at the relation of an individual, and a bill by the relator, the Lord Chancellor granted (1) Jones V. Eoyal Canal Company, (5) Co. Litt. 277, from the French 2 Moll. 319. pourpris, an enclosure, v. 4 BL Com. (2) WilHums v. Earl of Jersey, Cr. 167. & P. 91. (G) Att.-Oen. v. Richards, 2 Anstr. (3) Hinde's Chano. Practice, 591. 602. (4) Gorton v. Smart, 1 S. .& S. 68, 66. NUISANCE. 121 an injunction ex ]pa/rte, on affidavits, to restrain a purpresture in tlie Part i. River Thames; and it appearing that there had been no previous sect. 15. writ of ad quod danmum, and that an indictment in the King's j^ nuisance Bench was depending against the defendants for the same act, the ^^^ purpres- Lord Chancellor refused to dissolve the injunction before the trial bour, it is im- of the indictment, notwithstanding there were some affidavits on ^hom the soil the part of defendants stating that the act complained of was ^^jj^l^'^j^g beneficial to the navigation : it was also held, that it was imma- Crown nor a . . _ _ subject can terial to whom the soil belonged, it not being competent either to use it for a the Crown or to a subject to use it for any purpose amounting to amounting to a nuisance (1). a nuisance. 51. "Where a bill stated the plaintiff to be lessee of an ancient Laches by per- mill, and that the defendant had erected flood-gates and other gates, &c., to works on the river which obstructed the plaintiff's mill, and three^ years'^ prayed that the defendant might be decreed to pull down these and no relief , 1 . ■, ^ . , 1 , ■ without first works, and restrained from erecting new ones, such works having establishing been erected and permitted to remain above three years ; the Law!^ ^ Court considered this such a laches as to preclude the party from having relief in Equity without going first to Law and esta- blishing the right there, and allowed a demurrer for want of Equity (2). 52. In Bannister v. Bigges (3) the Court granted an injunction Use of rifle to restrain the further use of a rifle range for ball practice, which stmfueX had been certified by the Secretary of State for War, until it should have been rendered free from danger to the plaintiff, his family, and workmen. 53. Where a local board of health had been restrained by a Board of decree of the Court, at the suit of an individual, from allowing strained^^" sewage to flow into a river after a certain date, and the board did «'l°^™g „ . ° . sewage to flow not stop the sewage, but tried and failed to render it inoffensive, ">*» a river— the Court held, that the board had committed a contempt ofitacon^^™^ Court, and was not excused by the fact that the board was acting eSed'"^''°* in the matter on behalf of the public, and carrving out duties ^^^'^^^ <=arry- .,. p Tt T JO mg out duties imposed on it by Act of Parliament ; and the Court granted an imposed by an order for sequestration for contempt against the board, a public tration ^'^'^*^" body having property vested in it for various purposes, it appearing ^ere^^afpro- (1) Att.-Oen. V. Johnson, 2 Wils. 87. (2) Weller v. Smeaton, 1 Cox, 102. wlachlt"" (3) 34 Bcav. 287 ; 11 Jur. (N. S.) 276. would operate. 122 NUISANCE. Part I. to the Court that there was property on which the sequestration Sect. 15. would operate (1). Interim in- 54. Where persons for their own convenience, and in order to eiantlT to re- '^'"^ ^^ extremely dangerous and inflammable material (damp jute), strain permit- brought it in large quantities upon property in a densely popu- tremely daii- lated neighbourhood, and after protest by the owner of adjoining flammabJe ™" valuable property, Vice-Chancellor Sir W. P. Wood, at his instance, matenai to evidence being; given of the danger of combustion, granted an remam m ° f ° . densely popu- interim injunction to restrain them from permitting the material bomliood— to remain upon the property, and from bringing any more of it by?wn°r™f there, he undertaking forthwith to indict them for the nuisance, adjoiuing g^jj^ ^^ abide by any order as to damages (2). But upon appeal it was agreed that the injunction should be dissolved, the parties undertaking not to bring in any more jute, without prejudice to any question in the suit. The costs and all other matters to be disposed of by the Vice-Chancellor at the hearing. The Court 55. The Court of Chancery will interfere by injunction to restrain restrains a . ,.,. j.j- j-jj.-- nuisance ^ nuisance which IS permanent and serious, and m determining which 13 per- -^Tigther relief ought to be granted regard will be had not only to serious. the comfort and convenience of the occupier of the land for the regard to the time being, but to the prospective effect of the nuisance in diminish- S^f rnui- ^°g the value of the land (3). sance in diminishing value of land. Owner of 56. Where an ancient stream of water, of which a man has a have an in- - right to the use, it flowing upon his estate, is perceptibly polluted by strain°ponu-^" sewage being discharged into such stream or watercourse, and such tion of an sewage prevents such owner using the stream, the owner of the ancient stream o ^ o by sewage, estate may come to the Court of Chancery to restrain the pollu- become a per- tion and stop such discharge before it has become a permanent TOntSuous^ and continuous nuisance, and while the pollution is gradually nuisance increasing by an increased flow of sewage ; and although the fact of prospective nuisance is not in itself a ground for the inter- ference of the Court, yet if some degree of present nuisance exists the Court will take into account its probable continuance and increase ; and, assuming that a prescriptive right could be acquired (1) SpuJces V. Banbury Local Board (3) Qoldsmid v. Tunhridge Wdh o/ i7"eaft/j, 11 Jiir. (N. S.) 1010. Improvement Commissioners, L. E. 1 (2) Hepburn v. LonJan, 2 U. & LI. Eq. 101 ; L. R. 1 Ch. 349 ; 12 Jur. 345 ; 11 Jur. (N. S.) 132, li54. (N. S.) 308 ; 14 VV. 1), 93, 562. NUISANCE. 123 of draining the sewage into the stream to the injury of the plaintiff Pakt I. (as to which the Court of Appeal abstained from giving an opinion), q^^_ 15 " it could only be acquired by the continuance of a perceptible amount of injury for twenty years ; and the evidence in this case was held not f be sufficient to shew this (1). 57. The Court will interfere to restrain excavations which Excavations threaten danger to. adjoining houses, though the actual resulting adjoining damage may be small (2). _ _ ^^net 58. Though there may be cases where the public might lose No laches their right to an injunction by laches (3), this does not apply to a putuo where case of a gradually growing nuisance (4). nuisance grows gradually. 59. The Court will not restrain the erection of buildings which No restraint merely prevent goods displayed in a shop from being seen from which prevent places whence they would previously have been seen (5). goodf ^ ° 60. Where a gas company granted a lease of a piece of ground abutting on the Eegent's Canal at Hackney, with a covenant by the lessee to erect a lime-kiln and keep up a road, and by the lessors to make the road, and, if it should be necessary to remove it (which they had power to do), to make a new one of like materials, and the lessee built the kiln and premises, and the lessors made the road, and in 1865 the lessors (having built two gasometers) proposed to erect a third and enlarge a basin or lay-by, which would render the diversion of the road necessary, but it was pro- posed to reinstate it with a slight curve ; and the lessee filed a bill to restrain the erection of the gasometer and the alteration of the road ; as to the gasometer, on the ground of nuisance and obstruc- tion of the yiew of the plaintiff's premises ; and as to the road, that it was a mere device to alter tli,e road. On an interlocutory motion an injunction as to the gasometer was refused (and at the hearing of the cause the Vice-Chancellor said, that as to the ground that the gasometer would prevent the view mentioned in the suit, it was impossible that that could be a ground for an injunction), but as to the road an injunction was granted on the (1) Ooldsmid v. Tunbridge Wells (3) Att.-Oen. v. Johnson, 2 Wils. 87. Improvement Commissioners, L. E. 1 (4) Att.-Oen. v. Bradford Naviya- Eq. 161 ; L. R. 1 Oh. 349 ; 12 Jur. tion Company, 35 L. J. (Ch.) 019. (N. S.) 308; 14 W. E. 92, 562. (5) Smith v. Owen, 35 L. J. (Ch.) (2) Dentv. Auction Mart Company, 317, 35 L. J. (Gh.) 555. 124 NUISANCE. Pabt I. usual undertaking as to damages ; but the bill was afterwards, at Sect. 15. the hearing of the cause, dismissed with costs, and an inquiry was then asked for as to damages ; however, Vice-Chancellor Sir K. T, Kindersley said that he should be deviating technically from the course of the Court if he were to direct such an inquiry, at the same time dismissing the bill, and that it would be an anomaly ; but the order of dismissal was made without prejudice to any application as to damages (1). The Court 61. A Court of Equity will restrain the members of a highway higiiway board (being the local authority for carrying out the provisions of board from ^^ ^j^g Nuisances Eemoval Acts) from allowing any fresh commnni- communica- cations to be made with a sewer, constructed by their predecessors sewer, which in office, which occasions a nuisance to the inhabitants of the uuisanee to adjoining parish, by draining into a stream flowing through such mhabitants of parish, although, from the limited nature of their powers, no order can be made against the board which will have the effect of com- pelling them to abate the nuisance altogether, by stopping up the sewer, and ceasing to drain into the stream (2). Where a bill was filed to restrain a local board of health from discharging sewage into a river, so as to be a nuisance and injury to the plaintiff, Vice-Chancellor Sir E. Malins, finding that the plaintiff sustained no material injury, and that the nuisance, if any, had been to a great extent abated since the filing of the bill, refused an injunction, and dismissed the bill, but without costs, the plaintiff appearing to have had some justification for instituting the suit. In cases of this class, where important public interests are involved, such as the improvement of the drainage of a town, the Court will protect the private rights of the individual if affected in any material degree, but will at the same time have regard to the nature and extent of the alleged injury or nuisance and to the balance of inconvenience (8). 62. Where the defendant allowed a noxious and offensive refuse- water to flow from his manufactory into an old pit on his own land, but which percolated underground into the plaintiff's colliery, he was restrained by a perpetual injunction (4). (1) Butt V. Imperial Oaslight and (3) Lillywhite v. Trimmer, 36 L. J. Coke Company, 14 W. E. 508. (Ch.) 525. (2) Att.-Oen. v. Bichmond, L. R. 2 (4) Turner v. Mirfidd, 34 Beav. Eq. 306. 390. NUISANCE. 125 63. On a bill to restrain a nuisance, a delay of six months in Paht i. filing the bill, though important on an interlocutory application, seot. 15. " is no bar to relief by injunction at the hearing of the cause (1). 64. The collection of a crowd of noisy and disorderly people, to The collection , . , . , of a crowd of the annoyance of the neighbourhood, outside grounds in wmcn noisy and dig- entertainments with music and fireworks are being given for profit, ™ Jf^^ ^^^ ^ is a nuisance for which the giver of the entertainment is liable to groimda where ° music ana nre- an injunction ; even though he has excluded all improper characters works, is a from the grounds, and the amusements in the grounds have been conducted in an orderly way, to the satisfaction of the police (2), The establishment of national schools on one of several lots of A national . school is not a land is not a nuisance in the legal acceptation of the term, so as nuisance. to entitle the owners of adjoining lots to an injunction ; still, where purchasers of land in lots respectively covenant with the vendor not to allow to be done on their respective lots anything which shall be deemed a nuisance to the occupiers or proprietors for the time being of the adjoining property, the purchasers are entitled to the benefit of, and subject to the restrictions of, such covenant z'w^er se (3). Where a circus, the performances in which were to be carried The noise on for eight weeks, was erected at a distance of 115 yards from the may be a plaintiff's dwelling-house, and the performances, which took place J^^^ance. every evening, lasted from about half-past seven till half-past ten, and the noise of the music and shouting in the circus could be dis- tinctly heard all over the plaintiffs house, and was so loud that it could be heard above the conversation in the dining-room, though the windows and shutters were closed and several persons were talking in the room; the Court held, that this was such a nuisance as a Court of Equity would restrain by injunction (4), and a perpetual injunction was granted to restrain the performances of the circus, on the ground that the performances caused an amount of noise such as to interfere with the ordinary peace and quiet of the dwelling-house. In a similar suit to restrain the erection of an intended circus at the distance of eighty-five yards from a dwelling-house, the bill was dismissed, on the ground that it (1) Turner v. Mirfleld, 34 Beav. (3) Harrison v. Good, 19 W. R.'346. 390. (4) Incltbald v. Robinson, Inchbald (2) Walker v. Brewster, L. E. 5 Eq. v. Barringtm, L. R. 4 Ch. 388 ; 17 W. 25. E. 459 ; 20 L. T. (N. S.) 259. 126 NUISANCE. Pabt I. contained no allegation, and that there was no evidence in the suit Sect. 15. that the performances would, by their noise, cause a nuisance to Mere crowds *^^ plaintiff. The mere assembling of crowds of persons going going to and ^ and coming from the performances at a circus, held in a coming from ° . . i • i /-. a circus, not Covered building, is not necessarily a nuisance which a Court nuisance. ^ ^ of Equity would restrain (1). If the evidence is satisfactory, If evidence the Court will grant an injunction against a nuisance, without Court re- having the question whether there is a nuisance tried before a strains nui- ■ ^r)\ simce without .l^'^J *.^> trying tlie question before a jury. Smoke, noise, g5_ gmoke. Unaccompanied with noise or with noxious vapour, and ortensive _ '■ '■ odours, may noise alone, and offensive odours alone, although not injurious to stitute a nui- health, may severally constitute a nuisance. The material question mn'tCTiai q^ues- ^^ ^^^ ^^^^ cases is, whether the annoyance produced is such as mate- tion is, inter- riallv to interfere with the ordinary comfort of human existence (S). terencewith . ... . ordinary In this case an injunction was granted at the suit of a lessee of two semi-detached houses within the town, but at the outskirts, to restrain the issuing of smoke and effluvia from a factory-chimney, and the making of noise in the factory, although it was situate in a manufacturing town, it being proved that such smoke, elHuvia, and noise, were a material addition to previously existing nuisances. 66. The Court will restrain the continuance of a nuisance wherever substantial damages might be recovered in respect of it by an action (4). For an injunc- 67. A nuisance against which a Court of Equity will grant an tiou the nui- . . ^ . , , , . , . . , sauce must be injunction must be a material injury to property, or to the comfort kijury^Vo- ^^ *^® existence of those who dwell in the neighbourhood ; and perty, or to the where a defendant, having taken lands adjoining the residence, existence. lake, and grounds of the plaintiff, made preparations for burning bricks upon them, and commenced burning one clamp at a distance of 1447 feet from the plaintiff's house, and 422 feet from the lake, upon the margin of which lake was a cottage occupied by a person in the plaintiff's employment, and the plaintiff obtained an inter- locutory injunction, upon which the fire was at once extinguished, (1) Inchhald v. Bohinson, Inchbuld (3) Crump v. Lambert, L. E. 3 Eq. V. Barrington, !>. R. 4 Ch. 388 ; 17 W, 409 ; aflirmed on appeal 17 L. T. (X.S.) 1!. 459; 20 L. T. (N. S.) 259. 133. (2) lb. (4) lb. NUISANCE. 127 and nothing further was ever done, though it was admittedly the Pakt I. OhAI'TFR I defendant's intention to burn bricks ; Lord Justice Eolt held, on seot. 15. appeal from the Master of the Rolls, that the actual facts did not amount to a nuisance ; and that as to future injury there was not sufficient, having regard to the proximity of the clamp, nor to the estimated degree of damage, nor upon the circumstances generally, to warrant an interlocutory injunction (1). 68. "Where the owner of an ancient paper-mill, where the paper had been made from rags, introduced a new Tegetable fibre, and carried on the works upon the same scale for making paper from this new material, and for more than twenty years before this change the refuse arising from the paper manufactory had been discharged into a stream, the Eiver Chess, which ran past the plaintiff's house; the Court, on appeal from a decree of Vice-Chancellor Sir J. Stuart, in effect restraining the defendant from polluting the stream to a greater extent than it had been polluted by the former proprietors of the mills, held that the easement to which he was entitled was to be presumed to be, not a right to pollute the stream by discharging into it the washing produced by the working up of rags, but a right to discharge into it the washing produced by the manufacture of paper in the reasonable and proper course of such manufacture, using any proper materials for the purpose, but not increasing, as against the servient tenement, to any substantial or tangible degree, the amount of pollution, and that the .onus lay on the plaintiffs to prove any increase of pollu- tion ; and the Lord Justice (Lord Cairns) reversed the decree of the Vice-Chancellor on the ground that the plaintiff, on the evi- dence, had not discharged the onus that lay on him, of shewing a greater amount of pollution and injury than during the former working of the mills (2). 69. A nuisance cannot be justified by the existence of other A nuisance nuisances of a similar character, if it can be shewn that the incon- tffleTby^ex'i^t- venience is increased by the nuisance complained of ; and the fact ^^'^^ °'' ""^^"^^ 1 ■ J 1 1 1 1 similar, if the that a stream is louled by others is not a defence to a suit to iuconvenienoe restrain the fouling by one (3). The owner of land on the banks '^ ^'"'''^^^'^'^• (1) LuscomheY.Steer,nL.T.(N.S.) (2) Ba.xendale v. McMurray, L. E. 229 ; 15 W. E. 1191. 2 Ch. 790 ; 16 W. E. 32. (3) Orossley v. Lightowler, L. E. 2 Ch. 478 ; 36 L. J. (Ch). 584. 128 NUISANCE. Part I. Gh AFTER I, Sect. 15. Where there is a prescrip- tive right of fouling a stream, tlie fouling must not be consi- derably en- larged. of a river can maintain a suit to restrain the fouling of the water of the river, without shewing that the fouling is actually injurious to him ; and where C, wishing to prevent the water of a river from being fouled by some dye-works, purchased from the owners of the dye-works a piece of land on the banks of the river without communicating to them his object; the Lord Chancellor (Lord Chelmsford), held, affirming, with variations, the decision of Vice- Chancellor Sir W. P. Wood, that in the absence of any express reservation by the owners of the dye-works of the right of fouling, 0. could maintain a suit to restrain it (1). 70. Where a prescriptive right to foul a stream has been acquired, the fouling must not be considerably enlarged to the prejudice of other people (2). 71. Where, by a public Act passed in the reign of Henry VIII., the corporation of the city of Exeter were empowered to remove obstructions to the navigation of the river Exe, paying compensa- tion to the owners of the soil where the obstructions were situated ; the Master of the EoUs (Lord Eomilly), held, first, that this Act did not confer the conservancy of the river on the corporation ; secondly, that it did not entitle the corporation to file a bill in Equity to restrain the erection of a pier in the river ; and thirdly, that it did not confer any right or privilege on the corporation within the meaning of sect. 14 of the General Pier and Harbour Act, 1861 (24 & 25 Vict. c. 45), so as to prevent the erection of a pier in the river without their consent being obtained (3). 72. A bill and information filed by and at the relation of a millowner, to restrain the local board of health of a town irom discharging sewage into a river, were dismissed with costs, on the ground that the injury proved was trifling (4). 73. In North Staffordshire Railway Company v. Tundall Local Board of Health (5), an injunction granted to restrain a local board of health from draining town sewage into a stream which served as a feeder to the B. canal, and as such vested in the plaintiffs (a railway company) by Act of Parliament to a distance (1) Crossley v. Lightowler, L, R. 2 Ch. 478 ; 36 L. J. (Ch.) 584. (2) lb. (3) Corporation of Exeter v. Earl of Devon, L. R. 10 Eq. 232. (4) Att.-Oen. V. Gee, L. R. 10 Eq. 181. (5) 39 L. J. (Ch.) 131. NUISANCE. 129 of 500 yards from a certain junction. Where a corporation had Part i. erected works so that the sewage of the town iiowed into an seot. 15. ancient brooTr, which passed the mills of a manufactory, and thereby the brook or stream was so far polluted as to affect the health of the workmen and others in the manufactories residing in the neighbourhood of the stream, and also affected the property of the manufacturers ; and the balance of the scientific evidence proving that what had been done by the corporation caused a nuisance, and was injurious to the public health ; the Court held, that the relators Sewage pol- were entitled to an immediate injunction to restrain any further and affecting ' extension of the works by which the pollution of the stream had f^^'e°dJate^-n' been caused (1). The fact that commissioners alter a sewer,' junction. making it of larger capacity and at a lower level, is prima facie evidence that they intend to carry into it sewage not previously drained into the old sewer; and the Court granted an injunction to restrain the defendants from causing any new sewer to open into a river at any point above a place named (2). 74. It is no answer -to a complaint by a manufacturer of a Delicate nuisance to his trade, to say that the injury is felt only by reason manufacture of the delicate nature of the manufacture (3). But the circum- '^''??,J°°' '''^' '■ ' entitle to an stances that the injury done is accidental and occasional only, that injunction— n 1 . nil- .1.1 I'ut if injury is careiul precautions are taken, and that there is no exceptional risk, accidental and such as arises from the storeage of gunpowder or highly inflam- carefta'pie- mable materials, are grounds for refusing; an injunction, and cautions taken ° _ o J ' and no excep- leaving the plaintiff to his remedy by action (4) ; and where a tional risk, no maker of cocoa-nut matting, using chloride of tin in his bleaching liquid, complained of injury to his fabrics by reason of the chloride of tin being discoloured by sulphuretted hydrogen thrown off by the defendant in a manufacturing process carried on upon adjoining premises ; and the evidence shewed that, owing to the defendant's precautions, on three occasions only had an appreciable escape taken place, and then only from accidental defects which were immediately remedied ; Vice-Chancellor Sir W. P. Wood refused an injunction without prejudice to an action (5). (1) Alt-Gen. v. Halifax {Corpora- 18 W. R. 885. tion), 17 W. R. 1088 ; 27 L. T. (N. S.) (3) Cooke v. Forhes, L, R. 5 E.^. 166. 52. (4) lb. (2) Holt V. Mayor, i(-c., of Rochdale, (5) lb. K 130 NUISANCE. Paht I. 75. Although a nuisance be of long standing, yet if the exercise Sect. 15. oi it has been interrupted for twenty years, Vice- Chancellor Sir ^ 7~ W. P. Wood held that the cesser of the right for this period twenty years entitles to Complain of the nuisance by bill (1). of a nuisance _/. -r. • n i • ■ • t • • i • xi t • of long stand- 76. Isrick-burning is a nuisance to persons living withm the limits reftrain. ^^ affected by it, and 240 yards is not an extreme limit, and, there- fore, an injunction to abate such a nuisance will be granted (2). 77. In cases of private nuisance the jurisdiction of Courts of Equity and of Law is often concurrent, though many cases will sustain a legal action which would not justify relief in Equity (3). The established rule on this subject is, that Chancery has power to interpose in behalf of one who is injured by a continuing, per- manent, or recurring private nuisance, unless the injury be such as may be compensated in damages (4). So, when a nuisance is likely to occasion -a special injury to one individual, which cannot well be compensated in damages, Equity will entertain jurisdiction of the case at his suit (.5). 78. It is held in recent American cases that Chancery may grant an injunction against an act threatened which, if committed, would be punishable under the criminal laws as a nuisance (6), ■where the complainant shews that acts about to be done by the defendant, amounting to a public nuisance, will also cause special damage to himself (7) ; as, if they will produce extraordinary injury to his property, irreparable in damages, or without a multitude of suits (8). So, Chancery will restrain a party from doing an act injurious to an individual, or which may be pre- judicial as a public nuisance, pending judicial proceedings before those tribunals, by which the authority to do the act, or its lawful- ness, is to be determined (9). (1) Soberts v. Clarke, 18 L. T. 351 (Amr.) (N. S.) 49. (7) Walker v. Shepardson, 2 His. (2) lb. 384 ; Mississippi, &c. v. Ward, 2 Black. (3) Parker v. Wiunipiseogee, &c. 2 485 ; Zahriskie v. Jersey, (Sec., 2 Beasl. Black. 545 (Amr.) 314 (Amr.) (4) Norris v. Hill, 1 Man. 202 ; (8) Parrish v. Stephens, 1 Oreg. 73 Cla-ck V. White, 2 Sw. 540 ; 1 Gill. & (Amr.) J. 184 (Amr.) (9) WilUamson v. Carnan, 1 Gill. & (5) Milliau V. Sharp, 28 Barb. 228 J. 184 (Amr.); (Hilliard on Injunc. (Amr.) 300, 314, 2nd Ed.) {(S) Tlie People v. St. Louis, 5 Gilm. ( 131 ) Sect. 16. Waste. ^p^™ I- Chapteb I. 1 . The tendency of the authorities upon the subject of injury to The tendency real property is to break down the old distinction that existed "^^j^^^j^^^g_ between waste and trespass. And where a defendant is in pos- tinotions be- . . . . tween waste session of an estate, and a plaintiff claiming possession of it seeks and trespass. to restrain him from cutting down trees, and digging sods, and ?£*g°f^°* " other such like acts, the Court will not interfere, unless the acts Court does not . interfere nn- complained of amount to such flagrant instances of spoliation as to less flagi-ant justify the Court in departing from the general rule ; but where a ^^° '^ plaintiff is in possession, and the person doing the acts complained Plaintiff in ,.. , , j^-iiii possession and of IS an utter stranger, not claiming under colour oi right, then defendant the tendency of the Court, is not to grant an injunction, unless f^unf tion un- there are special circumstances, but to leave the plaintiff to his ^^^^ special '^ _ ^ _ circumstances remedy at Law, though if the acts tend to the destruction of the or destruction. inheritance the Court will grant an injunction ; but where a plain- Plaintiff in .™ . . 1 i i • 1 1 • 1. J possession, tin in possession seeks to restrain one who claims by an adverse defendant title, the tendency of the Court will be to grant an injunction, at °^^™™^+sf least when the acts committed do or may tend to the destruction tendency to 1 • ■ • n grant injunc- of the estate. And where a person, not being in possession oi an tion, at least estate, claimed it as heir-at-law, and entered upon it, cut down fenTto^de™^^ trees, and cut sods, and threatened to repeat his conduct in order str"<=tio°- to establish his alleged title as against the possessor, who, by him- self and his ancestors, had been in possession of the estate for upwards of eighty years; Vice-Chancellor Sir R. T. Kindersley, upon a bill filed by the possessor against the claimant, held, that as the acts of the defendant might be injurious to the inheritance, he must be restrained by injunction from committing them (1). 2. In Davenport v. Daveniport (2) it was held that a party out of possession claiming real estate by title simply adverse to that of the party in possession cannot be heard in a Court of Equity, upon an application to restrain the party in possession from committing acts of trespass productive of irreparable waste, until he has esta- blished his title at Law ; and a demurrer for want of equity, on the ground that in cases of trespass against a party in possession the (1) Lotmdes v. Settle, 33 L. J. (Ch.) 399 ; 10 L. T. (N. S.) 55. 451 ; 10 Jur. (N. S.) 226 ; 12 W. R. (2) 7 Hare, 217. K 2 132 WASTE. Part I. Court refuses to act until the right is estaUished at Law, was Sect. 16. ' allowed, with costs, to the bill of a plaintiff alleging that, under a ~ settlement thereby stated, he was entitled to an estate of which the defendant was in possession, and had befn so for nineteen years, that the plaintiff had not discovered his title until a very recent period, and that he had since brought an ejectment against the defendant to recover the premises, which action stood for trial at the next assizes, and praying an injunction to restrain the defendant from cutting down and selling ornamental and other timber of great value, and thereby occasioning irreparable injury to the estate, which the bill charged that the defendant threatened and intended to do. Vice-Chancellor Sir J. L. Knight Bruce, in Haigh v. Jagger (1), refused an injunction to restrain a party claiming by an adverse legal title from committing acts of trespass (breaking into and entering upon a bed of coal) alleged to be pro- ductive of irreparable waste, under the special circumstances of the case ; but tlie Vice-Chancellor said that he was not, however, convinced that where a man is in possession, however full and com- plete, of an estate by a title simply and merely adverse to that of another, by whom the estate is, whether at Law or in Equity, claimed against him, without any privity between them, such a state of things, if the party in possession, by his answer, whether truly or untruly, swears his title to be just and valid, or that of his adver- sary to be unjust and invalid, does, of necessity, prevent a Court of Equity from interfering (before any judgment at Law or decree in Equity) to restrain the party in possession from stripping the estate of its timber, pulling down the mansion-house upon it, or other such acts. In Norway v. Bowe (2) an injunction was granted to stay waste against a defendant, who insisted ou his own title, but admitted he received possession from the plaintiff's tenant without the plaintiff's knowledge, in breach of the tenant's duty. But in Pillsworih v. Sojtton (3) Lord Chancellor Eldon refused an injunc- tion to stay waste against a defendant in possession claiming by an adverse title, the tenants having attorned, the plaintiff having failed in ejectment (but, as the bill alleged, not on the merits), and both plaintiff and defendant setting up pretences of title. In (1) 2 0oll. 231. (2) 19 Ves. 154. (3) G Vcs. 51. WASTE. 133 Courthope v. Mapplesden (1) the Court, on a motion by a landlord, Part I. granted an injunction against a trespasser cutting timber by collu- seot. 16.' sion with tenant, but without prejudice to the case of a mere tres- pass. In Smith v. Gollyer (2) the Court refused an injunction on behalf of plaintiffs, who, by their guardian, were in receipt of the rents, against the defendant, claiming as heir, and insisting the will was not well executed, cutting timber, the title being disputed as between devisee and heir-at-law ; Lord Chancellor Eldon saying that it was quite a new case, and that it was not a case of waste, but trespass. In Mortimer v. Gotierell (3) the Court refused to interfere, by way of injunction, to stay waste, on the ground that the defendant was a mere stranger guilty of forcible entry, and might be turned out of possession immediately. 3. It is a question of degree, to be established by evidence. It is a ques- whether the working of a dormant or abandoned mine by a tenant whether vfork- for life is waste or not: and, semhie, that a mine, the working of '"c^'*,'^"""'*"* _ ' ' & "* mine by which had been discontinued for twenty or thirty years in conse- tenant for life, „ ., , 1 . 1 . . . 1 „ , is waste. quence ot its not havmg been remunerative, might after that time be worked by a succeeding tenant for life ; but a mine, the working of wliich has been abandoned by the owner of the inheritance for the advantage of the property, cannot be worked by a succeeding tenant for life (4). 4. Deer in a park, when reclaimed, are personal chattels, and The Court cease to be parcel of the inheritance, and the Court will not inter- ^iain waste fere to restrain waste in not keeping up the herd; and therefore ^^^°\^^^v™s ^ ^ -*■ ' ' up a nerd of in a suit by incumbrancers of a tenant for life of a deer park and leoiaimed other property, an application by remaindermen to prevent the receiver from letting the park except as a deer park, and with proper covenants for preserving the deer, was refused (5) ; and' in this case the Court stated the evidence upon which deer in a park will be considered tame (6). To break up a rabbit warren, unless Broaking up it be a warren by charter or prescription, is not waste at Common reiTnot waste, Law, and the Court will not grant an injunction to prevent it (7) ; T'^'f °°® ^^ sed qusere, if the warren be demised as such (8). scription. (1) 10 Yes. 290. (.5) Ford v. Tynte, 2 J. & H. 150; (2) 8 Ves. 89. 31 L. J. (Ch.) 177. (3) 2 Cox, 205. (6) lb. (4) Bagot v. Bagot, Legge v. Legge, (7) LurtingY. Cmn,l Ir.Ch. R. 273. 32 Beav. 509 ; 9 L. T. (N. S.) 217. (8) lb. 134 WASTE. Part I, 5. Where a lessee, bound by covenant not to commit waste, has Sect. 16. committed acts of waste, for which damages merely nominal would „~. ~: .. be given, the Court of Chancery will not entertain a suit against against lessee him founded on those acts of waste, where it appears that he does covenanting . . „ , not to commit not contemplate committing any further waste, nor assert a right damagrnomi- ^^ Commit it ; and a tenant by replying to a letter charging him nal— where ^j^]^ ^jjg commission of waste, and requiring him to make compen- not contem- ' id 1 plating fur- sation for it, " that he is prepared to defend any action which may nor asserting be brought against him, and to shew that, so far from having com- "^ mitted injury, he has materially improved the premises demised to hira," does not assert a right to commit the waste complained of(l). Equitable 6. The doctrine of equitable waste applies equally to all cases of to all cases of estates limited to go in a course of succession, whether that object in'suroession ^^ effected by creating life interests or estates in fee with executory devises over ; but qusere, whether a tenant in fee simple, subject to an executory devise over, can, in the absence of any indication of a contrary intention, be restrained from committing legal waste ; but, under a devise of a mansion-house and the estate with the appurtenances to A. in fee, subject to an executory devise over in the event of his dying without leaving issue to B. for life sans waste, remainder to C. in fee, the Lord Chancellor held (afiBrming the decision of Vice-Chancellor Sir W. P. Wood), that A. was entitled to commit legal waste, but not entitled to commit equit- able waste by cutting down timber standing for ornament or shelter with reference to the mansion-house, nor by cutting down imma- ture trees or unripe timber. The Yice-Chancellor, in his judg- ment, said that the testator (in this case) had created a tenancy in fee, with an executory devise over, and also a tenancy for life sans waste, and that there was no intention intimated to give to the tenant in fee any larger rights in respect of timber than to the tenant for life ; that at Law their rights would be the same, and there was no reason to be derived from any intention discoverable in the will why they should not be identical in Equity (2). Equitable 7, Equitable waste is that which a prudent man would not do waste IS '■ (1) Doran v. Carroll, 11 Ir.Ch. Rep. Jur. (N. S.) 647 ; 29 L. J. (Ch.) 470; 379. S W. R. 387 ; C Jiuv (N. S.) 809 ; 29 (2) Turner v. Wright, Job. 740 ; 6 L. J. (Ch.) 598 ; 8 W. K. 675. WASTE. 135 in the management of his own property: per Lord Chancellor Part I. OhAFTIjB I Campbell (1). The Court will not maintain a,n injunction against sect. 16, ' equitable waste, unless it be proved that equitable waste has been ^at a pm- committed, or is threatened (2). _ _ wouirnotdo. 8. Where a tenant for life under a settlement without impeach- No injunction ment of waste, for valuable consideration had assigned to the trus- abie'waate"' ' tees of the settlement "all and singular the timber and timber- ™|.^^^°™" like trees then growing and being, and which might thereafter threatened. grow and be, upon" the settled estate, the Court held, this in- cluded the " thinnings " of the woods, and that it rested solely with the trustees to determine what thinnings should be made, and at what time (3). 9. The Court will restrain a purchaser of an estate who has "Waste by pur- obtained possession under his contract from doing any acts of strained, waste and destruction (4). 10. The Court will, at the instance of a person merely alleging The Court, a legal title to realty, grant an injunction to restrain persons in ^o^^f igiti possession of an estate from committing malicious and destructive ''*.'^' restrains waste (5) ; but such a case must be clearly made out, and a mere malicious general allegation that the tenant has cut down a considerable sons in posses- quantity of timber, some of which was of an ornamental character, ^'™' and other portions of which were unripe for cutting, is insuf- ficient (6) ; tlie authorities as to the jurisdiction of the Court to interfere at the instance of parties claiming real property under a legal title, by appointing a receiver of the rents and profits and by injunction to restrain waste, establish these propositions — First : In the absence of fraud, and where there is no privity between the in absence ot parties, the Court will not interfere, at the instance of a person being no pri- se claiming, to grant a receiver against parties in possession, ^fjn'w^'t Secondly : Nor will it interfere, at the like instance, to restrain ^^^ instance of . . party claim- waste, except malicious or destructive waste ; e.g., by pulling down ing under a the capital messuage, stripping the estate of its timber, or other strain a p^^ty in possessiiin (1) Turner v. Wright, Joh. 740 ; 6 (4) Orochford v. Alexander, 15 Ves. committing Jur. (N. S.) 647 ; 29 L. J. (Ch.) 470 ; 138 ; Marshall v. Watson, 25 Bear. 501. ""'aste, except 8 W. R. 387 ; 6 Jur. (N. S.) 809 ; 29 (5) Tallot {Earl) v. Scoit, 4 K. & J. destructive"' L. J. (Cli.) 598 ; 8 W. R. 675. 96 ; 4 Jur. (N. S.) 1172 ; 27 L. J. (Ch.) (2) Potts V. Potts, 3 L. J. (Ch.) 176. 273. (3) Qwdon V. Woodford, 6 Jur. (N. (6) lb. S.) 59. 136 WASTE. Part I. like acts which no owner would do, or which would destroy the Chapter I * Sect. 16. property before they could be arrested at law. Thirdly : But fla- Flagrant acts S^^^'^ ^"ts of this exceptional character would, at the present day, ofamalioioua jjg restrained, and that before iudgment at Law: and notwith- or destructive _ _ . . . character are, standing plaintiff Were out of possession, and his title denied on restrained, ' oath by the defendant. In this case the bill alleged that the iudgmenrat pla^intiff was Earl of Shrewsbury, and entitled as such to real La\y, and estates inalienably annexed to the Earldom by Act of Parliament, plaintiff out of . . •' "^ possession and his title as to part called the " settled estates " being legal, and as denied. to the rest, Called the " unsettled estates," being equitable ; that his claim to the Earldom had been heard in the House of Lords, before a committee of privileges, who had already expressed a strong opinion (although they had not actually decided) in his favour; that the defendants, claiming under a will of the late Earl, " by favour of some of the tenants " had entered into receipt of the rents of the settled estates to an amount exceeding £25,000 a year; and that they had cut down considerable quantities of timber on the estates generally, some of an ornamental character and some not ripe for cutting, and charged that many of the tenants of the settled estates, by reason of the conflicting claims to the Earldom, had refused to pay their rents to the plaintiff or defendants, by reason whereof rents exceeding £5000 a year were in danger of being lost; and prayed that, pending the plaintiffs proceedings to establish his claim to the Earldom, and his pro- ceedings by ejectment, which he offered to bring when that claim was established, a receiver might be appointed^ and the defendants Restrained from cutting timber on the estate. A demurrer was allowed to so much of the bill as sought relief in respect of the settled estates, the Court being of opinion that the amount at stake did not affect the question ; that the unpaid rents need not be lost, since, if an action were brought, they could be paid either to the plaintiff or into Court upon interpleader, and that the waste alleged was not such as to justify interference ; and to so much of the bill as sought relief in respect of the unsettled estates, a plea that the plaintiff was not Earl of Shrewsbury was allowed (1). Defendant in 11. In NeaJe v. Crimps (2.), Vice-Chancellor Sir W. P. Wood, (1) Talhot {Earl) v. Scott, 4 K. & J. 96 ; 4 Jur. (N. S.) 1172 ; 27 L. J. (Ch.) 273. (2) 4 K. & J. 472. WASTE. 137 having granted an interim injunction, with leave to serve a notice Paet I. of motion for an injunction, upon such notice being served, and sbot. 16. the defendants not appearing, granted an injunction to restrain, possession re-~ until the hearing or further order, a defendant in possession from strained ciit- . . . . . ''™g 3.nd re- cutting down any timber or timber-like trees standing or growing moving timber on the estate, and from removing or disposing of such as might plaintiff already be cut, upon a motion by a plaintiff claiming under a title at'^Law^vhi!.'^ at Law, and who had commenced an action of ejectment in respect ^'^^ '^^- . J J. menced eject- 01 tlie premises. ment. 12. "Where a testator had left his mansion-house on the B. Timber to be estate, and had gone to reside on another estate at the distance of as°o'be°enti-^° about eight miles, and had pulled down tlie B. mansion-house, cut Ji®'^ *° pioteo- , '■1°'^ against down some of the ornamental timber about it, turned the estate equitable into a cover for game, and altogether had acted so as to shew that be connected he had no intention that the mansion-house should be rebuilt; the Tint t"o are-" Lords Justices (reversing a decision of Vice-Ohancellor Sir W. P. ^idence. Wood), held, that the rest of what had originally been ornamental timber on the B. estate was not, as between the parties claiming under the will, protected as ornamental, but might be cut by a tenant for life in possession whose estate was without impeachment of waste, except as to buildings ; and also holding that timber, to be ornamental, so as to entitle it to the protection of the Court against equitable waste, must be connected with or adjacent to a residence ; and in this case the testator, when he did the above acts, being only tenant for life in possession, with an ultimate reversion to himself in fee expectant on the failure or determina- tion of a subsequent estate for life, and raising estates tail which did not fall and determine till after his death, the Lords Justices held, that, as between the parties claiming under his will, the case stood on the same footing as if he had been entitled in fee simple in possession (I). In this case, A., as devisee of the testator, being tenant for life without impeachment of waste « other than and except voluntary waste in pulling down houses or buildings, and not rebuilding the same, or others of equal or greater value," with remainder to his first and other sons successively, with remainders over, and being in possession, pulled down the mansion-house on (1) MicMetlmait v. Mickhtlmait, 1 De G. & J. 504 ; 3 Jur. (N. S.) 1279 • 26 L. J. (Ch.) 721 ; 3 Jur. (N. S.) 765. 138 WASTE. Part I. the estate ; whereupon B., the next tenant for life in remainder, Sect. 16. filed a bill against A., praying that he might be decreed to com- plete a suitable mansion, and to give a sufficient security for that purpose ; and A. having, by his counsel, undertaken to erect on the estate a substantial mansion-house, exceeding or at least equal in value to the mansion-house demolished ; the Court directed the cause to stand over, with liberty to apply, it appearing that A. intended to erect a suitable mansion-house, and that there had been no delay on his part in carrying out his intention, but that the person entitled to the next vested remainder was not entitled to have a receiver of the rents appointed in order to secure the rebuilding of the mansion (1). No interfer- 13. A Court of Equity will not interfere unless it is shewn that GHC6 imlpfis danger from there is danger from the mode in which a tenant for life in posses- tenant for life ^^^^ ^^ dealing with the property ; and the mere fact of a tenant deals with the foj. ]ife keeping on hand for about three months part of the corpus property — i o ... Keeping part for the alleged purpose of an eligible investment does not amount hand about ^o Waste, nor is it in derogation of the rights of those entitled in t^tXZ^:^'' ^^^^^^on {2). Tenant for 14. A tenant for life sans waste will not be interfered with in J. 1X6 S£LI19 Sac not interfered the cxercise of his legal powers, unless he is proceeding to use dse of^is^™" t^ose legal powers in a manner inequitable towards those in legal powers, remainder ; and therefore he may fell and sell trees planted for unless acting _ _ •' ^ inequitably to Ornament, if done in a proper course of husbandry (3). men. 15. Where an owner of an estate, with residence, had purchased No inference adjoining lands with ornamental woods, the Court would not, from ornament, uu- that fact alone, infer that he intended to be left standing for orna- dedicrtion. °^ "^^"* ^^^ ^^^^ t^^^s as he did not in his lifetime cut downj there must be some act of dedication, e.g., planting an avenue, cutting a vista, erecting obelisks, &c. ; and a tree or trees may be highly ornamental, and yet not be entitled to the protection of the Court Saplings and as being planted or left standing for ornament ; and saplings are not hedge-row -.i • .i j , ■ , , i: o trees, not Within the Qoctrme ; nor are hedge-row trees, or any trees, however doctrhie.*"^ ornamental, if not planted also for profit, within the doctrine (4). (1) Micldethwait v. MicMdhwait, 1 (li) Dutt v. Dossee, 6Moo.Iiid. App. De G. & J. 504 ; 3 Jur. (N. S.) 1279 ; 433. 26 L. J. (Oh.) 721 ; 3 Jur. (N. S.) (3) HalUwell v. Philips, 4 Jur. 607. 765. (4) lb. WASTE. 139 16. Where A. had, on his marriage, settled his estate on himself Part I. ' ° Chaptek I. for life " without impeachment of or for any manner of waste, save Sect. 16. and except spoil or destruction, or voluntary or permissive waste, or suffering houses and buildings to go to decay, and in not repair- ing the same," the Master of the Rolls held, that his assignee was entitled to cut all such timber not planted or left for ornament, as the owner of the estate in fee simple, having due regard to his present interest and to the permanent advantage of his estate, might properly cut, in a due course of management (1). ] 7. It is laid down by Vice-Ohancellor Sir W. P. Wood, in No interfer- Powys v. Blagrme (2), that Courts of Equity have no means of ^f permissive interfering in cases of permissive waste by a tenant for life of real "g^^jj^j^f^,. ^f^ property ; and that there is no implied trust to keep the property no implied in repair imposed upon a tenant for life under a will ; for if there ^™gg J.°j. jjjg were, he could not convey away his life estate without committing *° J^^^P P"^"" a breach of trust ; nor if he did, could he get rid of the trust by repair, so doing ; and that a trustee to whom real property is devised in Trustee can- trust for one for life cannot interfere with the possession of the ^iit posses- equitable tenant for life because he neglects to keep the property i'i'e\enan"for' in repair ; and that, therefore, such a trustee is not liable to the life. remainderman for the neglect of the tenant for life to repair ; but if tenant for if the tenant for life is committing active waste it seems that the artive wTste trustee may, and properly ought to, interfere — at least, if the per- se^^'e trustee sons entitled in remainder are under disability. And the Court of interfere. Appeal also held that a Court of Equity would not interfere, at the instance of a remainderman, in cases of permissive waste, either by injunction or to give satisfaction against an equitable tenant for life in possession (3). In this case the testator, by his will, directed his trustees, after payment of the expenses of keeping his estates in repair, and all such costs as " my said trustees shall expend or be put unto by means of the trusts hereby reposed on them " to pay out of the overplus, rents, and profits, certain sums, and after payment thereof to pay the rents to A. and B. successively for life, with remainder to trustees to preserve, with remainder to the iirst and other sons of B. successively in remainder, and the several heirs (1) Vincent v. Spicer, 22 Beav. 380 ; (3) Powys v. Blagrave, 4 De G. M. 2 Jur. (N. S.) 654 ; 25 L. J. (Ch.) 589. & G. 448 ; 24 L. J. (Ch.) 142. (2) 1 Kay, 495 ; 18 Jur. 462. 140 WASTE. Paet I. male of tlie bodies of such sons ; on a bill filed by the trustees, Sect. 16. ^^ ^^^ instance of one of the remaindermen in tail, against the second tenant for life, for the purpose of making him accountable for permissive waste, the Court of Appeal (affirming the decision of Vice-Chancellor Sir W. P. Wood dismissing the bill) held, that the costs of the trustees, whose bill was dismissed, ought to be paid out of the corpus, and not out of the rents and profits of the estate (1). But in Caldwell v. Baylis (2) an injunction was granted against per- missive waste by a tenant for life, i.e., " against permitting or sufier- ing any further or other waste until answer or further order," upon Devisee for life an affidavit shewing the defendant to be devisee for life, "keeping ill repaiiV' re- the buildings in tenantable repair," with an ultimate devise, which m ttkig per^' ^°°^ effect, to the plaintiffs as tenants in common, and shewing missive waste. ^^^A, the defendant had permitted the premises to grow ruinous for Devisee for want of repairs ; and where a devise to A. and her heirs for ever, tmstei^fsfo" " '^^ t^e fullest Confidence that after her decease she will devise the remainder ^q property to my family," was declared to be an estate for life strainer! cut- by a decree at the Rolls, and a trust as to the remainder in fee for the plaintiff, the devisee was enjoined from cutting timber pending an appeal (3). Trustees will 18. Trustees in whom an estate is vested ought not to cut down cnttin/Tfiown Ornamental trees alleged to be prejudicial without first applying ornamental ^q \)^q parties beneficially interested for their assent, or to the trees, unless . . they are pre- Court for its authority, and the onus of shewing that the trees are should obtain prejudicial lies on the trustees ; and a perpetual injunction was benefi^ciaries* granted against trustees who had cut down tliree ornamental trees or authority of and had failed in proving to the satisfaction of the Court that Court. . . ; they were prejudicial to the residence ; the Court at the same time observing that there was nothing like wanton destruction on the part of the trustees, and that they had acted hond fide, and the bill, being filed by a beneficiary against trustees and a tenant to whom the trustees had let the estate (a mansion and land) to prevent equitable waste, was dismissed with costs as against the tenant, it not being shewn that he had committed, or intended to commit, any waste, though some had been committed by the (1) Powys V. Blagrave, 4 De G. M. (3) ]yriyU v. AU-yns, 1 V. & B. 313 ; & G. 448 ; 24 L. J. (Ch.) 142. see also 19 Yes. 'JOO; 17 Ves. 255 ; (2) 2 Mer. 408. Coop. Ill ; 'J'. & 1!. 143. WASTE. 141 trustees at his request, pending the treaty between them for the Part i. letting of the premises, but of which he refused to become tenant sect. 16. ' unless the trees were cut (1). 19. "Where a rector during four years had cut down a large number of timber trees, more than sufficient to be applied for the purposes of the repairs of the rectory buildings, and in 1851, when no timber was necessary for the repairs, had cut down other timber trees, and of these trees part were supplied for the re- pairs, others were sold to a carpenter, who employed other tim- ber more suitable for repairs, and other parts were sold at auction, in lots, and some few trees were not accounted for ; but the rector had expended on the rectory buildings, and on farm improvements, beyond the produce of the sales of timber, the sum of £150, besides a considerable outlay in underdraining ; on a bill filed by the A rector will patron against the rector, Vice-Chancellor Sir James Parker ^'ji^ng^mber, granted an injunction restraining the rector from felling timber on ^^^^p* ^'°^ llGCcSS£tI'y the rectory lands, save only for necessary repairs (2) ; but if the repairs. timber had been cut and sold merely for the purpose of providing other timber more suitable for repairs, the Court would not have interfered upon this, an interlocutory motion for an injunction (3) ; but at Common Law the parson, with the consent of the patron At Common and ordinary, may cut timber and open mines ; and this Court ^^'^ ^^'^ ■,, ■^ •> J- ' parson, ■with would have no difficulty, on a proper application, in directing <;onsent of .• 1 , , , -I ,-, 1 , , , patron and timber to be cut, and the purchase-money to be apphed for the ordinary, may benefit of the living ; but a rector has no more extensive privileges, q"* *^,'"'^."' .„ nor is there any principle of Law by which a rector can obtain ^^ecessary,' , . . ., , , ,1 •,. direct timber more extensive privileges, as to waste than an ordinary tenant for to be cut. life (4). However, in Holden v. Weehes (5) it is queried bv Vice- ^^^tor has not _^ \ / T. J more privi- Chancellor Sir W. P. Wood, whether an incumbent, with the con- leges as to sent of the patron and ordinary, can open mines under the glebe, tluant foTlife. 20. The patron is the proper person to institute a suit for Q"*™. whe- tiie purpose ot restraining waste by the incumbent, but the consent of patron coming to the Court to restrain waste is not entitled to an uKiinary^he account (6). <="" "P*^" mines. (1) Camplc-n v. AUgood, 17 Beav. 623. (3) lb. (2) Duhe of Marlborough v. St. John, 5 (4). lb. De G. & Sm. 174. (5) 6 Jur. (N. S.) 1288. (6) lb. 142 WASTE, Part I. 21. Vice-Chancellor Sir G. J. Turner, in Marker v. Marker (1), Sect. 16. intimated that it was his opinion that the Court might more Bestriotion on legal power connected with a trust more readily enforced, semhle. taste or orna- ment, senible. readily act in enforciug a restriction on the exercise of the legal power in a matter of taste or ornament, where the restriction was connected with a trust, than in the case of equitable waste in the absence of any such trust; and that the case of a trust or restriction created for the preservation of ornamental timber was not like a trust for purposes of benevolence (as to which the objects are unlimited, and no standard can be found), but was a trust or Court will exe- restriction which the Court will endeavour to execute or enforce; moneyfor° ^^^ *^^* there Were cases in which the Court might execute a trust for the application of money to the purposes of taste or orna- ment, and in doing so might, in the absence of any prescribed stand- ard, or if the standard were more or less indefinite, act upon the opinions of persons who were consulted by others in such matters, as it acts in other cases upon the opinions of persons of science (2). 22. The Court by applying the doctrine of equitable waste, con- trols and restrains the excessive use of the legal power incident to an estate impeachable of waste, but with reference only to the presumed 1 excessive ^]]\ gj^^ intention of- the party by whom the power was created (3). power incident to an estate, sans, &c. 23. In the preservation of ornamental timber the protection of the Court is confined to timber planted and left standing for shelter or ornament, and the question, whether the protection should be extended to particular timber is, therefore, one of fact, and the determination must depend upon the evidence which can be col- lected to establish the fact (4). 24. Where a tenant for life without impeachment of waste had sold a quantity of timber ti-ees, which Vice-Chancellor Sir G. J. Turner afterwards restrained him from felling, on the supposition that it would be equitable waste, the Vice-Chancellor held that the purchasers of the timber were not necessary parties to the injunction suit, but required the plaintiff to give security to the defendant, not only for the value of all the trees which the defen- dant should be prevented from cutting by the injunction, but also for any loss or damage the defendant might incur or sustain by reason of his being prevented from completing the sale (5). (1) 9 Hare, 1, 18 ; 15 Jur. fi63 ; 20 L. J. (Ch.) 246. (2) lb. (3) lb. (4) lb. (5) lb. Tlie applica- tion of tlje doctrine of equitable waste, con- trols excessive use po'n In the pre- servation of ornamental timber, that planted and left standing for shelter or ornament is alone pro- tected. WASTE. 143 25. Where a plaintiff, by virtue of a grant from the Crown PartI. made 36 Hen. 8, claimed, as lord of the manor of C, to be entitled ggoT. le. " to the beach or shore of the sea between high and low water mark, and the defendants, the surveyors of highways, had taken the stones to mend the highway of the parish ; and upon a bill filed by the plaintiff against them the defendants put in their answer denying the right claimed by the plaintiff, and insisting upon their right to take the stones by custom, and also by prescription, and also under the Highways Act, 5 & 6 Will. 4, c. 50 ; upon a motion to dissolve an injunction obtained by the plaintiff, the Court held, that the rights claimed by the plaintiff were legal, and must be decided by an action, that the Court must consider which of the two parties was likely to sustain most injury, and that, notwithstanding the want of distinct evidence respecting injury, the Court, to prevent a possible mischief by alleged irreparable injury, would grant an injunction to restrain the taking the stones, considering that the plaintiff was most likely to suffer by its non- interference ; and although the plaintiff's title was purely legal, and not clearly made out, it refused to put him on terms of bringing an action to try it, but merely gave him liberty to do so (1). 26. Where, after a railway company had purchased a piece of land from A., who was mentioned in the book of reference to be its owner, B. a neighbouring landowner, part of whose land the com- pany had also taken, claimed to be the owner, and filed a bill for an injunction to restrain the company from continuing in possession of it and from committing waste on it ; the Court refused with costs a motion for an injunction, on the ground that it was a mere case of adverse title claimed by the plaintiff, upon very slight evidence indeed, and without alleging that an action of ejectment or an action of trespass would not give all the remedy he could possibly be entitled to or wish for (2). 27. Where, in a suit by the lord of the manor against a tenant of lands within the manor to restrain the defendant from taking stone from lands in his occupation, the defendant, by his answer, alleged that it was and had been a common practice in the manor (1) Clowes V. Becle, 13 Beav. 347; way Company, 1 Sim. (N. S.) 272; 6 20 L. J. (N. S.) (Ch.) 505. Eail. Ca. 698. (2) Webster v. Boutli Eastern Bail- 144 WASTE. Pabt I. to remove the stone which lay immediately under the surface for Sect. 16. ' the benefit of cultivation, the Court, at the hearing, made a decree for a perpetual injunction, the defendant declining to try his right to take the stone in an action at law, to be brought against him by the plaintiff (1). 28. Where a possessory bill was filed in Ireland to restrain the defendant from cutting turf for sale, on the allegation that he was tenant to the plaintiff of land adjoining the bog, with a limited permission to cut turf for use in the bog, which plaintiff claimed as his own ; on the affidavits shewing cause the tenancy of the land was admitted, but it appeared that the defendant and his predecessors had long claimed the disputed right over the bog, the plaintiff's title to which was vaguely stated ; and in 1807 an injunction had been obtained in a similar suit, restraining the tenant from cutting turf at all ; the Court held, that an injunction could not be obtained in this suit, as, if the tenant was a mere trespasser, it was not sustainable to establish a disputed right, there being no triennial possession, and the allegation of a limited permission could not be strengthened by the order of 1807, which set up a different claim (2). 29. Where, by an indenture of settlement, certain estates, con- sisting of a mansion-house and other premises, were limited to the use of trustees for a term of 1000 years without impeachment of waste, save only the cutting of ornamental timber, and subject to the said term to the use of the settlor for life without impeach- ment of waste, save as aforesaid, with divers limitations over ; and the trusts of the term were, iu the first place, by cutting and felling, and selling and converting into money all or any part or parts of the timber standing and growing on the said lands, which should be of full and ripe growth, and not ornamental to the mansion or pleasure-grounds attached thereto, or any of the views or prospects of the same, of which timber it was declared that enough of the most ornamental should always remain to preserve the beauty of the place unimpaired ; or by demising, mortgaging, or selling the premises comprised in the said term, or any part or (1) Guddon v. Morley,! Hare, 202; (2) ConglHon v. Mitchell, 12 Ir. Eq. affirmed by the Lord Chancellor, Nov. Rep. 34. 24th, 1849. WASTE. 145 parts thereof, save and except the mansion-house and certain other Pa-ri I. premises therein mentioned, or hy all or any of the said ways and sect. 16. ' means, to levy and raise the sum of £10,000 for the settlor ; and after the death of the settlor in like manner to levy and raise two sums of £10,000 each for other parties ; the Court held, upon the equitable construction of the trusts of the term, that the trustees had a discretionary power to enter on the estates, and cut fit and proper timber, and apply the proceeds in discharge of the sums directed to be raised, and that the Court would protect them in the exercise of that power, there being an absence of all mala fides, or of any wanton or unreasonable exercise of their discretion (1) ; and an injunction was granted, at the suit of the trustees, re- Tenant for straining the tenant for life in possession from cutting the timber interfering on the estates, on the ground that his doing so would interfere ^r^etionarv"^" with the discretionary power vested in the trustees ; and though power (here) ■ . , . „ . ol the trustees exemption from liability to waste annexed to a life estate is a to cut timber. special power in the tenant for life to appropriate part of the inheritance, yet it was held that it was by the terms of the settle- ment made subordinate to the discretionary power conferred on the trustees (2). 30. Where there were limitations of estates to successive tenants for life, with remainders in tail, subject to a term vested in trustees, the trusts of which were, in the first place, by cutting and selling timber of full growth then standing on the lands, or by demising, mortgaging, or selling the premises comprised in the term (except the mansion-house), for all or any part of the term, or by all or any of the said ways, or any other reasonable way, to raise £30,000, and pay the same to the parties therein mentioned ; the trustees of the term being about to raise the whole of the charges by sale or mortgage of the premises comprised in the term, the parties beneficially interested in remainder in the estates filed their bill to restrain them from so doing till they had first applied the whole of the ripe timber upon the estates in reduction of the sums charged ; to this bill demurrers were put in by the tenant for life of the premises, and by the trustees of the term, and the demur- rers were allowed, the Court holding that the mode proposed by the trustees was the proper mode of raising the charge in question ; (1) Kehewich v. Marker, 3 Mac. & G. 311. (2) lb. 146 WASTE. Part I. for as between the tenants for life not impeachable for waste and Sect. 16. the remaindermen, the corjpus of the estate must bear the charge, and that the interest of the charge must be paid by the tenant for life in possession, who in the meantime was entitled (as part of the profits of the estate) to the timber, which, as such tenant for life, he had a right to cut ; but the trustees of the term in such a case have not an unlimited discretion to raise the charge in such a manner as they may think fit ; and it does not follow that because their discretion in the mode of raising the charge has been honestly exercised, the charge will be left to be finally borne by those parties upon whom their act might chance to throw it (1). 31. "Where by indenture of settlement, dated in 1832, certain real estates were vested in trustees in fee, upon trust to keep down the interest on the incumbrances affecting tbe estates out of the rents, and by mortgages and sales to raise moneys towards the discharge of the principal, and subject thereto upon trust for the Earl of 0. for life, with remainder in trust for his son. Lord H., for life without impeachment of waste, but subject to the power thereinafter given to the tmstees to feU timber, with remainder in trust for the first and other sons of Lord H. in tail male, with remainder in trust for the heirs and assigns of the Earl in fee; and power was then given to the trustees, at any time or times there- after, so long as there should be any incumbrancer upon the estate (but, after the death of the Earl, not without the consent of the son, Lord H., if living, in writing) to fell timber upon the estates, and to apply the proceeds in discharge of the incumbrances ; and after the death of the Earl the son claimed the right to fell timber and apply the proceeds for his own use ; and a bill was thereupon filed by the trustees for a declaration of the true con- struction of the settlement, and for an injunction restraining the son from preventing the trustees from receiving the proceeds of timber felled with his consent, and also from felling timber ; the Court, overruling a demurrer to tlie bill, held, that as the inter- ference with the sale was by a cestui que trust, and not by a mere stranger, the proceeding was properly the subject of equitable jurisdiction, and that the timber growing upon the estate during (1) Marker v. Kek-iivich, 8 Hare, 291. WASTE. 147 the life of the defendant, the' son, was to be applicable, not to his Pabt I. own purposes, but to relieve the inheritance from the incum- g^cT. 16. brances, and that the power to fell timber given to the trustees was not void as an infringement of the law against perpetuities (1) ; and, upon motion, an injunction was granted, it being held, upon the construction of the settlement, that the scheme of it was that the timber should be used to relieve the inheritance of the charges upon it, and that for this purpose the power given to the trustees was expressly made paramount to the privileges of the tenant for life without impeachment of waste to cut the timber, and that his consent was made necessary to enable him to regulate the mode of exercising the power (2). 32. The assignees of a bankrupt tenant for life have no right Assignees of to cut ornamental timber, any more than the tenant for life him- tenant for life self; and if they do, the money proceeding from the sale will go cut"fna-° to the first person entitled to the inheritance, and the assignees ^^^'i^l timber _ . _ ° —Sale moneys will be deprived of the income, even during the life of the tenant will go to first for life. The doctrine and principle of the interference of a Court inheritance, of Equity, in the case of a tenant for life cutting timber, is, that ^olri'-huiThe no man shall obtain a benefit by his own wrong, and a tenant for ™oome, the Tn 111 •/• 1 n 11- doctrine biing hie would do so it he were allowed the interest of the fund— no man produced by the sale of the timber (3). The tenant for life may, by\ia own however, gain a benefit indirectly, but not by reason of his own ""™^=- act, as in the case of timber thrown down by storm ; the produce life are en- is laid out in the purchase of stock, and the interest of the fund is Jnt^est of paid to successive tenants for life ; and so of decaying timber (4). ™oiieys . J " \ / arising from In this case an estate stood limited to A. for life without im- timber blown peachment of waste, with remainder to his issue in tail, with a decaying similar remainder to B. for life, with remainder to his issue in *™''^"'- tail; and A. and B. became bankrupt, and the assignees under their joint commission committed equitable waste by cutting ornamental timber. The produce was brought into Court, and it was held, that the assignees were entitled to no part of the income, either in respect of the estate of A. or that of B., but (1) Briggs v. Earl of Oxford, 1 De (3) LusUnyton v. Boldero, 15 Beav. Or. M. & G. 363 ; 5 De a. & Sm. 156 ; 1 ; 16 Jur. liO ; et v. the note of Mr. 16 Jur. 53, 558. Beavan to this case, 15 Beav. p. 9. (2) lb. (4) lb. L 2 148 WASTE. Part I. Chaptee I. StCT. IG. Parties flefen- (lants alone ix-striiined committing waste — except as workmen or servants of defcnJants. Tenant of farm re- strained taking from a pool mineral substances, the right of the plaintiif having, bem established. that the whole produce and accumulation belonged to the eldest son of C, as first tenant in tail. 33. On a devise of a park to tenants for life, with successive remainders in tail, containing a proviso against mowing it, but no devise over in case of breach of the restriction, Yice-Chancellor Sir J. L. Knight Bruce gi-anted an injunction against mowing, stating that he did so with great reluctance (1). 34. The Court will not grant an injunction to restrain waste against persons specifically who are not parties defendants to the bill, but they may be restrained as workmen or servants of the defendants, if they fill that character (2). Where a party filed a bill against his immediate tenant to restrain him from cutting turf for sale on a valuable bog appurtenant to the lands demised, and the tenant put in his answer, stating that he had never by himself ' been in the actual occupation of any portion of the lands, that he had never by himself or any of his agents committed the waste charged by the bill, and that if his sub-tenants had cut turf, for sale or otherwise, he was unable to restrain them from so doing, the practice having existed previously to the lands coming into his possession ; the Court held, that though it did not appear whether these tenants were merely tenants from year to year, or had any greater interest, the injunction could not issue as they were not before the Court (3). 35. A perpetual injunction was granted to restrain the tenant of a farm, in part of which was a pool, through which ran a stream from the mountains, depositing in its passage mineral substances, from taking and carrying away from and out of the bed and bottom of the pool, or any part thereof, any soil, oxide of iron, ochre, slime, deposit, or other mineral substances ; and from pudd- ling, loosening, disturbing, and floating, and from causing to be puddled, loosened, disturbed, or floated off, any soil, oxide of iron, ochre, slime, deposits, or mineral substances already deposited, or thereafter to be deposited, upon the beds of the said pool, the right of the plaintiffs to the several mineral substances having been established by a verdict in an action at law brought by . (1) Blagrave V. Blagrave, 1 Tie G & (2) i^efniara v. ^wrfe, 7Ir.Eq.Kep. Sni. 252. 2S'2. (3) Nvrbui-y (Lm-d) v. AHeyne, 1 D. & Wal. 337. WASTE. 149 them against the defendant, and not in an issue or action directed Pabt l. Chapter I. by the Court (1). Sect. 16. 36. The Court will award a perpetual injunction to restrain ^^^ ^^^^ waste by ploughing, burning, breaking, or sowing of down land (2). re.stram3 ... . waste by In Goring y. Goring (3) the Court refused an injunction to restrain pioughiag, &c. a lessee from ploughing pasture lands which had remained un- ^^^^^ '^^^ ploughed, during the continuance of the lease, for thirty years, but j^^"™* '^^' had been ploughed within six years prior to its commencement ; the Court (Lord Nottingham) holding that this circumstance prevented them from being ancient pastures within the rule of the Court usually granting an injunction to restrain the ploughing of meadows and ancient pastures, but an injunction was granted as to the meadows. 37. Where a lessee had covenanted not to dig up a particular Injunction nii-i • i> ■• 1 1 1-1 against rais- part of the demised premises for raising sand, gravel, or brick- ing sand, &o., earth, and if the premises were dug for that purpose to pay the naiitoT^°°^^' lessors £100 per acre ; and he broke the covenant, and thereupon the lessor filed a bill for an injunction, and on affidavit of the waste committed an injunction was granted till answer and further order ; and after the answer put in a motion was made to dissolve the injunction, and upon shewing cause the defendant consented to appear and plead to an action of debt or trover, and to take short notice of trial, and thereupon the injunction was dissolved ; on appeal, the House of Lords discharged this order, and granted an injunction to continue till the hearing of the cause. The ground taken by the appellant was, that the £100 was a penalty, and that he was, therefore, entitled to relief (4). 38. In Ireland, a lessee for lives renewable for ever will, unless Lessee for J •!■ i 1. i-ji? -ij.- lives renew- under especial circumstances, be restrained irom committing ^bie for ever waste (5). In White v. Walsh (6) a lessee for lives renewable for restrained ^ ' ^ ' committing ever was restrained from committing waste on the demised premises waste— 1 ,■ ■ci.i 1-. 11 11 restrained cut- by cutting turi, although it appeared that the bog cut out M'as ting turves converted into pasture land, and that the ground was improved g^und (1) Tliomas v. Jones, 1 Y. & C. Ch. (3) 3 Sw. 661. improved— 510 ; and see Liaraet v. Johnson, lb. (4) City of London v. Fugh, 4 Bro. 527, n. P. C. 395. (2) Worsley v. Stuart, 4 Bro. P. C. (5) Goppinger v. Oubhins, 3 J. & L. 377. 397 ; 9 Ir. Bq. Rep. 304. (6) 1 Jones, 626, n. ; Anon. lb. 150 WASTE. Part I. by the waste : and a lessee for years renewable for ever will be Chapteh I. . , „ , Sect. 16. restrained from similar waste, although it appear that the tenant anil thougli ^^^ immemorially cut turf (1). But in Count de Salts v. (2) imraemorially ^jjg Court refused an injunction to restrain a tenant from cutting but not re- turf as fire-bote ; however, in Lord Courtown t. Ward (3) the tia"™s firo-'' ^ourt restrained a tenant from cutting turf for sale (his lease giving bote. a right of estovers only) notwithstanding an uninterrupted practice for eighty years. But a mere demise of bog as such will not give the lessee the right to cut turf for sale, particularly where the When tmf demise is of the bog with other property. But if nothing but bog sale. be demised, and it is not convertible for any other use save being cut for sale, or if it were at the time of the demise used by cut- ting it for sale, the lessee may cut turf for sale (4). And where tenant in fee, in possession of lands, conveyed the same and all bogs thereon to a purchaser, who, by deed of equal date, demised the lands to the vendor and his heirs for lives, renewable for ever, to hold "in the same manner as he now holds and enjoys the same," reserving a rent equal to £6 per cent, on the purchase-money, and the lease contained the ordinary powers and covenants, and the vendor had, in some few instances before the conveyance, cut turf for sale ; the Court, nevertheless, being of opinion that there was no such general dedication of the bog to cutting for the mere purpose of sale as to convert it into the nature of an open mine, Lessee for held, that the lessee was not entitled to cut turf for sale (5). And Jbk forever ^ lessee for lives renewable for ever will be enjoined from com- restramed mitting waste by cutting timber if he allow a large arrear of rent to cutting timber o j o o if large arrears bscome due (6). But in ConoUij V. Eley (Lord) (7) Lord Chancellor Manners would not restrain a tenant for lives with a covenant for perpetual renewal from cutting timber, though it did not appear when planted, but ordered that the defendant should keep an account of the produce, with liberty to the plaintiffs to proceed at Law. (1) Waterparh {Lord) v. AuMen, 1 (6) White v. Kowlan, 1 Hog. 21 ; Jones, 627, n. ; Purctll v. Walsh, lb. 625. S. P. Pirn v. Davies, 1 Hog. 11. (2) 2 Moll. 516. (7) 2 Moll. 515 ; S. P. Percy v. (3) 1 Scb. & Lef. 8. Shanty, lb. ; and Montgomery v. Cun- (4) Coppinger v. Ouhhins, 3 J. & ninghame, lb. 536 ; sed sccus if foi Lat. 397 ; 9 Ir. Bq. Rep. 304. sale, Boucliier v. O'Orady, lb. 536. (5) lb. . WASTE. 151 39. The Court will restrain waste, although the act done may Part i. lead to the improvement of the land, if it immediately occasion g^^ jg ' any damage to the inheritance ; and the Court will not f efuse to MeiioratinK restrain waste by which the estate is not necessarily and perma- ^aste re- . ^ 11, 1 J 1 strained where nently improved, on the mere ground that the party has done other damage to the acts which will benefit the estate ; therefore, an injunction to restrain cutting turf will not be refused on the ground that the tenant has converted the cut-out bog into arable land (1) ; but, qusere, whether the Court will, in such a case (namely, a lease for lives renewable for ever) restrain mere acts of meliorating waste by the lessee for lives (2). 40. Where the plaintiff in the cause had obtained an order for a injnnction receiver, and was proceeding to cut timber upon the estates before application of the receiver had been appointed, the Court refused to grant an * "ere agent injunction upon the application of the defendant, it appearing that authority to the latter, who was the agent of the owner of the estates (also a defendant) had no interest in such estates, and no authority from his principal to make the application (3). 41. In Morris v. Morris (4) ornamental timber was protected Ornamental by an injunction though the mansion-house had been pulled down, ^tel{heie) and the bill did not complain of that act. Vice-Chancellor Sir ^^^u^ man- ■^ sion-honse L. ShadweU said that he thought the power in the settlement to pulled down. demise to persons who should be willing to build or to repair houses tended to sustain the right of those in remainder to have the trees preserved which were originally planted for shelter and ornament ; because though the mansion-house which the trees were intended to shelter and ornament no longer existed, yet there was a possibility^ of leases being made for the purpose of building houses, which might receive a benefit from the ornament or the shelter afforded by the trees ; and that, in that respect, it was something like the case of Wdlesley v. WeUesley (5). 42. Where after a decree in a foreclosure suit, a mortgagor in After decree possession began to commit waste, he was restrained by injunction, ™in°orT<>^^or^ though no injnnction was prayed by the bill (6). restrained^ {V) Coppinger\.Gvhlins,Z3.&,l>2A. (N. S.) C!h. 320. waste. 397 ; 9 Ir. Eq. Hep. 304 ; Leeds {Duke) (4) 15 Sim. 505 ; v. WeUesley v. Wd- V. Amherst, 2 Ph. 122. leslei/, 6 Sim. 497. (2) lb. ; V. post, pi. 110. (5) Supra. (3) Hunter v. Xockolds, 15 L. J. (6) Qoodman v. Kinf., 8 Beav. 379. 152 WASTE. Past I. 43. The Court will, upon motion by the receiver, grant a con- Sect. 16. ditional order to restrain tenants tinder the Court from committing A receiver waste without a bill being filed for the purpose (1). "■t;h°^*'vn ^'^' ^^ y^iner v. Vaughan (2) the Court granted an injunction injunction to against a tenant for life simply (who is therefore impeachable of rGstrflin tenants from waste) who had Contracted for excavating clay for making bricks. waste. ^ tenant for life has no right to take the substance of the estate by opening mines or clay pits ; but where the author of the settlement or gift has previously worked them, the tenant for life has a right to continue the working of them, and for this reason, that the author of the gift has made them part of the profits of the land; but it does not follow that the tenant for life has a right to open old abandoned pits, or to commence opening any mines or pits which the author of the gift has merely made preparations for opening ; and the defendant was restrained from taking away the substance of the estate before the question had been tried, namely, whether the pits were in such a state as to enable the tenant for life to work them. Tlie Court will 45. Where a bill by the person next in remainder charged by collusion, that the tenant for life, who was dispunishable of waste, and who had power to make leases not dispunishable of waste, had demised a part of the lands to a third person, and that such person, in collusion with the tenant for life, was committing waste by turning up, tilling, and burning the land ; and the defendant ad- mitted the turning up, &c., but stated it was land which the tenant for life had reclaimed and laid down in grass thirty years before ; semble, that such pasture is not ancient meadow (3). But as to the point of collusion, the Court will interfere if the tenant for life and the remainderman in fee, subject to contingent estates, are committing waste in collusion (4), or where waste is being committed by a tenant for life in possession, who has'^the next vested estate of inheritance in remainder, but subject to inter- mediate contingent estates (5). (1) Cronin v. M'Carthy, Fl. & K. Eep. 414. 49. (4) Garth v. Cottm, 1 Dick. 183; 1 (2) 2 Beav. 466 ; affirmed by the Ves. Sen. 524, 548 ; 3 Atk. 751. Lord Chancellor, June 9, 1840. (5) Williams v. Bolton^ {Duhe of), (3) Davies v. Puvies, 2 Jr. Eq. 1 Cox, 72. WASTE. 153 46. A tenant will not be allowed to break up ancient meadow Part i. or pasture, though the land is mossy and requires tillage (1). seot. 16. 47. Where the relation of landlord and tenant existed between where rela- the parties, the Court has sometimes interfered by injunction ^°^ °^J^^'^' to restrain waste, though the locus in quo, being the property tenant exists, of the landlord, was not any part of the demised premises ; but times where such relation does not exist, the Court will not interfere. t^o,^g™?M«s Therefore where waste on the demised premises was commenced &c., not . T /. 1 1 J 1 aemised — but during the tenancy, and continued after the tenancy had deter- (in cases of mined, by persons claiming under the late tenant, the Court, after jacter) no iu- the determination of the tenancy, refused to grant an injunction (2). ^^^^l^\^^^ 48. Where a lessee in Ireland had covenanted not to sub-let relation does without consent in writing, or that he should forfeit and pay the additional rent of £50 per annum, " and also not to cut more turf than should be sufficient for the consumption of himself, his executors, administrators, and assigns on the demised premises without consent in writing," or that he, &c., should forfeit and pay the additional rent of £10 for every acre which should be cut or made into turf; and the representative of the lessee sub-let without consent, and the additional rent of £50 had been regularly paid and received ever since ; and the representatives of the lessor having filed a bill against the representatives of the lessee, and the several under-tenants for an account, and for an injunction in the nature of a writ of estrepement (3), then moved that the de- fendants might be restrained from selling turf off the demised premises, and from burning turf for manure, and from cutting the reclaimed meadow land into turf, and from cutting more turf than allowed by the original lease, being only a sufficiency for the use of one family ; the Court granted an injunction until the hearing to restrain the selling of turf and burning for manure, and also cutting the reclaimed meadow land ; but on the motion refused to • restrain the under-tenants from cutting turf sufficient for their own consumption on the premises, the Court observing that there would be a serious question on the hearing of the cause (4). (1) Martin v. Coggan, 1 Hog. 120. waste ; the common law writ of waste (2) Wrixon V. Oondran, 1 Ir. Bq. giving a corrective remedy, {v. 3 BI. Rep. 380. Com. 225, 6, 7.) (3) A common law writ giving a (4) Maxwell v Mitchell, 1 Ir. Eq. B. preventive remedy for the injury of 359. 154 WASTE. Part I. 49. The Court in Ireland will not entertain a motion for an Sect. 16.' injunction in the nature of a writ of estrepement to restrain waste, No injunction ^^^^P* where the title is clear (1). But an injunction in the in nature of nature of a writ of estrepement of waste does not lie against a estrepement . . unless title tenant holding under a lease containing a covenant for perpetual None against renewal (2). covenant'for ^^' ^^^^^e a lease contained a covenant against ploughing or perpetual digging Up any part of the demised premises, and in case the lessee should do so, that he should pay the sum of £5 for every cart of clay or sand which he should so dig up, and also £5 in addition to the rent for every acre, so long as any part thereof When a sum should continue to be broken or ploughed up ; the Court held, that 18 dispropor- , . , . . , tioned to the the sum mentioned in the covenant being disproportioned to the penSty'and * damage contemplated was in the nature of a penalty, and not of r'ainsf liquidated damages, and that the Court could interfere to restrain by injunction the lessee from violating the covenant (3). But it appearing that the lessee had been appointed by the grand jury of the county of Dublin as overseer of certain roads in the county, under the 26 Geo. 3, c. 14, and had made tenders for the repair ol certain of those roads with gravel and stones, to be taken from the demised premises, which tenders the grand jury had accepted, and passed presentments accordingly ; the Court would not interfere to restrain the lessee so far as he acted under the authority of their Act (4). No injunction 51. Where the plaintiffs filed a bill for an injunction to restrain bre'akiiTg'iip *^® defendant, their tenant, from breaking up ancient meadow ancient raea- ^jjj pasture land (waiving penalties), and prayed compensation for ture— tenant the waste already done, and it appeared that when the defendant notice that lie proposed to take the lands he apprised the plaintiffs that he lands^as*a^ wanted them for a tillage farm ; and it also appeared that when tillage farm. i]^q (jj-aft lease prepared by the plaintiffs' attorney was read in the presence of plaintiffs and the defendant, it contained a clause re- straining tillage within certain limits, and the defendant having refused to agree thereto, the plaintiffs consented that it should be struck out, and the lease accordingly did not contain any clause (1) Lowe V. Lticy, 1 Ir. Eq. Eep. 9.3. (3) Burne v. Madden, LI. & Gr. temp. (2) Calvert v. Gason, 2 Sch, & Lef. Plunk. 493. 561. (4) lb. WASTE. 155 respecting tillage ; the Court refused an injunction, but the Paet i. plaintiffs to proceed at Law as they might be advised (1). Sect. le. 52. The Court will not interfere to restrain the waste of a sub- nq interfer- tenant at the instance of his immediate landlord, if it appear that ence against ' f^'- sub-tenant if the latter has obtained an indemnity against the claims of the his landlord head landlord (2). demnity against the superior lord. 53. Where A., holding meadow and pasture lands under a Assignees of a sub— less PG of lease of lives renewable for ever, demised a part of the premises to meadow and B. for a similar term, with a covenant to keep and deliver up the for^^lrm'for premises in tenantable order, &c., and with a power of surrender lives renew- '^ . . *°l6 for ever, at the end of every three years ; the assignees of B.'s interest restrained being about to convert the premises into a public cemetery, the premises into representatives of A. obtained an injunction to prevent them ; and |e^^*thw semhle, the proposed alteration of the property would amount to ^o^^i be waste at Common Law (3). 54. The Court will grant an injunction to stay waste of trees for ornament, or belonging to a mansion-house (4). Where a mansion-house, park, and pleasure-grounds, with certain villas on the estate, were limited in strict settlement, and the trustees were empowered to grant building leases of the settled estates, and, at the request of the tenant for life, to pull down the mansion-house, sell the materials, and apply the proceeds in paying off incum- brances on the estates, and the house was accordingly pulled down, the tenant for life unimpeachable of waste was, notwithstanding the mansion-house had been pulled down, afterwards restrained from felling the ornamental timber in the park and grounds. The The Court Vice-chancellor Sir L. Shadwell said, that timber need not neces- ^"n if'outTf sarily be ornamental to the house, for the Court protects trees ?^sW of the even if they are out of sight of the house (5). And a tenant for life without impeachment will be restrained from cutting timber planted or left standing for ornament, &c., whether ornamental or not so, and the principle has been extended beyond the mansion- house to out-houses and grounds, plantations, vistas, avenues, and all the rides about the estate for ten miles round (6). (1) Shew M.Weir,ilr.'E,q^.'B.e^.2\S. (5) Wdltsley v. WeOesley, 6 Sim. (2) Eeogh v. Collins, Hay & J. 805. 497. (3) Hunt V. Brown, Sau. & Sc. 179. (6) Downshire {Marquis of) v. (4) Garth v. Cotton, 3 Atk. 751, 756. Sandys 6 Ves. 107, 110. 156 WASTE. Part I. Chapter I. Sect. 16. Trees to ex- clude objects are within doctrine of equitable ■waste. Extended to clumps of firs two miles from house. Trees for shelter of maTision — trees forming avenues^ ridings in parks — within the doctrine, aid whetlier planted or growing naturally. Though — as between lessor and lessee — a lease pei-mit- tiiig waste is good, yet the Court will pre- vent waste if it injure a security. 55. The Court extends its jurisdiction granting an injunction against cutting ornamental timber, upon the principle of equitable waste, to trees planted for the purpose of excluding objects from view(l). Lord Chancellor Eldon, in Doumshire t. Sandys (2), extended an injunction restraining a tenant for life without im- peachment of waste from cutting timber growing for ornament or shelter to clumps of firs on a common two miles from house, having been planted for ornament. The Court will restrain a tenant for life without impeachment of waste from cutting down timber trees which were for the shelter or ornament of the mansion-house, and any timber trees planted or growing in lines, avenues, or ridings in a park ; and whether trees grow naturally, or whether planted, if they serve for ornament or shelter, it is the same thing (3). 56. Where R. N., by his will, devised to F. N., and his assigns, for life, all his real estates in W., without impeachment of waste, except the timber growing in the park, avenues, demesne lands, and woods adjoining to tlie capital messuage called A., remainder in trust for C. N. N. for life, remainder to his first and other sons in tail male; the Court held, ihat the restriction as to cutting timber was confined to the premises specified in the exception clause, and ought not to extend to the woods adjoining to the excepted parts, nor to the avenues made by the testator in those woods; and that no proceedings for equitable waste could be maintained as to trees planted, &c., for ornaments, &c., as to a house which had formerly been a principal mansion, and having gone into decay had been restored by F. N., the tenant for life (4). And the mere fact that the devisor or settlor may have thought that the house might possibly be rebuilt is not enough to make the timber ornamental timber (5). 57. Although a bill may be dismissed so far as it seeks to set aside a lease made to a defendant which permitted waste, and which is a good lease as against the lessor, yet it is within the province of the Court, while money due, under a settlement to (1) Day V. Merry, 16 Yes. b75. (4) Newdigate v. Newdigate, 6 Bli. (2) 6 Ves. 107. (N. S.) 734; 2 C1.& F. 601. (3) Packington's Case, 3 Atk. 215 (5) Kewdigate v. Newdigate, 8 Bli. (there appears, upon the point of waste, to be no report of Charlton v. Charlton, cited by the Lord Chancellor). (N. S.) 734 ; Micklethwait v. Mickle- thwait, 1 D. & J. 504, 527. WASTE. 157 the plaintiff, remains unpaid, to prevent any waste which may tend paet I. to injure the security (1). ^^^^^ ig 58. In Fingcd {Earl) v. Blahe (2) an injunction against cutting . ^ j. ^ ^^ timber was granted, although the will was not established, and the stay waste at title was disputed as between the devisee and heir-at-law. In this against heir in case the Lord Chancellor Hart, on a rehearing, reversed an order possf'ssion. refusing an injunction to stay waste at the suit of the devisee in trust against the heir-at-law in possession, who disputed the will, which order had been affirmed, on appeal, by Lord Chancellor Manners, the Court below and the Lord Chancellor Manners con- sidering the law of the Court as settled in cases between heir-at- law and devisee not to grant an injunction against the defendant who impeaches the plaintiff's title. But in Beatty v. Beatty (3) an injunction was refused against felling timber, at the suit of a devisee, against the heir-at-law in possession admitting the waste, but disputing the will, on the ground that the denial of the title of the devisees, and the assertion of the title as heir, made him, if he had no right, a mere trespasser. 59. The Court will not grant an injunction to stay waste at the No injunction instance of a judgment creditor in a suit by him against a party ^anted^to^'^ who is heir-at-law and administrator of the debtor, unless there be judgment cre- T • 1 1 1 1 • • T A 1 ditor against an affidavit that the debt is m danger of being lost by the acts of heir and ad- waste being permitted (4). dStLL' evidence that debt in danger of being lost by the waste. CO. An injunction may be obtained upon motion to restrain a Purchaser purchaser, under a decree, not a party to the cause, who has not owing puiv*^ paid the purchase-money, from committing waste on the property chase-money purchased (5). committing waste, though not a party, and upon motion. 61. An injunction against committing waste will not be granted against a mortgagee, even though he make no affidavit denying the waste, if it appear by the affidavit of the actual occupier of the land that the alleged waste is not committed by the mortgagee, or by his authority (6). 62. On a mortgage of wood and underwood it is not waste by Mortgagor of , ' . , wood and underwood not restrained cutting underwood seasonably — but mortgagee entitled to injunction if mortgagor becomes bankrupt. (1) Turkington v. Kearman, LI. & (4) Leahe v. Beckett, 1 T. & J. 339. G. temp. Sugd. 85. (5) Casamajor v. Strode, 1 S. & S. (2) 2 Moll, 50, 542. 381. Qi) 2 Moll. 541. (6) Anon., 1 L. J. (Cli.) 119. 158 WASTE. Paht I. the mortgagor in possession to cut underwood at seasonable times ^Seot^iV ^^^ °^ proper growth ; but being a bankrupt, an injunction was - granted on the right of the mortgagee to have the estate sold in the plight in which it was at the bankruptcy, and to prove the rest of his debt (1). 63. The Court will restrain cutting underwood of insuflScient growth (2). No injunction 64. An injunction to stay waste will not be granted where it is fu™^ " °" ' doubtful whether the acts complained of are waste ; and, under the late practice, the plaintiff was obliged, first, to try the ques- tion of waste or no waste at Law ; but now, under the recent changes in the practice, the question of waste or no waste can be tried or decided in Equity (3). 65. In Attorney-General v. Marlborough {Duhe of) (4), where an injunction to stay waste had been granted on petition, a reference was made to inquire what timber, &c., might be cut advantageously. If waste trivial gg. In Barry V. Barry (5) the Court refused an iniunction to no injunction. ^ n , , j. ■ stay waste, on the ground that the acts of waste committed were trivial, and also that the plaintiff's proceedings had been dilatory ; but Lord Chancellor Eldon said that he admitted that a small degree of waste (he did not say the smallest), manifestiog an attempt to do more, would be sufficient for the Court to act upon ; but that it would look at it in the manner in which the subject was viewed by the Courts of Law, and there the extent of the waste done was considered very material ; and that there was an authority at Law where, a verdict having been found for the plaintiff, judgment was entered up for the defendant on account of the extreme smallness of the damages (6) ; and that a Court of Equity would, in this, follow the Law. 67. In Pratt v. Brett (7) the Court granted an injunction to stay waste, and from sowing land with pernicious crops. Tenant for 68. An injunction will be granted against waste by a tenant for strained" y^^^^ C^)- ^^ Onslow V. (9) the Court granted an injunc- tion to restrain a tenant from year to year under notice to quit, as (1) Hampton v. Eodyes, 8 Ves. 105. (5) 1 Jao. & W. 651. (2) Brydges v. Stephens, 6 Madd. (6) Barrow School v. Alderton, 2 B. 279. & P- 86. (3) Lyon v. Wilkinsm, 1 L. J. (Ch.) (7) 2 Madd. 62. 155 {v. 25 & 26 Vict. c. 42, Rolt's Act). (8) Kimpton v. Eve, 2 V. &• B. 319. (4) 5 Madd. 280. (9) 16 \os. 173. WASTE. 159 in the case of a lessee for a longer term, from doing damages, and Part I. from removing the crops, manure, &c., except according to the seqi, iq ' custom of the country. In Twort v. Twori (1) an injunction was Tenant from granted against waste between tenants in common, on the ground yea"" t? yf^^r that one was occupying tenant to the other, but otherwise there is from removing no injunction between tenants in common, except as to positive cept according and actual destruction (2). And in 8maUman v. Onions (3) an *" custom. 1 1 • ■«■ 1 1 /• No injunction injunction to stay waste was refused where the plaintiff and defen- by tenants in dant in possession were tenants in common, but granted on an against each affidavit of the defendant's insolvency and that he was unable to j'^™ unless pav his co-tenants their shares of the money produced by the sale occupancy as , • 1 T. , /-. -I, ... tenant, or of the timber cut. But the Court will not grant an injunction insolvency ; between tenants in common against pure equitable waste (4). ^^^ noinjunc- tion against pure equitable waste. 69. An injunction will be granted against waste by destruction Destruction of of a dove-cote, but not by removing presses eo nomine, if not fixed stolSiedf 'aS to the freehold, in which case it would be waste (5). removing ' *• ' presses, if fixed to freehold. 70. Where there is an executory devise over, even of a legal Where execu- estate, this Court will not permit timber to be cut, more especially ^hetherie^l in the case of a trust estate ; and in Stansfield v. SahergJiam (6), °'^tl'^™'t'''^t' Lord Chancellor Eldon restrained the heir, who was entitled by way restrained, of resulting trust, until the determination of an event, upon which the future contingent estates were to arise, from cutting timber. 71. The Court will not grant an injunction to stay waste without Waste not positive evidence of title (7). "Sfosi- 72. Lord Chancellor Eldon, in Davis v. Leo (8), said that he ^"^ evidence /.TO -11 of title. had no doubt a tenant for life might have an injunction, particu- larly as to ornamental timber, for that that was not so much upon his interest as his enjoyment. 73. In Williams v. MNamara (9), Lord Eldon,, on the ground The injunc- that the orders in such cases did not contain any such words, mentel*tim™er' refused to extend, bv inserting the words "contribute to orna- ?°*,^^*®"!^'^. . . . " to " contribute ment," an injunction against cutting ornamental timber ; and the to ornament." (1) 16 Ves. 128. (5) Kimpton v. Eve, 2 V. & B. 349. (2) Twort v. Twort, supra ; Hole v. (6) 10 Ves. 273. Thomas, 7 Ves. 589. (7) Davis v. Leo, 6 Ves. 784. (3) 3 Bro. C. 0. 621. (8) Supra. (4) Hole V. Thomas, supra. (9) 8 Ves. 70. IGO WASTE. Part I. order was taken in the terms, " standing for ornament or shelter." Seot. 16. I'l Ooffin V. Coffin (1) Lord Eldon said : " The Court does not pro- Timber ^^^^ timber because it is ornamental, but it protects it if it was planted for planted for ornament, whether it is or is not ornamental." Where ornniuent, n • n i i i i whether orna- equitable waste of one kind only has been done or threatened, is protected. ' the injunction is not to be extended to equitable waste of other kinds (2). But the Lord Chancellor refused to extend the usual injunction in cases of equitable waste, to trees which protected the premises from the effects of the sea (3). In Tamworth {Lord) v. Ferrers {Lord) (4) the Court granted an injunction to restrain tenant for life without impeachment from cutting timber or other trees planted or growing for shelter or ornament, and from cutting, except in a husbandlike manner. Waste re- 74. In equitable, as in legal, waste, if one act of waste be esta- raUy?if oir^" blished, the Court will restrain equitable waste generally (5). And act of waste. ^ small degree of waste manifestina; an intent to do more is suffi- Small degree ° ° of waste sufB- cient for the Court to act upon (6). manifested to 75. In cases of waste it is the business of the reversioner to do more. ^^^-^^ ^ (.^^g q^^^ promptly (7). Tenant 76. Where a tenant defending an ejectment brought by his feult Reject- landlord, makes default at the trial, and makes use of the interval ment, re- ^q ^q a,ll the mischief he can by breaches of covenant and wilful strained com- .... mitting wilful waste, an injunction will be granted on motion, or, in the vacation, on petition ; but it was refused where no ejectment had been brought (8). Vendor 77. If a tenant for life liable to waste sell timber, he cannot (tenant for -, n ■ ■ /r.\ life) liable for prevent the vendee irom cutting it (9). prevent™"^" 78. "Where the Court had granted an injunction from further cntt^^" ^""^ J ' that waste had mitted waste before the filing of the bill, though he swore that he been com- . • n mitttd before had Committed noae since, yet the Court, under the old practice, entities' to would not dissolve the injunction, for the Court, upon that admis- injunction. gj^jj^ would presume that he might do further waste (1). Cuttinp; down 92. The cutting down decayed timber is as much waste as decayed tim- . ber is waste, cutting down any other (2). A person 93. Under the old practice an injunction was granted before interest was answer to Stay waste, by a person having no interest in the thing brfo™wer. wasted, but merely acting as a servant (3). Waste re- 94. The Court will grant an injunction to stay waste in favour strained in <. • j} j. • i ' / 1 \ favour of *^^ ^.u miant tn ventre sa mere (4;. infant in ventre, &o. No injunction 95. The Court, in Attorney -General v. Ancaster (Bulce) (5), not a'party™ gratited an injunction to stay waste against a tenant in possession not a party. But, in Hodson v. Goppard (6), where the defendant had had property conveyed to him in fee, with a restriction, by way of use, against carrying on certain trades on the property, and the defendant's tenants carried on such trade; upon a bill by the grantors against the defendant (the grantee) alone, for an injunc- tion, upon which he insisted on his right to carry on the trade, the Master of the Rolls (Lord Romilly) granted a perpetual injunc- tion against the defendant, his servants and agents, but declined extending it to his tenants, being of opinion that he could not grant an injunction against the defendant and his tenants. 96. In Vane v. Barnard (Lord) (7) (the Baby Castle Case) the Court granted an injunction to prevent a tenant for life dispunish- able for waste from pulling down a castle, and also ordered that the castle should be repaired at the expense of the defendant, the tenant for life, who had collected 200 men and stripped the castle of iron, lead, doors, &c. In this case the defendant. A., on the (1) Anmi., 3 Atk. 485. grave v. Parry, 2 Vera. 710; LuttereJ's (2) Perroi v. Perrot, 3 Atk. 95. Case, cited in IJah v. Bale, Prec. Ch. 50. (3) Orrery (Lord) v. Newton, Eidg. (5) Dick. 68. 252. (6) 29 Beav. 4. (4) Wallis V. Hodson, 2 Atk. 117 ; (7) 1 Salk. llil ; 2 Yern. 738; Prec. Bohivson v. Litton, 3 Atk. 211 ; Mas- Ch. 454; Gilbert Eq. Eep. 127. WASTE. 165 marriage of his son, had settled {inter alia) the castle on himself Pakt I. for life, sans waste, remainder to his son, the plaintiff; and the seot. 16. Court held, that the father, though his estate was sans waste, could not pull down the castle, nor commit any voluntary waste therein. 97. In Bayrell v. Chamfneys (1) the Court granted an injunction to stay waste in cutting trees, on a bill by a party who was only tenant for life and had no right to the trees, and though a party entitled to the inheritance was not joined. 98. The Court will grant an injunction to stay waste against a jointress jointress (2). But where it was covenanted that the jointure commitUD" should be of a certain value, which it was not, the Court refused waste—not so where the the injunction (3). covenant as to 99. Where there is A., a tenant for life, as a jointress, remainder not performed. to B. for life, remainder over in tail. A., though dispunishable of waste at Law by reason of the mesne remainder for life, yet shall be enjoined from committing waste in a Court of Equity ; but the Lord Chancellor said that if her jointure deed were made with an express clause of without impeaehment of waste, as the case in truth was, there could be no prohibition as to those lands (4) ; but this Court will not permit a tenant for life, with an express clause without impeachment of waste, to do acts that may destroy the inheritance (5). 100. In Bush V. Field (6) a defendant was stayed by injunction from pulling down his rooms to the prejudice of the plaintiff's rooms. 101. The Court, at the suit of an assignee of a lease, granted an Landlord injunction to restrain the landlord from cutting ornamental trees tj^ J gj^^a. °" " on a lawn during the term of the lease, upon the ground that the ^^^^^ trees ° _ _ *- '^ on a lawn on conduct of the landlord since the execution of the lease amounted the ground of to a consent to the tenant's plan of improvement, laying out the in laying out lawn, &c. (7). l^'^' *<=• 102. The sending a surveyor to mark out trees is a sufiScient Sending sur- veyor to mark out trees sufiScient ground for injunction. (1) 1 Eq. 0. Abr. 400, cited Dick. 197. Bassett v. Bassett, Pincli. 189. (2) Cooke Y. Whalley, 1 Eq. C. Abr. (5) Aston v. Aston, 1 Ves. Sen. 263 400. (Belt's Ed.), and the note and re- (3) Carew v. Carew, 1 Eq. 0. Abr. ievencestheYewhh.; v. Marker y. Marker, 400. Hare, 1, 17. (4) Tracy v. Tracy, 1 Vern. 23 ; (6) Gary, 90. Tresham v. Gerrard, Tothill, 144 ; (7) Jackson v. Cator, 5 Ves. 688. 166 WASTE. Part I. ground for an injunction, the Lord Chancellor observing that he Chapter X Sect. i(j. \ *" prudence act without any malicious motive (0). and reason, and although no malice. 7. Where a person possesses a legal right, a Court of Eq uity The Court Will not interfere to restrain him from enforcing it, tHough, between strain exercise the time of its creation and that of his attempt to enforce it, he from^reprf- has made representations of his intention to abandon it. Nor will mentations 'of ■^ _ intention to Equity interfere even though the parties to whom these repre- abandon it — sentations were made have acted on them, and have, in full belief tiioughirre-' in them, entered into irrevocable engagements. To raise an equity engao-ements in such a case there must be a misrepresentation of existing facts, entered into— . . ' ° there must be and not of mere intention (Lord St. Leonards dissentiente) (4). misrepresen- But, ^er Lord St. Leonards, it is immaterial whether there is a i^g^fects^^d' misrepresentation of a fact as it actually existed, or a misrepre- ?°,* °^.™<^i''5 sentation of an intention to do or abstain from doing anv act which (^^^ H. L., Lord St. would lead to the damage of the party whom you thereby induced Leonards to deal in marriage, or in purchase, or in anything of that sort, on '**'' the faith of that representation (5). 8. The equity of the plaintiffs case may consist in the mode Plaintiff's adopted by the defendant of exercising a certain right, rather than a^i^l'ftX'' in the want of such a right itself ; involving the necessitv of a "defendant's . •' modeofexer- summary interference to reconcile the conflicting claims of the cisinga rigiit. (1) Bramwell v. Halcomh, 3 My. & point, S. G. 2 De G. M. & G. 94. Cr. 737, 786. (3) Turner v. Wright, 6 Jur. (N. S.) (2) Sparrow v. Oxford, Worcester 809. and Wolverhampton Bailway Com- (4) Jordan v. Jlfo)???/, 5 H. L. C. 185. pany, 9 Hare, 441; afBrn?ed on this (5) lb. N 2 180 ANNUITIES. Part I respective parties. Tiins, where the defendant was entitled to a ChAFTEII I. 1-11 • c II- 1 . Sect. 17. water-power supplied by a waste weir irom a public canal, m a bill for an injunction brought by the canal company, the Court remarks, " The defendants claim that during the time that business is suspended on the canal they have a right to have the water flow in its original channel ; but they have not taken the right method of asserting their right, if they have any. The plaintiffs are in possession of the water for the purpose of their canal, and the time during which they need it for the actual business, and the quantity \\hich they need to keep in the canal during the winter season, when business is suspended, are necessarily quite indefinite. It is impossible, therefore, that the defendants can be allowed to define for themselves the plaintiffs' right, and interfere with their posses- sion. They insist on opening the weirs and helping themselves, according to their own judgment, but this would be a lawless mode of vindicating their rights, and it cannot be allowed. If the defendants have any right to the water beyond what the plaintiffs are willing to concede to them, they must bring their bill or action to have those rights defined before they can be enforced" (1). Irreparable 9. Xotwithstanding a denial of title, an injunction may issue to stayed, though Stay irreparable mischief or waste (2). denial of title. ^,0. Where there is a privity of estate, as between reversioner If privity of _ ... estate injunc- and particular tenant, an injunction may be had, without irrepara- tion, though , , . . ii • i i • i Lo irreparable Die injury; otherwise where the parties are strangers to each misc le . other ui reference to the estate, or mutually adverse claimants ; Injunction to , t .-,, prevent whether the act be waste or trespass (3) ; and Chancery will mter- though title P*^**® ^^ prevent the destruction of the inheritance, even where both and possession title and possession are in dispute (4). in dispute. '■ j. \ / Sect. 18. — Annuities. If annuity not 1. Where the only remaining assets of a testator consisted of a Court will devised real estate, which was liable to his bond for securing an (1) Per Lourie, J., Erie, i£c. v. (3) Geoi-ges, , 2ud Ed. ANNUITIES. 181 annuity, and before the annuity had fallen into arrear the annul- Part I. tant instituted a suit for administration of the real and personal sect. ig. ' estate, and that a sufficient part of the assets might be set apart ^ , declare and appropriated to answer the annuity, and for an injunction to the estate restrain the defendant from selling, mortgaging, or otherwise dis- event of ita posing of the real estate, and for a receiver ; the Master of the ^'^°™°s Rolls (Lord Eomilly) said that all he could do was to declare that the real estate would become liable to pay the penalty of the bond (£3000) in the event of the non-payment or falling into arrear of the growing payments of the annuity (£200) secured by the bond, and that the decree could then be registered so as to secure the plaintiffs; but that the annuity never having been in arrear the plaintiffs, who came merely for their own protection, must pay the defendant's costs (1). 2. Where in a suit relating to two annuities secured on real estate, and to which the grantor was not a party, a receiver had been appointed " of the incomes of the outstanding trust property " in the. pleadings mentioned, and the receiver tad entered and continued in possession of the real estate for six years ; the Master of the Eolls (Lord Langdale) refused to restrain the grantor by injunction from distraining on the tenants, on the ground that the order for appointing a receiver did not state distinctly on the face of it over what property the receiver was appointed, the Court having appointed a receiver " of the incomes, &c.," and not of the rents of the estate (2). 3. Where a testator charged annuities exclusively on his real estate, the legal estate of which he devised to trustees upon trust to pay the rents to, or permit the same to be received by, one for life, with remainders over, and on the testator's death the tenant for life took possession of the estate and title deeds, and kept down the annuities, but cut down some timber, and the trustees acquiesced for four years, but afterwards proceeded by action to recover the deeds and to receive the rents ; the Court, by motion, restrained the proceedings, on the tenant for life undertaking to keep down the annuities, not to grant leases or cut timber without the consent of the trustees, and bringing the deeds into Court. (1) Norman v. Johnson, 29 Beav. 77 (2) Crow V. Wood, Whitehead v. Wood, 13 Beav. 271. 182 ANNUITIES. Part I. Lord Langdale also observed that certainly the plaintiff (equitable Sect. 18. tenant for life with remainders over) had no right to cut down timber without the consent of the trustees (1). If no aiieais, 4. Where an annuity is secured by a covenant and warrant of not restrain attorney, and all the arrears have been paid, the Court will not grantor"of°^ restrain the executors of the grantor from paying his simple con- annuity ray- tract debts until they have set apart a fund to answer the future ing simple i i i • t • contract debts, payments, unless a case of past or probable misapplication of assets b^bif mis-" is made out (2) (3). application. 5_ Where A., having charged his estates by mortgages and other annuity con- incumbrances to a very large amount, appointed B. to be his rncumbranr steward Or receiver of all his estates, with verbal directions to pay rebtiained re- the interest to the mortgagees, and to pay over the surplus of the ceiving rents. ,' t ■ n,- 1 rents to himself, and on the making a fifth mortgage A., by deed, appointed B. receiver of the estates comprised in that mort- gage, and to pay over the residue of the rents to himself; and A. afterwards granted several annuities, which he charged on all the mortgaged premises, and demised the same to a trustee for securing the said annuities in manner therein mentioned, and, subject thereto, to permit A. to receive the surplus for his benefit, and at the time of granting these annuities A. represented the estate to be free from all incumbrances ; on a bill filed by the annui- tants against A. and B. (without making any of the prior incum- brancers parties), the Court restrained B., until further order, from paying over any part of the rents to A., and appointed a receiver without prejudice to the prior mortgagees' taking posses- sion. The Court said it was perfectly clear that A. ought not to be permitted to receive any part of the rents (4). Devisee of 6. Where, in his answer to a bill of foreclosure, the grantor grantor (who had admitted (1) Denton v. Benton, 7 Beav. 388. 2(;th of April, 1855 (the date of the straifipTnrn-''' ^^^ ^^"^ ^- -^^""*' ^ Sim. 567. passing of the Act), otherwise than by (3) By the 17 & 18 Vict. c. 90 (An marriage settlement or will, for a life or Act to repeal the Laws relating to lives, or for any estate determinable on Usury and to the Enrolment of Annul- a life or lives, shall not affect any lands, ties), the statutes by which memorials tenements, or hereditaments, as to pur- of grants of annuities were required to chasers, mortgagees, or creditors, until bo enrolled have been repealed ; but by the particulars mentioned in the Act a subsequent Act (18 & 19 Vict. c. 1^\ are registered in the Court of Common ss. 12, 14) it is provided that any an- Pleas. iniity or renl-charge ;;ranted after the (i) Balmer v. Dashvood, 2Co'S.,3'8. strained pro- ANNUITIES. 183 admitted the grant of the annuity, and that it was then a subsist- Part i. ing charge upon the estate, the Court held that his devisee was ^^m^ fg_ ' precluded from obiecting to the validity of tlie annuity for want 7. 7 7 '^ J D J J ^ ceeding to set of a memorial, and granted an injunction to restrain him from a&icle annuity proceedmg at Law to set it aside (1). memorial. 7. On a bill by W., the grantor of an annuity, against F., his Surety surety for the payment, and to whom W. had given a bond of annuity after indemnity, to restrain an action on the bond ; the Court held, that g^^^toMs °^ a surety under an annuity deed, redeeming the annuity subse- entitled to quently to the bankruptcy of the grantor of the annuity, was grantee's entitled to the benefit of the grantee's proof under the grantor's ^'°° ' commission, and to proceed by action against the grantor, who had obtained his certificate, for the arrears of the annuity subsequent to the commission (2). 8. Where S., being in cohabitation with M., a married woman, An annuity in consideration of her agreeing to cohabit with him granted an woman In con- annuity to a trustee for her, and covenanted to charge it on any sirjeration of •' ' o J conabitation real estate he might become possessed of, the first payment to be i" void, made upon the death or marriage of S., or withdrawing his pro- tection from her, and S. also gave to the trustee a bond and warrant of attorney to enter up judgment to secure the annuity ; and some years afterwards S. married, previously to which the co- habitation had ceased, and an action was brought on a judgment which had been entered up on the warrant of attorney at the suit of the trustee, and S. filed a bill to restrain the action, and for cancelling the grant of the annuity ; upon a demurrer put in for No iajunctioa want of equity the Court held, that upon the face of the annuity granted to re- deed bond and warrant, they were given for an unlawful purpose, ^'■'fi'i motions and would be held void at Law ; and that the case fell within the mfi^ts "poQ principle adopted by Lord Chancellor Cottenham in Simpson v. illegal, and Lord Eowden (3), that where an instrument upon the face of it is anjf drfraidrnt illegal, the defendant will be left to raise his defence at Law, and a* Law will be . , ' left to raise Will not be permitted to come into equity for relief, and the i"s defence demurrer was allowed (4). 9. The Court of Chancery has a concurrent jurisdiction with Chancery has (1) Bobertsv.Maddocks, 13 Sim. 649. (3) 3 My. & Or. 97. (2) Watlcins v. Flanagan, 3 Russ. (4) Smyth v. Qriffin, 13 Sim. 245 ; 421 ; S. C. 1 G. & J. 199. affirmed 14 L. J. (N. S.) (Oh.) 28. 184 ANNUITIES. Pakt 1. Courts of Law in annuity cases, and therefore can entertain a suit Sect. 18. to raise the arrears of an annuity, though the deed granting the concurrent annuity contains a clause enabling the grantee to distrain, and the jm-isdiotion bill contains no averment of any substantial difficulty to prevent with Common i/. « i . Law in the plaintiff availing himself of this remedy (1). annul y cases. jq^ Where a testator having by his will devised all his lands to A., subject to an annuity for his wife, and afterwards devised part of those lands to B. and C, coniirming all his devises and bequests in favour of his wife ; the House of Lords held, that she ought not to be restrained from resorting to this part of the lands for her annuity, and reversed a decree for an injunction made by the Court of Exchequer (2). 11. Under the 4th section of the 5 Vict. c. 5 — which provides " That it shall be lawful for the Court of Chancery, upon the ap- plication of any party interested, by motion or petition, in a sum- mary way, without bill filed, to restrain the Governor and Company of the Bank of England, or any other public company, whether incorporated or not, from permitting the transfer of any stock in the public funds, or any stock or shares in any public company, which may be standing in the name or names of any person or persons, or body politic or corporate, in the books of the Governor and company of the Bank of England, or in the books of any such public company, or from paying any dividend or dividends due or to become due thereon ;" — an injunction may be obtained in a summary way to restrain the payment of a government annuity. And where, by articles entered into previously to the marriage of Mr. and Mrs. W., it was agreed that an annuity of £100 a year, payable by the Commissioners for tlie Eeduclion of the National Debt, to which the lady was entitled for her life, should be settled upon her for her separate use, and Mr. W. had declined to carry out these articles, and it appeared that Mrs. W. had filed a plaint against him to compel him to do so, and had given notice thereof at the office at which the annuity was payable, but was informed that the annuity would still be payable to her husband, notwith- standing the plaint ; the Master of the Eolls (Lord Eomilly) said it was clear that this annuity was within the section, and that the (1) Manly Y.IIawJciiif, ID, & W'ld. (2) Hccves v. Sewenlmm, 2 Bidg. 363. P. C. 11 ; A^ern. & Scriv. 482. JUDGMENTS. 185 applicant might take an injunction, on giving an undertaking as Part I. Chapter I to damages in the usual way (1). Sect. 18. Sect. 19. — Judgments. 1. Although the 1 & 2 Vict. c. 110, s. 13, declares that a judg- Courts of ment shall not be enforced for a given period, yet a Court of Equity gtrglin^thr will in the meantime restrain trustees from paying to the debtor, paynien' of Tjiis rents to a tenant for life, the income arising from the property affected the debtor, until the charge can be enforced. And where a judgment creditor ment cun be of a tenant for life of real estate had sued out an elegit, but was y^g^and "^^""^ unable to obtain payment of his demand as the estates were vested in trustees ; upon a bill by the judgment creditor asking for the aid of the Court to obtain satisfaction of his demand, the Court held, that he was entitled to an injunction to restrain the trustees from paying the rents and profits of the estates to the tenant for life until the creditor was in a position to obtain the benefit of the judgment (2). A judgment creditor who has sued out an elegit without effect is entitled (independently of the 1 & 2 Vict. c. 110) to equitable relief, though the year from entering up the judgment has not expired. But qusere, whether he is entitled to relief under the statute as regards the leaseholds of the judgment debtor before the expiration of the twelve months ; however, . the Court will. The Court within the twelve months, interfere and protect the property ^g property charged by a judgment from destruction (3). chiirged by a destruction, (1) Ex parte Watts, 19 W. B. 400. writ of execution shall affect any land (2) Yescombe v. Landor, 5 Jur. (N. as to a purcliaser or mortgagee, although S.) 780. execntion shall have issued and have (3) Partridge v. Foster, 34 Beav. 1 ; been registered, unless such execution vide 23 & 24 Vict. c. 38, s. 1, which shall be executed and put in force within declares that a judgment shall not be a three calendar months fiom the time charge upon land, so as to affect pur- when it was registered. And by the chasers or mortgagees, unless the judg- - 27 & 28 Yict. c. 112, s. 1, it is declared ment creditor shall issue execution and that no judgment entered up thereafter duly register the writ of execution shall affect any land until such land before the conveyance or mortgage and shall have been actually delivered in the payment of the purchase or mort- execution by virtue of a writ of elegit, gage money ; but that no judgment or or other lawful authority, and the writ 186 JUDGMENTS. Part I. Chapter I. Sect. 19. Equity will set off one judgment at Law against another. 2. Where A., as assignee of B., a bankrupt, gave an undertaking to C, who was the mortgagee of one farm, and was under a con- tract to purchase another farm, both the property of the bankrupt, and who had a distress upon the mortgaged premises, that if the distress were withdrawn he would pay to C. the arrears then due in respect of the mortgage out of the effects on the premises, and C. withdrew the distress accordingly; and afterwards the bank- ruptcy was annulled before A. had obtained possession of any part of the bankrupt's effects, whereupon C. brought an action on the undertaking and recovered judgment against A. personally ; Lord Chancellor Brougham held, on a bill filed by A. against C, to which B. was no party, that A. could have no relief in Equity against the judgment at Law ; and that he was not entitled, as against C, to claim repayment of the sum thereby recovered out of the price which 0. had contracted to pay for the other farm, on the ground that C.'s rights as mortgagee ought not to be hung up on account of any difficulties that might arise as to the title to the premises agreed to be purchased (1). But although a mortgagee, as such, has a right to all his remedies, and therefore to an action at Law, yet where, by contracting to purchase the mortgaged premises, he has made his character of mortgagee conditional, depending on whether he is purchaser or mortgagee, the Court will enjoin him from proceeding at Law, putting the mortgagor, however, upon terms (2). 3. In Williams v. Davies (3) the Court refused a motion to dis- solve an injunction (granted on affidavit and certificate) to restrain execution on a judgment obtained by the defendant against the plaintiff, the latter having obtained a judgment to a greater amount against the former. In this case A. had obtained judg- ment at Law against B. for £600 and costs, and on a return to the writ of execution of nuUa bona, distrained for the amount. After- sliall have been duly registered, but that the judgment creditor to whom land has been actually delivered in execution shall be entitled forthwith to obtain from the Court of Chancery, upon petition in a summary way, an order for the sale of his debtor's interest in the laud. (1) Pell V. Stephem, 2 My. & K. 334 ; and see this case, 4 Tyiw. 6 ; 1 Coop. temp. Brough. 266. (2) Drummond v. Pigou, 2 My. & K. 168. (3) 2 Sims. 461. JUDGMENTS. 187 wards B. brought an action against A. and the sheriff for irregn- Pabt I. Ohapter T larity in the distress, and recovered £600 damages ; B. owed other seot. 19. moneys to A., but was insolvent, and was about to tax his costs and issue execution against A. ; and owing to the forms of proceeding at Law the judgment of A. could not be set off against the damages obtained by B. Under these circumstances Vice-Chancellor Sir L. Shad well granted an ex ^arte injunction to restrain B. from suing out execution, A. undertaking to satisfy the lien of B.'s attorney ; and upon B. afterwards moving to dissolve. His Honour, without hearing counsel against the motion, refused the motion with costs ; and said it appeared to him that the case was the same as if B.'s (the defendant's) judgment had been paid, and he had been prbceed- ing at Law to take A. (the plaintiff) in execution, and that the judgment was, in point of fact, satisfied ; and that although the Court of King's Bench would not, in point of form, allow A.'s judgment to be set off against B.'s, yet that it was right that it should be done in Equity. 4. Although in Whitworth v. Gaugain (1) it was treated as a matter of doubt, whether a Court of Equity would interfere in favour of an equitable mortgagee against a tenant by elegit, who had got possession of the land without notice of the mortgage under a judgment obtained against the mortgagor subsequently to the mortgage ; yet in the same case (2) it was subsequently held, that an equitable mortgagee of lands is entitled in Equity to enforce his charge in priority to a creditor of the mortgagor, who, without notice of the equitable mortgage, has subsequently thereto re- covered judgment against the mortgagor, and obtained actual possession of the lands by writ of elegit and attornment of the tenants. 5. A Court of Equity has no jurisdiction to relieve a plaintiff against a judgment at Law where the case in Equity proceeds upon a ground equally available at Law and in Equity ; but the plaintiff must establish some special equitable ground for relief (3). In this case the question raised was, whether a plaintiff in Equity, who had pleaded a set-off in an action at Law and failed, could sustain a bill, without a special equitable ground, for an account (1) Cr. & Ph. 325. (2) 3 Hare, 416. (8) Harrison v. Nettleship, 2 My. & K. 423. 188 JUDGMENTS. Part I. relating to tlie same transactions in respect to which he had Sect. 19. pleaded a set-off ; and the Master of the Rolls (Sir J, Leach) decided against the plaintiff, and dismissed the bill with costs. 6. A person who, without consideration, confesses a judgment for the purpose of thereby withdrawing his property from the demands of his creditor, e.g., the creditors of a joint stock com- pany in which he was a shareholder, has no equity for an injunc- tion to restrain the conusee proceeding to levy the amount of the judgment, although it never was used for the purpose for which it was confessed (1). No sale of 7. Where a judgment creditor had issued and lodged with the interest hi sheriff a Writ of ji. fa. in execution of his judgment, and in obe- leasehnids dience thereto the sheriff had seized and sold certain goods and iiuder 27 & 28 _ ° Viet. c. 112. chattels of the debtor, and took possession of a leasehold mansion- house to which the debtor was equitably entitled for his life, and the writ was duly registered ; on a petition under sect. 4 of the Judgment Law Amendment Act (27 & 28 Vict. c. 112) for an order for sale of the debtor's equitable interest in the premises, the Master of the Eolls (Lord Eomilly) held, that, inasmuch as the judgment creditor had acquired no charge on the land under 1 & 2 Vict. c. 110, s. 13, and therefore could not, on that statute, come here to ask the Court to sell, and that as the judgment creditor could not take an equitable leasehold in execution under &ji.fa., he could not, under that writ, get actual possession of the land ; he was not entitled, under the 27 & 28 Vict. c. 112, to petition the Court for a sale of the premises (2). 8. The 7th and 9th sections of the Eailway Companies Act, 1867 (80 & 31 Vict. c. 127), give only an interim power to the Court with respect to proceedings by creditors between the filing and the inrolment of a scheme of arrangement. After the inrolment the company cannot obtain an injunction either against outside creditors or creditors bound by the scheme except upon a bill filed ; and where a debenture holder had obtained judgment at Law before the passing of the Act, and had issued execution after (1) M'Curdy v. Martin, 5 Ir. Eq. 343; v. Guest v. Cowhridge Bailway Eep. 515. Compiunj, L. E. 6 Eq. 619, 622 ; Se (2) Ee Duke of Newcastle, Ex parte Cowhridge RaiJiray Company, L. E. 5 Fadwick, L. E. 8 Eq. 700 ; 18 W. E. Eq. 413. H ; 39 L. J. (Cb.) 68 ; 21 L. T. (N. S.) MORTGAGES. 189 the inrolment of a scheme of arrangement under the Act by which Part i. all debenture holders were bound, and the creditor moved for gj,,Q,p ^g ' leave under the 9th section to levy the execution, and the com- pany moved, under the 7th section, to restrain him and the sheriffs from further proceedings ; both motions were dismissed with costs ; but the Lord Justice Sir G. M. G-iffard said the company must have an opportunity of filing a bill, and that if a bill had been filed he should probably have granted an injunction (1). Sect. 20. — Mortgages {including Chattels real). 1. Where a covenant in a mortgage deed not to exercise the Court (here) power of sale except after three months' notice was followed by a to restrain proviso that the purchaser should not be affected bv the absence mortgagee "■ '■ •' selling Wilh.- of such notice, and that the remedy of the mortgagor should be by out giving an action for damages, the Master of the Kolls (Sir J. Eomilly) ™o°ticer°°' held, that the Court had no jurisdiction to restrain the mortgagee from selling without giving the required notice (2). 2. "Where a trespass had been committed on plaintiffs' (lessees) Mortgagees mine, and an aircourse and level roads made by one of the defen- ^tin^'ah!^ dants (mortgagor) through it underground to connect adioining <'™''^<' ''"'^ ... 11,. roads obtained collieries in mortgage to other defendants, and large quantities of by trespass the plaintiffs' coal had been thereby fraudulently gotten and re- ° ^°'^ °"°"' moved without their knowledge ; Vice-Chancellor Sir W. P. Wood held, that the defendants, the mortgagees, could not be allowed to retain the user of the aircourse or roads, although the continuance of that user might be no special injury to the plaintiffs ; but that, not having themselves made such apertures, they could not be ordered to fill them up ; and an injunction was granted to restrain the defendants from digging coals and carrying on any workings under the laads comprised in the plaintiffs' lease, and from con- tinuing to use the aircourse and roads, and to allow the plaintiffs access through their pits, in order that the plaintiffs might stop and close the said aircourses and roads (3). ' (1) In re Potteries, Shrewsbury, and (2) Prichard v. Wilson, 10 Jur. (_N. North Wales Eailwuy Company, L. R. S.) 330 ; 11 L. T. (N. S.) 437. 5 Ch. 67. (3) Powell v. Allen, 4 K. & J. 343. 190 MORTGAGES. Part I. 3. Where aa institution had been incorporated by royal charter Sect. 20. ^^^ t^^ed of settlement, authorizing the council or managing body to hold lands, tenements, or hereditaments, and to sell, grant, demise, exchange, and dispose of the same ; but no sale, mortgage, incumbrance, or other disposition of any such lands, tenements, or hereditaments was to be made except with the approbation and concurrence of a general meeting of the proprietors of the corpo- ration ; and at a general meeting of the proprietors the council had been authorized to mortgage the property of the corporation for £25,000 ; upon a bill filed by a proprietor on behalf of himself and all other proprietors of the corporation, except the defendants, the council, and mortgagees of the freehold and personal property, praying an injunction to restrain the sale of the property of the institution by the defendants, and to restrain the defendants from further proceeding with a foreclosure suit, and from carrying into effect any order for sale made therein, and from conveying to any purchaser any portion of the property of the institution, Vice- Chancellor Sir E. T. Kindersley held, that the council had no power to grant a mortgage with a power of sale, but that the plaintiff was precluded, on the ground of acquiescence, from his right to an injunction (1). Machinery, 4. Where J. and Gr., being in trade as co-partners as copper connection™ roHing manufacturers, had purchased the fee simple of an old with land, j^jii ajj^ fitted it up with greatly improved and altered machinery unites the pro- r o j r j peity in tlie and gear, and they then had mortgaged the property to the &o., with the plaintiff by the description of " all that land, mills, and factories, fand^and a ^^*^ ^^®° ^'^ *^® steam-engines, boilers, mill-gear, millwi-ight work, conveyance of and machinerv then or thereafter to be fixed on the said land," the land •' passes the with a covenant not to remove any part without permission of the mortgagee, and afterwards J. and G. became bankrupts; Yice- Chancellor Sir W. P. Wood, on a bill praying the usual fore- closure decree and an interim injunction, which had been granted, held, as between the plaintiffs (the mortgagees) and the de- fendants, mortgagor's assignees in bankruptcy (who had advertised for sale all the machinery upon the lands comprised in the mort- gage), that J. and G-. having placed the machinery and chattels in connection with the land while seised of the land in fee had (1) Clarke, v. Bnyal Panopticon, 4 Drew. 26. MOETGAGES. 191 united the property in the chattels with the property in the land, Part I. and that therefore a conveyance of the land itself alone would s^ct. 20. ' pass all chattels so connected with it, and that the conveyance to the mortgagee passed every description of chattel connected with the land in any manner further than by its own weight ; but that such chattels as were on the premises merely resting by their own weight, did not pass ; but as to one class of machinery, which consisted of a portion very massive, but yet moveable on, or entirely removeable from, a cast-iron bed firmly let in the ground, and to which bed the moveable portion was attached by clumps or screws, the bed being admitted to be part of the machine, the Yice-Chancellor held, the whole machine, the moveable part as well as the bed, was a fixture, having been there at the date of the mortgage, although actually removed by the assignees in bankruptcy before the bill was filed; and, semlle, it makes no difference whether the interest of the person aliening is a fee simple or a term of years only (1). And the Vice-Chancellor Fixtures pass- also held, that the fixtures passing by the grant of the land, the g^fn/of the Eegistration of Bills of Sale Act (17 & 18 Vict. c. 36) could have ^J^^^^^^ .^_ no application ; but that where part of a machine is a fixture, and tration of another and essential part of it is moveable, the latter also will Act. be held " a fixture ;" and finally, that the principle upon which the If part of a rule of law, that fixtures pass with the soil, is relaxed in favour of fixture and^ trade, has no application where the parties who affix the machinery *ii°*f3:and ' rr sr j essential part are themselves owners in fee of the soil (2). is moTeable, the latter also held a fixture. 5. Where a mortgagee had a power on default of payment, on Mortgagees' notice, to sell the premises, together or in lots, by private contract norrestralned or public auction, subject to such special or other conditions of sale as (l^ere). he might think fit, and he proceeded to a sale after ample notice, but under very special conditions of sale, directed against certain defects of title which the mortgagor himself had, since executing the mort- gage, insisted upon ; Vice-Chancellor Sir W. P. Wood refused to interfere to prevent the sale under such stringent provisions (3). 6. Where by a deed, the amount due to the first mortgagee was a party con- (1) Mather v. Fraser, 2 K & J. 536 ; (2) lb. 2 Jur. (N. S.) 900 ; 25 L. J. (Ch.) 361 ; (3) Kershaw v. Kalow, 1 Jur. (N. S.) v.Waterfall v. Penistone, 6 B. & B. 867 ; 974. 3 Jur. (N. S.) 15 ; 26 L. J. (Q. B.) 100. 192 MOETGAGES. Part I. Confirmed to him by the subsequent incumbrancers, and he thereby Chapter T Sect. 20. agreed not to execute his power of sale for a limited time ; the testiiiK the M^aster of the Rolls (Sir J. Eomilly) held, that a party who by his amount bill Contested the amount so admitted to be due to the first mort- admitted by . , . . other inoum- gagee could not take advantage of the stipulation in the deed to first incum- ^^^ to sell Within the time, and refused an injunction to restrain BothTe the ®"°^ ^^^® ^"'^)" ^^^ where a puisne incumbrancer had offered to benefit of a pay off the first mortgagee, and that being declined, he had filed a stipulation by , .,, ^ i .^ i • first incum- bill to compel a transfer ; the first mortgagee, having afterwards oonSderation proceeded to sell the property, was restrained by the Master of of the admis- ^j^g Eolls from transferring the first mortgage and parting with exercise a the legal estate and title deeds. Sir J. Eomilly said, that he con- But fii-st mort- ^^''''^^^ in the defendant's argument "that if a plaintiff came gagee re- forward on a bill to redeem, and asked to restrain a transfer, he strained sell- ing where a was bound to make out a prima facie case, and could not, as a brancer'ha™" stranger, say, ' I am entitled to redeem, and restrain the transfer Mm off,*° ^^ °^ *^® ^^S^^ estate.' That was all that was decided by James v. Biou (2), and to that extent he concurred. But he was of opinion that the plaintiff had made out a prima facie case, and that she was an incumbrancer on the property, but in what rank, or who were the persons entitled to redeem or foreclose, he expressed no opinion." And he said, that " if he were to say, that pending the suit the defendants might sell the property under the power of sale, and make a conveyance and transfer of the legal estate, he would, on that motion, be determining that the plaintiff had no right ; for if she went on and established her right to redeem, it would be impossible for her to obtain any benefit at the hearing, as the purchaser under the execution of the power would get a title to the estate ;" and that " he was of opinion that, under the circumstances of this case, the principle of protection of the property pending litigation ought to be applied, so as to induce him to restrain any dealing with the legal estate, until he could determine the rights " (3). 7. Where A. and his incumbrancers, B., C, and D., joined in the appointment of a receiver, who covenanted to keep down the incumbrances, according to their priorities, and pay the surplus to (1) CocM V. Bacon, 16 Beav. 158. (2) 3 Sw. 237. (3) Mhodes v. BucMmxI, l(i Bear. 212. MOETGAGES. 193 A. ; the Master of the Eolls held, that a subsequent mortgagee Part I. Chapter T from A. could not sustain a bill against the receiver and A. for an seot 20. account of the rents so far as related to the interest of A., and as claiming under him ; and an injunction against paying the surplus to A. in the absence of B., C, and D., on the gi-ound that the receiver could object to being harassed with a double account, and that he was the agent of all the incumbrancers as well as of A., and none could make him account without having the others present (1). 8. Where J. B., the incumbent of B. and M. H., on the 24th of January, 1851, had given to the plaintiffs a warrant of attorney to secure £300 and interest ; and on the same day J. B. had entered into an agreement with the plaintiffs by which, in consideration of the £300 then lent to him, he agreed, upon request, to assign, by way of mortgage, eight acres of underwood in the parish of M. H., and all the rent-charges of the parishes of B. and M. IE., for the repayment of that sum and interest ; and the plaintiffs on the following day entered up judgment on the warrant of attorney, and registered the same; and on the 15th of November, 1851, J. B., by indenture, after reciting that he had requested the plain- tiffs to allow him to receive the rent-charge of B. and M. H. for his own use, which they agreed to do upon having the security there- inafter contained, in consideration of the sum of money lent to him in January, assigned to the plaintiffs the eight acres of underwood, and all his furniture and other effects belonging to the house in his occupation in the parish of B. ; and in December, 1851, A. D. had entered up and registered a judgment against J. B. for £8000 and costs, and sued out, in 1852, a writ of seques- trari facias, upon which he was nominated by the bishop sequestrator, and put in possession of the rent-charge of B. and M. H. ; and the plaintiffs, not being paid the £300 at the time appointed, in February, 1852, by virtue of a power of sale, sold the underwood and the furniture and effects, and with the proceeds paid off a portion of their debt; on motion for a receiver to collect the rent-charge of B. and M. H., and for an injunction to restrain A. D. from proceeding with the writ of seq^uestrari facias, and from receiving the rent-charge under it, Vice-Chancellor Sir (1) Ford V. BacTcham, 17 Beav. 485. 194 MOETGAGES. Pabt I. J. Stuart held, that the motion must be refused ; first, on the ^Sect™20^' grouud that where there were several equitable incumbrancers, one of whom by greater diligence, though later in date, got in aid of his equitable incumbrance a legal right, the Court would not disturb him in his possession ; and, secondly, on the ground that by the contract entered into by the indenture of the 15th of Noyem- ber, 1851, the plaintiffs were estopped and concluded from getting possession of the rent-charge (1). Mortgagee of 9. Where, in 1830, W. had conveyed certain real estates to Btrlined'exer- ^- ^^^ '^■' ^^^ their hcirs, by way of mortgage for securing £400, cising power ^^1]^ ^ power of Sale in case of default, and W. died in 1839, of sale, whicn '■ _ he had having devised the same property, subject to certain charges do unless Created by his will, to his sons A., B., and C, as tenants in common testeto'also i" fee ; a°'i i^ ^839, after W.'s death, B. conveyed all his one-third redeemed a share under his father's will to E., H., and N. by way of mort- mortgage _ j j made by a gage, with power of sale in case of default ; and E., the survi- testator. ving mortgagee of the deed of 1^30, threatened to sell under tlie power in that deed unless A., the acting executor of W., would redeem both mortgages ; upon a bill by A. to redeem, and for an injunction, the Court, upon motion, on payment into Court by A. of the money due upon the first mortgage, restrained K. from selling under the power contained in the deed of 1830, and from conveying the legal estate in the one-third share of B. com- prised in the mortgage of 1839 (2). The case of 10. The principle upon which the Court restrains persons filling mortgagee "is ^ fiduciary character from having any dealings for their benefit, not withm the (jges not apply to the case of mortgraofor and mortgagee, nor is it principle ir J o o So' whicii pre- SO applied by the Court (3). &e., from deal- H- After foreclosure and sale an action by the mortgagee for o"w/benefit^ the balance opens the foreclosure ; and, therefore, the mortgagee An action should have time to get back the estate and tender a re-convey- ciosure'and auce, and the mortgagor to redeem ; but the mortgagee having sale ruopena taken possession a considerable time before, and the balance being the foreclosure -^ —but (here) inconsiderable, the Court (Lord Eldon, upon an interlocutory ap- Btrained. plication, and Lord Erskine at the hearing), on a bill by the mort- gagors, decreed a perpetual injunction to restrain an action on a (1) Bates V. Brothers, 17 Jur. 1174. (N. S.) Ch. 105. (2) Whitworth v. Bhodes, 20 L.J. (3) Ddbsm v. lowd, 8 Hare, 221. MOETGAGES. ] 95 bond given as a collateral security (1), overruling Lord Thurlow's Part I. opinion in Toohe v. Hartley (2), where, the representatives of a seot. 20. mortgagee, after foreclosure, having sold the mortgaged premises, and the amount not being suEBcient to pay the debt, had brought an action on the bond, the Court dissolved an injunction to restrain their proceeding. 12. Where S., in consideration of a loan of £10,000 from G., assigned to the latter two mortgages, which he held upon an estate belonging to N., and executed another mortgage of an estate of his own, by way of further security ; and afterwards, on N.'s mortgage debts becoming due, S. brought an action against him on the covenants in his mortgage deeds, which G. filed a bill to restrain ; on a motion before the Lord Chancellor (Lord Cotten- ham), to discharge an injunction which had been granted by the Vice- Chancellor, the Lord Chancellor held that it ought not to have been granted except upon the terms of the plaintiff re-con- veying S.'s mortgage, and releasing him from his mortgage debt ; and the plaintiff now declining these terms, and S. undertaking that the sum to be recovered in the action should be paid to the plaintiff, the injunction was dissolved ; Lord Cottenham observ- ing that G. could not prevent S. from realizing his debt from N., and at the same time hold him liable for his own debt ; and that S. was responsible to G. for his own debt, and, as such, had also an interest in the money to be recovered in the action (3). 13. Where a mortgage of real estate, with a power of sale, had Mortgagee ia been made, and a judgment was entered up by a creditor against mortgagor"'^ the mortgagor, who was subsequently imprisoned, and discharged "?4 *!'°^^ under the Insolvent Debtors Acts, and the mortgagees, whilst the under him of ,,,,,. , , , surplus pur- mortgagor was m prison, sold under their power, and the purchase- chase-moneys money was invested in the names of the mortgagor and the mortgaged^^ assignees ; at the suit of the judgment creditor (being a bill by PioP"''?- him under the 1 & 2 Vict. c. 110, claiming the benefit of his judgment against a subsequent insolvency of the debtor), the mortgagor and assignees were restrained from parting with the surplus of the purchase-money, on the ground that the judgment (1) Perry v. Barker, 8 Ves. 527 ; 13 (3) Gvrney v. Seppings, 2 Ph. 40 ; Ves. 198. 1 Coop. 0. 0. 12. (2) 2 Bro. C. C. 125. O 2 196 MOBTGAGES, Part I. creditor had an equitable interest in the money in priority over the Sect. 20. ' assignees, and that the mortgagee is a trustee for the mortgagor and those claiming under him of the surplus that may remain after the sale of the mortgaged property (1). Mortgagee not 14. The Court will not grant an injunction to restrain a mort- exeicising gagee from selling under a power in the mortgage deed ; but it is —Trustee will otherwise where there is a trustee for sale, and he proceeds be restrained precipitately, and without notice to both parties (2). cipitately and 15. The Court will not, on the application of a mortgagee out of notice. possession, restrain the mortgagor from felling timber growing upon the mortgaged estate, unless the security is insufficient ; if the security is sufficient, the Court will not grant an injunction merely because the mortgagor cuts, or threatens to cut, timber. There must be a special case made out before this Court will inter- pose. But the Vice-Chancellor Sir J. Wigram said " the difficulty he felt was in discovering what was meant by a ' sufficient secu- rity ;' " and he said, "he thought the question which must be tried was, whether the property the mortgagee took as a security was sufficient in this sense — that the security was worth so much more than the money advanced — that the act of cutting timber vias not to be considered as substantially impairing the value, which wr.s the basis of the contract between the parties at tiie time it was entered into " (3). And so in Hippesley v. Spencer (4) it is held that an injunction to restrain a mortgagor from cutting timber will not be granted unless, without timber, the security is scanty or insufficient ; and in Ushorne v. Usborne (5) a mortgagor was restrained from committing any waste or spoil on an allegation that he had cut down several trees, and threatened to cut down more, by means whereof the mortgage security would be lessened. Mortgagor not But a mortgagee is entitled to an injunction to restrain a mort- ing timber g^gor in possession from cutting down timber, if the land without rneuffident^^ ^*' ^^ * Scanty security, and it may be extended to cutting down and so of cut- underwood contrary to the usual course of husbandry, but not to ting down underwood underwood generally, although the mortgagor is insolvent (6). contrary to usual course (1) Robinson v. Ilcdger, 13 Jur. 846 ; (4) 5 Madd. 422. of husbandry, I7 Sim. 183. (5) Dick. 75. (2) Anon. 6 Madd. 10. (6) Humphreys v. Harrison, 1 J*c. (3) King v. Smith, 2 Hare, 239, & W. 581. 243-4. MOETGAGES. 197 16. It is no ground for restraining a mortgagee from enforcing Part i. his security at Law, that he has contracted to buy from the mort- sect. 20. gagor another estate from the purchase-money, of which the mortgage debt is to be deducted (1). 17. Where a mortgagee had commenced an action against the Mortgagor , , iT i 11 i 1 entitled to re- mortgagor to recover the mortgage money upon a collateral atraiu action security, and the mortgagor had obtained an injunction against "?™ paynient ■" o t> J o 01 mortgage the action upon the terms of his paying into Court tlie sum which money due ^ I. J & j^jQ Court- appeared to be really due upon the mortgage, and the sum was and mort- accordingly paid in and invested in stock, and that stock was resortedTo tSe afterwards blended with other stock purchased with another gum C""*^ '*™'^s '^ _ ii'om a sale of of money paid into Court in the same suit, and the mortgaged pro- tlie mortgage perty having been afterwards sold under a decree in a different mortgagor ia suit between the mortgagee and mortgagor, and the mortgagee gj^ig^p^j!^"^* became the purchaser, he was allowed to deduct from the purchase- cl^^'ed with ^ the money money the amount due to him on the mortgage ; the Lord Chancellor paid in, Lord Cottenham held that the mortgagor was entitled to receive the accumu- back the stock which had been purchased with the sum paid in by ^^*®j '^'^^" him upon obtaining the injunction, and also the accumulated divi- dends which had accrued on the stock, on the ground that there were two funds for the mortgagee to resort to — the property pledged and the money which represented the personal liability — and that the mortgagee having elected to take payment out of the property pledged, thereby released the fund which represented the personal liability (2). 18. A receiver in a mortgage cause will not be permitted to Eeeeiver in bring an ejectment on the title against a lessee of the mortgagor ™°[sf n|t per- after mortgage executed, where the lessee has been in possession fitted (here) „ . . -"^ to bnng eject- for twenty years, and where the consideration of the mortgage has meut against been impeached, and the mortgagee has not proceeded to foreclose gagor afior"^ ' his mortgage, and no account has been taken (3). mortgage 19. A mortgagee has a right to proceed on his mortgage and Mortgagor bond at the same time ; but the mortgagor shall not be obliged to mmtga-Ti^n pay upon his bond unless secure of his title deeds being delivered *° ^°*'"° "P™ ° a bond unless up ; and where a mortgagee having possession of the mortgagor's secure of delivery of his (1) Pell V. Stephens, Coop. temp. (2) Tayhr\.Waters,lM.y. &Ci:266. Brough. 266; 2 My. & K. 334; 4 (3) Martin v. Walker, Sau. & So. Tyrw. 6. , 139. 198 MOETGAGES. Part I. title deeds, lodged them with an attorney, who claimed a lien on SiiCT. 20. them for business done for the mortgagee, on an application of nioTli *''® mortgagor, the mortgagee was restrained from proceeding at deeds -and Law upon his collateral security (1) ; and in this case, there being no heir to re- no heir 01 the mortgagee wqo could re-convey, an executor of a tor restrdned' mortgagee was restrained from enforcing payment, and the money suing, and ^as ordered into Court. money oidfiied into 20. A mortgagee in fee may cut timber, &c., at Law, but not Morfgflgee in i^ Equity, unless his mortgage is defective (2). fee cannot, in 21. Where the mortgagee, on her marriage, had settled the timber unless mortgaged estate on herself for life, remainder to the issue of that defective. marriage, and the mortgagor brought a bill to redeem, and the Mortgagor mortgagee omitted setting forth the settlement in her answer, and redeeming m "^ "^ ° a suit quieted the mortgagor had a decree to redeem, and paid the mortgage- against issue money ; and afterwards the issue of the mortgagee brought an a"settiem'ent^'^ ejectment on the settlement and recovered the mortgaged premises ; by mortgagee i}^q mortgagor, Upon a bill to be relieved against the recovery at subsequent to ii • i ii, mortgage. Law, and to have the estate m law reconveyed, and to be quieted in possession, was relieved, having paid his money pursuant to the decree, and having been in no fault ; and the Court decreed the defendant (the issue) to convey, and the plaintiff in the meantime to enjoy against him, and all claiming under him, and a perpetual injunction against the judgment (3). 22. Where the Deptford Pier Company, having contracted for the purchase of certain lands, applied to W. T. P. to lend them the money to complete their contract, which he accordingly did, and conveyances were made to W. T. P., by way of mortgage, for securing the repayment of the sum advanced, and subject thereto in trust for the company ; and W. T. P. afterwards obtained judg- ment, and was about to get possession under an elegit ; and the mortgagees of the tolls, rates, and duties, who had advanced moneys to the company on the securities of certain mortgage debentures issued by the company, in conformity with a power contained in the 16th section of their Act, filed their bill against the mortgagees of the land and the company for the purpose of (I) Schoole V. Sail, 1 Sch. & Lef. (2) WitliringtonY. Cooteswar(h,^A. 176, Ch. Ca. 31. (3) Chapman v Ditvcomhc, 2 Vein. 1-12. MOETGAGES. 199 having the priority of such debentures declared, and praying an Pabt i. injunction to restrain the mortgagees from taking possession of the seot. 20. lands of the company, and for a receiver ; the Court, upon demurrer, held, that the plaintiffs at Law were right in using the powers the Law gave them, and that there was no equity in the mortgagees of the tolls, rates, and duties as against the mortgagees of the land, and allowed the demurrer with costs (1). 23. Where the owner of a plot of land granted a lease of it for ninety-six years to P., who mortgaged to the lessor (through a trustee) to secure £2100, and future advances ; and the mortgage deed containing a power of sale, and default being made, the pro- perty was contracted to be sold to Gr. under the power, and the contract stipulated for the completion by G. of a house on the land by a fixed day, the lessor to deliver an abstract of title, commencing with the lease, and G. to pay as the purchase-money £250, and interest at £5 per cent., to perform the covenants, pay the costs of the agreement, and not to inquire into the right of the lessor to exercise the power of sale, or whether anything was due on the mortgage ; and the lessor did not deliver the abstract, but Gr. took possession, furnished, and let the house, and paid interest, until he heard that judgments were outstanding against the mortgagee ; the lessor died, and P. paid off the mortgage, took a re-assign- Mortgagor ment, and brought two actions, one of ejectment, and the other mra-tga °e debt for the interest aerainst Gr. ; on a bill by G. to restrain the actions, ^°4 taiing re- ° "^ . assignment, is and for specific performance of the contract, Vice-Chancellor Sir bound to carry E. T. Kindersley made a decree. with the general costs of the suit mortgagee against P., inasmuch as he wrongly resisted the right, except under^the the costs of the action as to interest, and the costs of the executors P"^er of sale. of the lessors. The Vice-Chancellor said that the plaintiff was entitled to the same right to have the contract completed against P. as he had against the lessors or his executors, with a conveyance on payment of £250 with interest (2). 24. On a bill by a judgment creditor of a mortgagor, the Court Court will, at granted an injunction to restrain the mortgagees, who were about to ment cred^or sell under their power, from paying the surplus to the mortgagor (3). ''^^j^^™ ™?''*- (l.) Perkins v. Frikhard, 13 Sim. (2) QutteridgeY. Fletcher, 13 W. R. 277 ; 2 Eailw. Ca. 95 ; 12 L. J. (N. S.) 540. Ch. 212; 7 Jur. 29. (3) Thornton v. Finch, 4 Giff. 515, 200 MORTGAGES. Part I. Chapter I. Sect. 20. 25. Wbere, by a deed of arrangement, indorsed upon a mortr gage deed, which contained the usual power of sale upon notice, Bin-plus upon" *'^^ mortgagee was appointed receiver of the mortgaged premises, side under without prejudice to his rights and powers under the mortgage mortgagor, deed ; and it provided, that upon the mortgagee giving three straiife'^exOT-" ^^^onths' notice to the mortgagor to put an end to the trusts, he cininn; power should be at liberty to exercise the power of sale and other powers having given contained in tlie mortgage deed ; upon motion, the mortgagee note to deter- ^Q-s restrained from exercising his power of sale, he not having trusts of a deed gi^^^ notice to determine the trusts of the deed of arrangement (1). indorsed on 26. On a bill by a mortgagor to restrain a mortgagee from en- tlie mortgage. . . •' " ° ° ° The Court forcing his power of sale under the mortgage-deed, and where no "atlon "/^'^" ^^8^6'^' ^^^ been put in, but it was alleged by the bill that a breach breach of trust of trust had been committed by the mortgagee, the Court, on — and no . . . . -i i ot i- i answer by motion, granted an injunction until the filing of the answer or iesfi'Snir^ie further order. (2) o°f'' th^"^^™ ^"^^ ■^^^ assignee of a mortgagee cannot stand in any different order. character, or hold any different position, from that of the mortgagee niort^gee°i3 liimself, although the mortgagor may not have been a party to tbn^S'in'rT- *^® assignment ; and it is also clear that every mortgagor has the gagee— Every right to have a reconveyance of the mortgaged property upon charged with payment of the money due upon the mortgage, and that every veyance^pon" mortgagee is charged with the duty of making such reconveyance payment of upon such payment being made. This, indeed, being no more than the necessary result of the relative positions of the parties. The mortgage the mortgage being only a security for the debt. Where, there- be severed fore, a mortgagee, having besides the property mortgaged certain ritTand pend- P^oiiiissory notes made by the mortgagor as collateral security for ing suit to liis debt, transferred the mortgage without assigning the collateral action on a securities, it was held, that he was not entitled to sever the debt security was from the security ; and an injunction granted against his proceeding restrained. ^|. j^^^^ ^^ recover the amount of one of his notes, pending a suit instituted by the mortgagor to redeem and to settle the equities of the parties, was sustained. (3) 28. A mortgagee will be restrained by injunction from pro- (1) Oill V. Newton, 12 Jur. (N. S.) (2) Merest v. Mtirray, 14 L. T. 220, (N. S.) 321. (S) Walker v, Jones, Law Rep. 1 V. C. 50. MOETGAGES. 201 ceeding at Law to sell the equity of redemption (1). So, where Part I. property was under mortgage to its full value, a subsequent judg- Seot. 20. ment creditor was restrained by injunction from selling the premises, and the mortgagees were ordered to foreclose with all possible de- spatch (2). A mortgagee will be enjoined against a sale under a Mortgagee re- power in the mortgage, where the homestead right is not released (3). ing'undeTa" power where homestead not released. 29. An injunction should be granted, until a hearing, to restrain Interlocutory the sale of lands and farming-stock alleged to be conveyed to the de- granted°to re- fendant by a deed absolute on its face, but intended only as a mort- ]^*n"g^a^nd^ °^ gage, and put in its present form through his fraud and oppression, farming stock The answer denied the fraud, and any agreement for redemption, deed absolute but contained admissions which, taken in connection with the bill, aliened to be furnished probable ground of belief in the plaintiff's allegations (4). i^^tended as a r ^ r D \ / mortgageonly. 30. An injunction will not be granted to restrain a mortgagee where he advertises the mortgaged property for sale, " to the full extent of the powers derived to or by him under and by virtue of" the mortgage deed, " and not otherwise " (5). 81. Where a conveyance of land is obtained without deception, A verbal pro- but upon a verbal promise subsequently to secure the purchase- quent to con- money by a mortgage, which the grantee afterwards refuses to do, ^^y™'=® *■" this will not constitute a sufficient ground for enjoining him from chase-money II • ii 1 J /e\ by mortgage, selling the land (b). not sufficient 32. An injunction to stay sale, under a power in a mortgage, was by g^^ntee? ^ granted a few days before the expiration of the notice of sale, on a bill by the mortgagor, charging a parol agreement enlarging the time of payment, and that payments had been made on the mortgage which were not credited. After answer, admitting some of the pay- ments, but denying the agreement charged, the injunction was dis- solved, on the terms of giving six weeks' further notice of the sale, and a reference to a Master was ordered to ascertain the sum due (7). (1) Sevens v. Woohton, 3 Green, Ch. (5) York, &e., v. Myers, 41 Maine, 220 (Amr.). 109 (Amr.). (2) Duncan v. Edwards, 4 Allen, (6) Ellsvjorth v. Starhird, 32 Maine, 369 (Amr.). 176 (Amr.). (3) Boyd V. Cudderlack, 31 111. 113 (7) Nichols y. Wilson, 4 John, Ch. (Amr.). 115 (Amr.) ; Hilliard, Inj., 2nd Ed., (4) Peeler v. Barringer, 1 Wins. pp. 594, 595, 605, 611. (N. C.)No. 2 (Eq.) 5 (Amr.). ( 202 ) Part I. Seot. 21. — Vendor and Purchaser — Specific Performance. Chapter I, In Equity 1- ^^ Equity it is not necessary for the alienation of existing property is property that there should be a formal deed of conveyance, and a all 6 QBi t6 CL without a contract to transfer the property given for valuable consideration, anoe. provided it is capable of being the subject of a decree for specific performance, passes it at once, and the vendor becomes a trustee A contract to for the vendee. This rule applies to personal property as well as pa^ases'thepro- to real estate, and such a contract, if made with respect to the perty, aud gg^jg q^ mortgage of future acquired property, being capable of tee for vendee specific performance, transfers the beneficial interest in the pro- — and such perty, as soon as it is acquired, to the vendee or mortgagee, who be'applied'to ^^'Y ^^^^ an injunction to restrain its removal ; and it was held ^"^'"•r d ^"^ *^® ^^^^ ^^ Holroyd v. Marshall (1), that though there had perty. been no novus actus interveniens, the title of an equitable mort- gagee of machinery in a mill, and any substituted machinery, was preferable to that of a crerlitor under an execution put in sub- sequently to the last transaction by which the equitable mortgage was perfected, as well to the new as to the old machinery (2). No injunction 2. In a case of mistake, where the plaintiff intended to buy "wiisrG iiiifirs is a mistake by what the defendant never intended to sell, the Master of the Eolls, to'^BuCcV^ ^^ °^ t^® ground of the mistake, refused a mandatory injunction as matter of the to certain underground pipes, to restrain their removal, in a piece of land in respect of which the mistake arose, and as neither party had any right to require the specific performance of the agree- ment, dismissed the bill without costs (3). No injunction 3. The Court will not decree the specific performance of a breacVofeove- Covenant that is too vague, and in the nature of a covenant to nant which is rgpajj. and therefore an injunction was refused to restrain a party too vague, and ir ' •> r j in nature of from destroying a hedge, and from erecting a wall, or £iny building covenant to . -iiii- '•->„■,■< n ^ repair. inconsistent With a hedge being maintained for the benefit and advantage of the lands demised ; so held, in a case where upon granting a lease a hedge and a space of five feet on other lands of the lessor adjacent to the boundary of the demised lands were marked on the map in the margin of the lease with a note, " This (1) Infra. (2) Holroyd v. Marshall, 10 H. L. C. 191. (3) Bidtcrworth v. Walker, 13 W. R. 168 ; 11 L. T. (N. S.) 436. VENDOR AND PUIICHASEE— SPECIFIC PEEFORMANCE. 203 hedee to be maintained by the grantor," which note was not Part I ° • 1 1 /i\ Chavtee I. signed or incorporated by a reference in the lease (1). Sect. 21. 4. A vendor is not entitled to an injunction to restrain a pur- no injunction chaser from buying another estate, on the ground that it will *°J^ge p^,. incapacitate him from completing his first purchase (2). '^^^tlTe? state 5. The fact that a contract has been entered into for the pur- j^^ injunction chase of land is not sufficient to entitle the purchaser, before the ^J'^^^P^^.g^^^"^ title has been accepted, to an injunction restraining the vendor matter of the from using or continuing to use the external wall of the building, ^jefore title the subject of the contract, as a party wall, or from encroaching accepted, on the land, or from building so as to obstruct the light or air coming to the premises contracted to be purchased. The Vice- Chancellor said, that not accepting the title, the purchaser said, in effect, that he did not pledge himself to accept a conveyance, and that that was fatal to the motion (3). 6. In 1845 an owner of two adjoining tenements, a dock and a No injunction • mi *" restrain an wharf, sold the wharf in fee without any reservation, ine owner easement had been in the habit of allowing the bowsprits of ships in his ove7wharfe) dock to proiect over his wharf ; it not being shewn that there was ^°? existmg ■^ •' ... . prior to unity any existing easement of this kind prior to the unity of possession, of possession of which ended in 1845, and as this was held to be neither a con- ments (domi- tinuous nor an apparent easement, the Court decided that a subse- "f^t) and Mt quent purchaser of the dock was not entitled to restrain a grantee continuous or ...,,. apparent. of the purchaser of the wharf from interfering with his use of the dock in the manner above mentioned ; in other words, that the dock-owner could not exercise any right of placing ships in the dock in such a manner as that their bowsprits should overhang the purchaser of wharf; and it was also held, if a purchaser buys the fee simple oi^^f—S''^'^^ee . , without reser- a tenement for a valuable consideration, and has it conveyed to vation— not him without any reservation, he is not bound to take notice of the notice manner manner in which the tenement has, prior to the sale, been used by tenement for the vendor for the convenience of the adjoining tenement, on the convenience ,01 adjoining .principle that a grantor cannot derogate from his own grant ; and tenement, for when a purchaser buys a house, and has it conveyed to him with- lot°derogate from his (1) Armstrong v. Courtenay, 15 Ir. Brewery Company {Limited), 13 W. E. ^""^^ " Ch. Eep. 138. 220. (2) Syers v. Brighton Brewery Com- (3) EeatJi v. Mayrlew, 11 L. T. (N. S.) pany {Limited), Wright v, Brighton 473 ; 13 W. E. 199. 204 VENDOR AND PURCHASER— SPECIFIC PERFORMANCE. Part I. out any reservation, he takes the house, not " such as it is," but Sect. 21. ^'^'^^ ^^ ^'^ i^ described in the particulars of sale, and conveyed by the deed (1). No iniunction 7. If a Contract contains (as in this case) obligations of a per- obstractin" sonal character, the trustees of a composition deed for the benefit com* otitbn °^ Creditors of the contractor, under the 192ad section of the deed com- Bankruptcy Act of 1861, and in the form prescribed, and duly plating a con- . ■• ni i.iji. tract of a per- registered, are not at liberty to adopt the contract ; so held by tCT,Vere)\*he Vice-Chancellor Sir J. Stuart in a case where a contractor had building of a entered into an agreement that he, " his executors and admiaistra- chapel, &c. o ' tors" (omitting "assigns") would execute the works (a chapel, class-rooms, &c.) — that is to say, would complete the buildings — at a certain time, in a certain specified manner, and that the con- tractor was to set out the works and be responsible for errors, to provide and employ workmen, to provide and keep at the building a competent general foreman, to provide materials, labour, &c. ; and the Vice-Chancellor refused an injunction to restrain any obstruction to the plaintiiis (the trustees of the deed) in the execu- tion of the works (2). No specific 8. Where the terms of a contract are such that the Court can- Ff^Cou^^can- ^^^ Superintend so as to secure the performance by a plaintiff on not secure per- jj jg pg^^j j^ ^,jj]^ j^q^. dggj-gg specific performance ; and if, on non- lormance by "^ ' r r ' ' plaintiff. performance by a plaintiff, both parties cannot have equal justice. If on non-per- it will not, in the absence of an express negative covenant, and plaintiff, both where the contract cannot be split into two separate and inde- not*emial™ pendent portions, and the negative part enforced, grant an injunc- justice (in tion to restrain acts the doing of which is inconsistent with the absence of a , . » negative cove- maintenance of the contract (3). In this case the directors of a where con- railway company, by their duly authorized agent, entered into a b™s*Ht"and ^o^^tract with B., a railway contractor, for the construction of their negative part hue at a certain price, payable in shares and debentures of the enforced) no , tii injunction to company. Ihe directors subsequently repudiated the contract inconsistent (denying the authority of their agent), and entered into an agree- witiithecon- ^gnt by which another railway company was to undertake the (1) Suffield V. Broiim, 10 Jur. (N. S.) 727 ; 10 L. T. (N. S.) 90. Ill ; 33 L. J. (Oh.) 249 ; 12 W. II. (3) Peto v. Brighton, Uckfield, and . 356 ; L. T. (N. S.) 627. Tunbridge VTells Bailw.iy Company,!! (2) Knight v. Burgess, 33 L. J. (Oh.) W. E. 874 ; 9 L. T. (N. S.) 227. VENDOR AND PUEOHASER— SPECIFIC PEEFOEMANCE. 205 construction of the line. Thereupon B. filed his bill to obtain PaktI. -1. Chapter I. specific performance of his contract, and moved to restrain tne Sect. 21. directors from parting with the shares which would have become applicable for his payment. But Vice-Chancellor Sir W. P. Wood held, that the contract could not be severed, and that as the posi- tive relief of enforcing specific performance of the contract for con- struction of the line could not be granted, the defendants could not be negatively restrained from parting with the shares (forming the consideration to B.) in violation of the contract, especially as, in the event of B. failing in his contract, the company could not be restored to their original position (1). And the Court will not entertain a bill for specific performance of an agreement which contains terms that cannot be enforced against the plaintiff, where the effect of a decree would be, that on the plaintiff refusing to perform his part of the contract the defendant could not be restored to his former position ; and where the plaintiff, being owner of certain patents, had entered into a written agreement with other persons to form a company for working these patents, he agreeing on his part to sell the patents in foreign countries, and to give his whole services to the company for two years, and to do his best to improve the invention, and to impart such im- provements to the company; Yice-Chancellor Sir W. P. Wood heir], that the plaintiff could not obtain specific performance of this agreement against his co-promoters, because from the nature of his own part of the agreement the Court could not compel J, . 1 , . IT ■ Negative specific performance of it by him ; and the difference in the cases terms of an , ,., J. j.1,1 i>ii agreement are where a negative term 01 an agreement has been enforced by enforced by injunction, although the rest of the agreement could not have +h''™h'th~ been specifically performed in Equity, is, that the Court could at rest could not , , . , . be enforced — any time, upon a breach ot any other term in the agreement, where the restore the parties to their former position, or nearly so, by dis- upon*breacii solving the injunction; but if, in such a case as the above, the "^.^"^ °*!''^'' Court were to compel the defendants to become a registered com- parties to pany, that could not afterwards be undone, if the plaintiff were to ti™by^dTs-" fail in his part of the agreement ; and the ground upon which a injunclion^ (1) And see the observations of the Matim v. Oibson, 4 De G. & J. 276 ; Vioe-Chancellor in this case, on i>!*m?e!/ and Webster v. Dillon, 3 Jur. (N. _S.) V. Wagner, 1 De G. M. & G. 604 ; De 432 ; 5 W. R. 867. 203 VENDOE AND PURCHASEE-SPECIFIC PEEFOEMANCE. Part I. Court of Equity goes in enforcing by injunction a negative term Sect. 21. i^ an agreement, the positive terms in which cannot be enforced by decree for specific performance, is, that the injunction is de- pendent upon the plaintiff's performing his part of the contract, An actor and will be dissolved on his failing to do so (1). Where the forming at defendant, an actor, had contracted with the manager of a theatre theatre'than ^^ P^^^ *^* ^'^ theatre for twelve consecutive nights, commencing tiiat which he on a certain day, stipulating that he should be at liberty during perform in. those nights to perform (among other characters) three which were named, but there was no express condition that he should not act elsewhere during the twelve nights, and on the approach of the day appointed for commencing the engagement the defendant declared that he would only act in a piece which could not be produced at the theatre, and, when told that was impossible, declared that he would not act at all, and advertised himself to act at another theatre on the night appointed for the commence- ment of his engagement ; Vice-Chancellor Sir W. P. Wood held, that an injunction might be granted to prevent the defendant acting during the twelve nights at any other theatre during the A singer re- ordinary hours at which the theatre was opened for public per- ing, in vioia° formancc (2). Where a lady, not of age, and her father, by negat/ve"^^ Writing signed in a foreign country, had agreed with a theatrical stipulation of manager to sing at his theatre for a definite period, and by a clause, at any other Subsequently acceded to and signed by her agent, and to which she the one she"^ ^^^ ^^r father afterwards assented, she engaged " not to use her s^g a?-^^*^ *" talents at any other theatre, nor in any concert or re-union, public though the or private, without the written authorization of" the manaarer, and positive stipu- , , , n • i i Jation could the Jady engaged with the manager of a rival theatre to sing at enforced. ^'^ theatre within the definite period, and her debut was announced in the usual public advertisements ; upon a motion, in a suit by the manager against the lady, her father, and the manager of the rival theatre, although it was objected that the positive and negative terms formed but one agreement, and that, as it had been settled that the Court could not by injunction enforce the positive term that the lady should sing, it could not enforce the negative stipulation, yet the Lord Chancellor (Lord St. Leonards) (1) Stoc/cer v. Wedderhurn, 3 K. (2) Webster v. DUlon, 3 3ar. (S.S.) & J. 39.3 ; 26 L. J. (Ch.) 713. 432 ; 5 W. R. 867. VENDOR AND PURCHASER-SPECiriC PERFORMANCE. 207 (afiSrming the decision of Vice-Chancellor Sir J. Parker) held, that Part i. the positive and negative stipulations of the agreement formed but seot™. one contract, and that the Court would interfere to prevent the violation of the negative stipulation, although it could not enforce the specific performance of the entire contract ; and, overruling Eeriible v. Kean (1), and Kimherley v. Jennings (2) (3), that the Court would prevent the violation of the negative term, and restrain the lady from singing at the rival theatre, though the positive term of the agreement could not be enforced ; and also that, although it was a foreign contract, the plaintiff was entitled to the injunction without reference to where the contract was entered into, or what might be the remedies or forms of procedure in other countries on it (4). In Bolfe v. Bolfe (5) it was held, that if an agreement consists of two distinct parts, one of which the Court can enforce, but not the other, and a bill is filed simply for an injunction to restrain the violation of the former part, the Court will grant the injunction, notwithstanding it would not enforce the agreement in toto. 9. The Court will not specifically enforce an agreement which The Court would be a fraud on the public ; and where J. sold under a trade- 7nfuree*an mark a medicine known as J.'s ointment ; and 0., without autho- agreement. . -r , . ■which would rity, sold an omtment as J. s ointment, under an imitation of J.'s be a fraud on label ; and J. having threatened proceedings against 0., an agree- ^ ^" '"' ment was made by which, after reciting that 0. alleged that his invasion of the rights of J. was inadvertent, and that he had dis- continued the same, and agreed not again to infringe on such rights ; all claims in respect of the invasion, not only with respect (1) 6 Sim. 333. period of time, at their theatre, and (2) 6 Sim. 340. that in the meantime he should not (3) In Kimherley v. Jennings it had act at any other place in London ; the been held by Vice-Chancellor Sir L. same judge held, that the Court could Shadwell, that where a party agrees not not enforce the positive part of the oon- to do a particular act, and there are tract, and, therefore, that it would not other terms in the agreement which restrain by injunction a breach of the are so vague that the Court cannot en- negative part. force them, it will not grant an injunc- (4) Lumhy v. Wagner, 5 De G. & Sm. tion to restrain the breach of the nega- 485 ; 3 De G. M. & G. 604 ; et v. Great tive term ; and in Kemhle v. Kean, Northern Eailway Company v. Man- a case in which the proprietors of chester,.SJieffield, and Lincolnshire Bail- Covent Garden Theatre had agreed way Company, 5 De G. & Sm. 138. with an actor that he should act for (5) 15 Sim. 88 ; 1 Coop. C. C. 87, n. twenty-four nights, during a certain 208 VENDOR AND PUECHASER— SPECIFIC PERFORMANCE. Part I. to 0., but to include all parties who might have purchased the Sect. 21." ointment from him, should be settled and discharged by the pay- ~ ment of £1000, the receipt of which was acknowledged ; and this agreement also contained an undertaking to execute a formal release of all claims and demands in respect of the infringement, and J. having commenced suits against persons who had purchased the ointment from 0. previously to the agreement, but retailed it afterwards, and 0. filed a petition specifically to enforce the agree- ment, and to restrain J. from proceeding in the suits against the purchasers from 0. ; the Court held, first, that the agreement did not authorize any sale, after its date, of ointment previously pur- chased from 0. ; but, secondly, that, even if the terms of the agree- ment required the construction that J. was to permit ointment previously purchased from 0. to be sold under the initialed mark, the Court would not enforce the agreement on the ground of the fraud on the public (1). Purchaser for 10. In Ashwin V. Burton (2) it was held that a purchaser of a without notice bond for value, without notice, could not be restrained from deal- tbat it had jjj„ ^j^j^ ^j^g bond which had been transferred to him as a security been obtained ^ by fraud, not for the debt of a party (T.), to himself, to whom, i.e. to T. (who, from dealing though never admitted, alleged himselt' to be a solicitor), and the ^'' '*' solicitor for the vendor, the purchaser of an estate, on signing the contract, had assigned and delivered the bond (a negotiable one) as a deposit, the vendor of the real estate being a fictitious person, and the contract a fraud ; and upon the purchaser of the estate filing a bill to get back the bond from the defendant, the purchaser of the bond, the Court also held, that the deposit did not make T., the alleged solicitor, a trustee for the plaintiff. This Court 11. There is no general rule of pi-actice to the effect that tbe by vendor™' Court will not, in a suit for specific performance by a vendor, restrain an restrain an action by the purchaser to recover the deposit; and action by pur- j l ^ r » ^ chaser for the where a purchaser of property by private contract had paid his deposit, but considered the title defective, and had brought an action for the recovery of such deposit, and the vendor then filed a bill and moved for an injunction to restrain the action ;Vice- Chancellor Sir E. T. Kindersley held, that a Court of Equity was (1) Oldham v. James, 14 Ir. Cb. Rep. 81. (2) 9 Jur. (N. S.) 310. VENDOE AND PURCHASEE— SPECIFIC PEEFOEMANCE. 209 the proper tribunal to try a question of title, and that on bringing Part I. the deposit into Court, the injunction must be granted (1). seot. 21. 12. Where T., by agreement in writing not under seal, had if subject agreed to let to P. two farms for a definite term— ten years— at a ^^^^l^J^''' fixed rent, and P. had agreed to perform certain acts, viz., that he uncertainties 11 ^ -ij-ii-iT ^ subsidiary would lead or carry all the materials required for the buildings parts, -will not and drains proposed to be built and made on the farms by T. ; and fio^perform-"' the agreement contained stipulations that new hedges were to be ^^'^®- made and planted by T. ; that P. should keep them clean and properly protected ; and that gates, buildings, '• &c.," should be left in repair by P. ; and T. reserved to himself certain customary rights and reservations to cut and plant timber, search for and work mines and minerals, " &c.," allowing for reasonable damage ; and the agree- ment had been signed by the agent of T. and P., and under it P. had been let into possession of the farms, and the buildings had been commenced by T. ; but disputes having arisen as to the lead- ing or carrying of the stones by the tenant, the building operations had been stopped ; and in 1857 T. had brought ejectment to recover possession of the farms, and P. filed a bill for specific performance, and for an injunction to restrain the action of ejectment ; the Lord Chancellor, affirming a decision of Yice-Chancellor Sir J. Stuart, held, inasmuch as the subject matters, the term and the rent, were certain, the uncertainties in the subsidiary part of the agreement, even in the use of the expression " &c.," were not suffi- cient to prevent the tenant from having the agreement specifically performed (2) ; and also that the agreement, though void at Law An agreement as a lease, under the 8 & 9 Vict. c. 106, s. 3, which enacts that Tllstrnty ^' every lease required by law to be in writing; shall be void at Law ^^ ^"■"'^ ^^ ^^ . agreement. unless made by deed, was valid as an agreement, and that the jurisdiction of the Court was not excluded by this statute ; and the Court directed specific performance of the agreement. 13. Where there had been a verbal agreement for a lease of a Ejectment farm, at a certain rent, for a certain term, upon which the plaintiff gpecm™ pi'™'* was let into possession as tenant, and afterwards paid for the stock fo™iance _ ' deoreed of according to valuation, and there was evidence that the defendant, verbal agree- after the parol agreement, and after letting the plaintiff into pos- at a certain (1) Ktll V. Nokes, 32 L. J. (Ch.) (2) Parker v. Taswell, 4 Jiir. (N. S.) 785. 183, 1006 ; 27 L. J. (N. S.) (Ch.) 812. P 210 VENDOE AND PURCHASER— SPECIFIC PERFORMANCE, Part I. session of the farm, gave a memorandum of the terms of the Sect. 21. agreement, unsigned, to a solicitor, and desired him to prepare a rent and term ^^^^ according to the memorandum, and to let it be a favourable and plaintiff lease to the defendant : the Lords Justices, affirming a decision of let into pos- . . session. Vice- Chancellor Sir J. Stuart, held, that this was sufficient to entitle the plaintiff to restrain an action of ejectment, and to a decree for a lease according to the pai-ol agreement (1). Proof of acts 14. Where specific performance of an agreement for a lease is amounting to i » ■ ■ i breach of refused, on the ground of waste, or acts amounting to breach of nantTmust^^' ordinary covenants in a lease, the defence can only prevail on clear be clear— and evidence of gross breaches of the covenant, without any waiver or the breaches ° ' •' gross and not acquiescence by the landlord (2). ■waived — to disentitle to specific performance. Specific per- 15. Where the plaintiff's wife, without his knowledge, had paid dec'reeil upon £1-^0 to the defendant, with the desire of purchasing a field for the purchase by plaintiff, and the defendant refused to sell, but kept the money and band, and pos- paid no interest, and a few days afterwards he told the plaintiff he husband. might have the field to put his horse in, and the plaintiff occupied it for ten years without paying any rent, and in ignorance of what his wife had done ; the Master of the Rolls, upon a bill for specific performance and to restrain an action of ejectment, held, that tliere was a contract which the Court would decree to be specifically per- formed, the plaintiff having on an interlocutory motion for an injunc- tion being ordered by Yice-Chancellor Sir J. Stuart to give judg- ment in the action, to be dealt with as the Court should direct (3). 16. Where the original agreement has been subsequently varied, unless there be certainty as to those variations as affecting the original agreement, so that both together should form one consistent agreement, the jurisdiction of specific performance cannot be ap- plied to such a case, and the right to an injunction must depend on the right to specific performance, and an injunction to restrain the defendants from bringing ejectment, and from preventing the plaintiff's occupying stalls and counters, &c., was, under the above circumstances, refused (4). Breaches of a l^- Where a contract had been entered into between a canal (1) Pain V. Coomls, 3 Sm. & Giff. (N. S.) 1167 ; 13 W. R. 125. 449;3Jur.(N.S.)307;lDeG.&J.24. (4) Paris Chocolate Company v. (2) lb. Crystal Palace Cmnpany, 3 Sm. & Giff. (3) Millard v. Harvey, 10 Jur. 119. VENDOR AND PUKOHASBE— SPECIFIC PEEFOEMANCE. 211 company and the plaintiffs, the owners of paper mills, as to the mode Part I. of enjoyment of the waters by which both were supplied, and the Sect. 21. company did acts in violation of the contract ; the Master of the contract as to EoUs held, that it was no answer, upon a bill for a perpetual iniunc- *'^s ™"<^e of . . . enjoyment of tion, to say that the acts proposed would not be injurious, or even waters, re- to prove that they were beneficial to the plaintiffs, and the Court, no answer although no evidence was given of any actual damage done, made ^'^^ *not^*^ a decree for a perpetual injunction (1). injurious— or even if they were beneficial. 18. In the case of an agreement between railway companies, the no injunction terms of which it was contended were uncertain in themselves, and aiie^ed^^ola- the plaintiff's legal title was doubtful, the Court of Appeal, dis- ^'■"^ °^ an ... . . agreement solving an injunction obtained in the Court below, gave fhe parties between two seeking to enforce the agreement an opportunity of trying these panics— plain- questions at Law, and refused to restrain in the meantime an |J^^^®P'^'*'® alleged violation, an injunction not being required for the protec- tui- tion of the plaintiff against irremediable mischief, and would be injurious to the defendants (2). 19. Where upon an application for an injunction to restrain the No injunction breach of an agreement, the Court ordered the motion to stand over, bre^irof with liberty for the plaintiff to take proceedings at Law, and the a^eemeiit plaintiff thereupon brought his action, and recovered a sum of £500 of Common by way of liquidated damages, and then renewed his application determined for an injunction ; Lord Chan. Cottenham, under these circumstances, ^^pgnalt " refused to interfere, the Lord Chancellor observing that the Court '^'^B.nt liqui- . dated of Law had determined that the word " penalty " in the agreement damages, and meant liquidated damages, and that, therefore, there was no right recovered a^ of action then remaining ; and inquired whether counsel had any ?.™^y ^^^"^ authority to shew that this Court would interfere under such cir- damages. cumstances, the agreement being a legal one, and the contract then no longer continuing ; and that it came, in fact, to this — that after the defendant had paid the price of doing the act the Court was asked to restrain him from doing that act for which he had paid, and the Lord Chancellor afterwards added that the counsel for the plain- tiff had produced no authority in support of such a proposition (3). (1) Dickenson v. Grand Junction North Western Railway Company, 3 Canal Company, 15 Beav. 260. Mac. & G. 70. (2) Shrewsbury and Birmingham (3) Saintir v. Ferguson, 1 Mio. & Railway Company v. London and Q. 286 ; 1 H. & T. 383. P 2 212 VENDOE AND PUECIIA SEE— SPECIFIC PEEFOEMANCE. Part I. 20. Where by an indenture between the plaintiff of the one Sect. 21. part, and the defendants, who were partners in a certain mannfac- ture of which the plaintiff had been the patentee, of the other part, it was stipulated that the plaintiff should have the conduct and management of the business, and that the remuneration which he should receive in respect of his services should be such a sum of money as would be equal to 40 per cent, upon the net profits ; that a reduced amount should be paid to his executors in the event of his death, until the expiration of the license ; that the plaintiff might purchase the business on certain terms ; that the defendants might determine the plaintiff's engagement as manager, if he should not in every respect perform the covenants contained in the indenture, but that so long as he continued to observe them his appointment as manager should be irrevocable during the continuance of the license, and that nothing therein contained should extend to con- stitute a partnership ; the Lord Chancellor (Lord Truro), held, there being an absence of every incident of partnership except that of sharing in the profits, that that circumstance alone did not cod- stitute the indenture a contract of partnership, but that it amounted Specific per- on\j to a Contract of hiring and service ; and the plaintiff having foimanoe of a jjgg-p dismissed by the defendants from their service, and having hiring and filed his bill for an injunction to restrain the defendants from exclud- service wOl .... i t i /-^i t i i i t not be en- ing him from the management, the Lord (Jhancellor also held, dis- injunc'tion to charging the injunction which had been granted by Vice-Chancellor restram ex- Lord Cranworth, that the contract being of hiring and service was eluding from ' ° ° management, one of which specific performance could not be enforced (1) ; nor agreement for Can a suit be Sustained which seeks to enforce an agreement for plaintiff's "per- the continuance of the plaintiff's duties or personal services to the sonal service, defendant, inasmuch as those services might be rendered in a manner productive of injury rather than benefit to the latter, and the Court does not possess the means of compelling a person to fulfil his duty to his employer under such a contract. Therefore, where it was agreed that the respondent should " continue to employ the petitioner as salesman." for the purpose of disposing of his stock in trade on certain terms, some of which tended to shew that a sale of that stock to the petitioner was thereby intended, but others positively shewed that a relation approaching to that of shopman (I) Starker v. BwcklehaiiJc, 3 Mac. & G. 250. VENDOR AND PURCHASER— SPECIFIC PERFORMANCE. 213 and owner was for a time to exist between the parties, a petition Paht i. (in Ireland) praying that the agreement might be specifically per- skot. 21. formed and carried into execution was dismissed (1) ; and, semhle, that vice versa, the employer could not haye maintained a suit to oblige the other party to discharge his duty accoriHng to the agreement (2) ; and in Mair v. Himalayan Tea Company, Limited (3), in contiaota it was held by Yice-Chancellor Sir W. P. Wood that in the case of Bemoes°Court a contract for personal service, even when an agent has been wrong- cannot enjoin , . even when an fully dismissed by his employers, the Court, having no power to agent has compel the agent to fulfil his duties, cannot interfere by way of Miy dis- injunction in his favour. "^^®'^- 21. Where thQ lessee of an inn covenanted to use and keep it open as an inn during the term, and not to do any act whereby the licenses might become forfeited ; and the lessee having threatened to do certain acts inconsistent with the first branch of the covenant, and the lessor having obtained an ex parte injunction restraining him from discontinuing to use and keep open the premises as an inn, and from doing any act whereby the license might become forfeited or be refused, the injunction was afterwards dissolved; Vice- Court lias no Chancellor Sir L. Shadwell holding, that the Court had no juris- ieBtmtadil*° diction to restrain a person from discontinuing to use premises as eoitini^ing to . use premises an inn, which was the same in effect as ordering him to carry as an inn. on the business of an innkeeper ; but that it might have restrained restrSIf oove- him from doing, or causing or permitting to be done, any act which ^^^^ ^^n' would have put it out of his power, or the power of any other ^"^ which , , . , . ■' -would have person, to carry on that business on the premises ; but that no disabled him intention had been shewn on the part of the defendant to violate onThrS-^ the negative part of the covenant, i.e., not to do any act whereby ^^^^• the ligenses might become forfeited or refused (4). 22. Where by an agreement between the plaintiffs and the defen- dants, the former, in consideration of certain payments to be made by them to the latter, were to have the exclusive right of engrav- ing and publishing a series of maps, from drawings to be furnished to them from time to time by the latter, the Court refused to restrain the defendants from acting in violation of the agreement, (1) Fitzpatrick v. Nulan, 1 Ir. Ob- (3) 11 Jur. (N. S.) 1013. Rep. 671. (4) Hooper v. Brodrick, 11 Sim. 47. (2)Jb. 214 T'ENDOE AND PUECHASEB— SPECiriC PEEFORMANCE. Pai!t I. as it could not compel the defendants to furnish the drawings, Sect. 21. ^" x • • i- j life) not suffi- prayed to restram the lessees ot a conterminous mine irom tres- to'^prerent ■* passing upon his mine, and an account and payment of the proceeds enforcing an of their alleged wrongful workings in it ; and after an interim order agreement for . . • i j compwmise. had been obtained the suit was compromised under an agreement whereby the defendants were to pay the plaintiff' £400, which he agreed to accept for the full value of all coals to be raised from the mine in question, with costs to be taxed in the then next term, and if reasonable security to the plaintiff's satisfaction were given six months were to be allowed for the payment ; the Court held, that the erroneous allegation of title in the bill could not be regarded as having led to such a misapprehension of it as would prevent a Court of Equity from enforcing the agreement for com- promise ; and that, under the agreement, the defendants were not entitled to have the plaintiff's title deduced aud verified ; but that the compromise could not be enforced by petition in the original suit, and that a new suit had been properly instituted for this purpose (2). Where day for 28. Where a purchase was to be completed on the 25th of extodedat October, and before that day arrived the purchaser, at the vendor's vendor's re- request, extended the time to the 5th of November, and the title, quebt eleven ^ ' ctaya— and howevor, was not completed on that day ; the Court held, on motion pieted— to make absolute an order nisi to dissolve an injunction, that the htetvtr ^ purchaser was at liberty to abandon the contract (3). abandon con- 29. The Court will interfere by injunction to prevent a party The Court will availing himself in any manner of a title arising out of a violation pTiiylivaiiing 0^ right, or breach of contract or confidence (4) ; and the cases in himself of a ^Jijeh the Court refuses to interfere by injunction until the legal title arising _ . • i. • u out of a right is established at Law have no application to cases in which violation of rio'ht, breach of contiact or confidence — and the cases where Court refuses interference until legal right established have no application. (1) Jitwood Y. Barham, 2 Muss. ISG, 1; affirmed at the hearing, 22 L. J. (2) L'ichitrdson v. Eyton, 2 l)e G. M. (N. S.) Ch. 170 ; 16 Jur. 959. & a. 79. (4) Prince Albert v. Strange, 1 Mac. (3) Purlin v. niorokl, 2 Sim, (N.S.) & G, 25 ; S. C. 1 H. & T. 1. VENDOE AND PUECHASEE-SPECIPIC PEEFOEMANCE. 217 the Court exercises an original and independent jurisdiction to Part l. prevent a wrong arising from a violation of right, or breach of con- ^mr. 21. ' tract or confidence (1). 30. In Hills V. Croll (2) a motion to restrain a defendant from No injunction violating his part of an agreement was refused by Lord Lyndhurst, violation by on the ground of the agreement being such that the Court could ^fj'^^^.t^f °^ not compel a specific performance by the plaintiff of his part of it. agreement, if compel specific performance by plaintiff of Ma part. 31. In Eankin v. EusMsson (3) the Court granted an injunction A mandatory to restrain the Commissioners of Woods and Forests from con- '^''aJSedm tinuing projected, or commencing any other, buildings on part of mteriocutory the site of Carlton Palace, and from permitting such part of the restrain acts , ., ,. ,11 IT IP . . 1 .1 ™ violation of building as had been already erected from remaining thereon until a term of a answer or order to the contrary, in violation of one of the terms of an agreement entered into by them with the plaintiffs for a building lease of an adjoining part of the site. 32. All the proprietors of the M. newspaper being also, with the Where an exception of one, proprietors in the E. newspaper, the Court refused bferTking an injunction to restrain using effects of former partnership to assist ^^^^ ™fth the latter, in consideration of an annual sum, there having been tlie effects of an agreement permitting the use on those terms which had been ship by long acted under. But an injunction was granted to restrain using Section effects not included in the agreement (4). refused— except as to effects not ° ^ ' included m the agreement. 33. If A. obtains a patent, and enters into an agreement with B., A patentee, the effect of which is to make B. a partner in the patent, B. is effect, from entitled not merely to share in the profits, but to interfere in the *^® '"''^"'* °^^ •' r ' an agreement, management of it ; and if, upon a bill being filed, A. insists that ™ade another ,,..,, . , , . person a part- he alone is entitled to act m the management, and that such was ner— will be the true intent of the agreement, an injunction will be granted froi^^tino- against A. (5). ^"l^^'y ^° *'°e ° ' _ ^ management. 34. The Court will not interfere by injunction to prevent the The Court will violation of an agreement of which, from the nature of the subject, ^oiation^of an there could be no decree for a specific performance, as, for instance, ^?^°l'P* °^ could be no specific performance. (1) Prince Albert v. Strange, 1 Mac. (4) Olassington v. Thwaites, 1 S. & &G. 25; S. C. IH. &T. 1. S. 124 (2) 1 Coop. C. C. 84 ; 2 Ph. 60. (5) Blackford v. Hawhins, 1 L. J. (3) 4 Sim. 13. (Ch.) 141. 218 VENDOE AND PUROHASEB-SPECIFIO PEEPORMANCE. Part I. to restrain the defendant from imparting the secret of an invention Sect. 21. which had been the subject of a patent long since expired (1) 35. In Williams v. Williams (2) it was doubted by Lord Chan- cellor Eldon whether a Court of Equity in the exercise of its juris- diction to decree the specific performance of an agreement, could interfere by injunction to restrain a party from dirulging a secret in medicine which was unprotected by patent, and Lord Eldon said that it was a question which would require very great con- sideration. In this case an injunction which had been granted for that and other purposes was dissolved, upon the affidavit of the defendant (an infant) denying the facts of the case as represented by the plaintiff's affidavit in support of the injunction, and upon the ground that there was no secret in the alleged invention. But DiTulging— in in Yovait Y. Wingyard (3), Lord Chancellor Eldon granted an in- breach of trust . .. , ,. irixi? • i.- j. ■ — secrets of junction to restrain a detendant irom communicating certam recipes medicines ^ for veterinary medicines and vending them, on the ground that he restrained. Jiad obtained a knowledge of the mode of preparing them by a breach of trust and confidence ; but confined it so as not to prevent the defendant from administering the medicine to any animals then under a course, it being stated in the papers of directions for administering them, that a sudden discontinuance would be prejudicial ; and in Morison t. Moat (4) the Court restrained the divulging of a secret of compounding a medicine, in breach of trust and confidence. Specific per- 36. Where the plaintiffs' house being so near the church that agieement not the five o'clock bell rung in the morning disturbed the female *h""f b 11 plaintiff, the plaintiffs came to an agreement in writing with the enjoined. churchwardens and inhabitants at a vestry, that the plaintiffs would ei-ect a cupola and clock at the church, and in consideration thereof the five o'clock bell should not be rung in the morning during the lives of the plaintiffs or the survivor of them; the Court held this a good agreement and binding in Equity, and after granting an interlocutory injunction, granted, at the hearing of the cause, an injunction during the lives of the plaintiffs, and the survivor of them, against the ringing of the five o'clock bell (5). (1) Newherry v. James, 2 Mer. 446. (4) 21 L. J. (Ch.) 248; affirming S. C. (2) 3 Mer. 157. 9 Hare, 241. (3) IJ. & W. 394. (5) Martin v. Kiitkin,2 V. VCms. 266. VENDOE AND PUEOHASEE— SPECIFIC PEEPOEMANCE. 219 37. The Court, in SpiUer v. Spiller (\ ), granted an injunction Pakt I. to restrain the vendor of copyhold premises, after delivery of pos- sect. 21. session, and receipt of part of the purchase-money, from surrendering vendor of them to persons other than the purchasers. But Lord Chancellor copyhold _ _ -^ _ _ wneredelivery Eldon said that he wished it to be understood as his opinion that, of possession in general, on a bill for the specific performance of an agreement part of pur- to sell, the plaintiff is not entitled to restrain the owner from res^titine'd''^ dealing with his property, and that a different doctrine would surrendering operate to control the rights of ownership, although the agreement purchaser, was such as could not be performed. In Echliff \. Baldwin (2), And vendor the Court granted an injunction restraining a vendor, the defen- restra^ned*^ dant to a bill for specific performance, from conveying the legal conveying ,- estate. The ground of the motion being that tlie plaintiff might -be thus put to expense by the necessity of making another party when the cause might be just ready for hearing. And in Turner v. or letting or Wright (3) the Court granted an injunction in a suit for specific ^®'^™s- performance to restrain a vendor from letting or selling the estate. In Curtis v. Marquis of Buchingliam (4) the Court granted an injunc- Sale ra- tion to restrain a sale of an estate till answer to a bill alleging a aiieg^d^Mol parol agreement to exchange, partly performed bv the plaintiff apeement having purchased an estate for that purpose. And in Eawes v performance. James (5), where an Inclosure Act empowered commissioners to sell by private contract any part of the commonable lands fronting or adjoining the houses or gardens of the purchasers, and also em- powered the commissioners to sell by auction such parts at the greatest distance from the houses of the respective proprietors as the commissioners should think fit, for defraying the expenses of the Act, and the surplus of the produce of such sales was directed to be divided among the proprietors ; on a bill by one proprietor Inclosure on behalf of himself and the others, the commissioners were re- r^ettJSnld""" strained by injunction from proceeding in an agreement made by ^Hi^g » pond them for the sale of a pond by private contract to a person who utility— at was not the owner of any property adjoining or fronting the pond, ™'^^"^^''^- it appearing that the pond was of much public utility, and was at an undervalue ; and if there are vexatious alienations pendente lite the Court will restrain them (6). (1) 3 Sw. 556, 557. (3) 4 Beav. 40. (5) 1 Wils. 2. (2) 16 Ves. 267. (4) 3 V. & B. 168. (6) Daly v. Kdly, 4 Dow. 440- 220 VENDOR AND PUECHASER-SPECIFIC PEEFOEMANCE. Pakt I. 38. In Oreen v. Lowes (1) the Court granted an injunction till Sect. 21. answer or further order, against a purchaser, on behalf of a creditor, to restrain payment of the purchase-money to the heir on an affidavit that there was little, if any, other fund for the payment of debts besides the estate. Alterations in 39. In Bonndt V. Sadler (2) the Court granted an injunction an agreement against proceeding with alterations in a house under an agree- re&traiS^ ment for a lease upon circumstances that would probably prevent ■H-here ciroum- ^ specific performance, viz., surprise, the effect of fraudulent mis- surprise and representation and concealment, and the particular nature of the &c., would ' alterations for the conversion of a private house to the purpose vent'apecmc' °^ ^ coachmaker's business, wholly changing the nature of the performance, subject. If it is doubt- 40. Where there was a paper entitled " Memorandum of an agree- ful whether a n -n >> i • n i i ■ memorandum ment between A. and B., and signed by them, expressmg that in requiredto^be Consideration of £40 A. " doth agree to let," and B. " doth agree to by deed— or \.q]^q a messuage," &c., at £40 per annum rent, " and it is further an agreement o ' ' r ; to let which agreed " that A. " shall not raise the rent, nor turn out " B. so long: the Court ° , . , , . , , i , , n, . , would specifi- as the rent is duly paid quarterly, and he does not sell any article — the'^Ctomt^ injurious to A. in his business ; though the terms do not exclude will grant an ^}jg construction of actual demise, yet the import of the whole injunction — ^m •' '^ aid of bill for looking to some future instrument, and a more permanent interest ST)Gci!D.C DGF— formauce. than from year to year ; the Lord Chancellor Eldon (observing whether this could be made out at the hearing of the cause was another consideration, but that the case was not so clear that the demurrer ought to be allowed) overruled a demurrer to a bill for specific performance against A., who had succeeded in an ejectment; the Lord Chancellor also observing that the question was, which the paper was, a lease, or an agreement to let, which this Court would specifically execute (3). The oorre- 41. Where in a correspondence between lessor and lessee spondence . . i i i • (here) held so respecting the granting a new lease to the lessee, the latter having an ao-reement spoken of the renewal of the old lease, the lessor did not object to for renewal of |.jjjg expression, but adverted to other topics connected with the a lease that r ' r the Court re- subject ; on a bill filed for the specific performance of the agree- strained eject- ' ment by lessor. . , ( 1) 3 Bro. C. 0. 217. injunction upon terms contmued on (2) 14 Ves. 526. answer, Id. 409. (3) Browne v. Warner, 14 Ves. 156 ; VENDOR AND PUECHASEE— SPECIMC PBEEOEMANOE. 221 ment for renewal alleged to be contained in these letters, the Part I. Court held, that they were so far evidence of such agreement as to g^oT. 21.' warrant the continuance of an injunction against an action of ejectment brought by the lessor against the lessee (1). 42. A plea to a bill for discovery and specific performance, and an injunction of an agreement at Law that the defendant at Law (plaintiff in Equity) would not bring error for delay, or file bill for an injunction, is a bad plea; but the Court, after such an agreement, will not grant an injunction as to that suit (2). 43. In enforcing contracts upon the principle of compensation in enforcing for variance from description, the Court has gone so far, to the ^^e prinoipye" extent even of totally defeating the object of the purchaser, that °? "ompensa- where the principal subiect of the contract was all the corn and has gone to extent of bay-tithes of a parish, and of the ha.y-tithe half was allotted to totally defeat- the vicar, the other half commuted for customary payment — the ™.chiler ° ijature of that payment, the extent of meadow, and the possible conversion from arable, not distinctly appearing ; the injunction against the defendant proceeding at Law to recover his deposit made upon an agreement to purchase certain tithes, &c., was con- tinued after answer ; and Lord Chancellor Eldon said, that, without meaning to say what might be the final decision, he was of opinion, attending to all the circumstances, that it was too hazardous to say there was not a fair and reasonable question whether this con- tract might not be specifically executed ; that it was certainly to be observed, that under the head of specific performance con- tracts substantially different from those entered into had been enforced (3). 44. " Where a party has entered into a contract which is still continuing, the Court will not deal with it, so as to prevent any person infringing it, except in certain cases, as in the ordinary case for a specific performance of a contract. There are many cases of contract the breach of which will entitle a party to an action for damages, but will not entitle him to come into a Court of Equity. To the latter class of cases belong all those where the breach of the contract does not produce irreparable mischief; and (1) Price V. Assheton, 1 Y. & Coll. (2) Auth v. Samhourne, 4 Bro. 0. C 82. 498. (3) Drewe v. Hanson, 6 Ves. 675. 222 VENDOB AND PURCHASER— SPECIFIC PERFORMANCE. Part 1. though the Court will interfere in a case of irreparable damage, so Sect. 21. ^■s to put it in a fair course of trial, yet, unless there is something ~ like that, though parties may be entitled to damages, and large damages too, it is not a ground upon which they can come into a Court of Equity " {fer Lord Chancellor Eldon) (1). 45. It was formerly held in several cases that relief might be given in Equity against forfeiture (on covenants) where compensation could be made, even although the act or omission were voluntary (2) ; but this doctrine may be considered now as overruled (3), and relief is only given where the breach of covenant has been the omission of a simple money payment, such as rent (4), unless under very special circumstances (5). Puroliasers of 46. Where a joint stock company established by Act of Parlia- an estate — ... i i • ^ peading suit ment vestmg in themselves all property belonging to tnem, and pTrfoimance— authorizing them to bring actions in the name of their treasurer diieotednotto f^j, ^]^g ^^jjj^g being, had purchased an estate, pending a suit against disturb the . ' j. o o possessiouof a the vendors to compel specific performance of an agreement to to a lease' grant a lease of part ; on a bill by the assignees in bankruptcy of agreemeat *^® intended lessee against the treasurer and directors, the plain- ■with the tjffg ^ere declared entitled to a lease, and the treasurer was en- veudor. joined from disturbing their possession ; but as the rest of the proprietors (being very numerous) were not parties to the suit, Sir T. Plumer, Master of the Eolls, directed that no decree coidd be made for the execution of a lease (6). Though bill 47. Where upon a bill for specific performance of an agreement perfiirmance to grant a lease and for an injunction to restrain execution of a i/securHThas ^'*^^'*''j ^^^ on tl)e coming in of the answer, the injunction wascon- been given for |;jjjug(j gj^ ^he terms of plaintiff's giviner security for the mesne mesne profits, _ ^ . the Court has rents by recognisance ; and on the hearing of the cause the bill order the ^^as dismissed with costs, and thereupon the defendant brought an payment. action for the mesne rents against the plaintiffs, and recovered judgment at Law ; upon motion of the defendant's executor the plaintiffs were ordered to pay the amount of the judgment within (1) Weale v. West Middlesex Water- (4) Kcshitt v. Tredennkk, 1 B. & B. works Company, 1 J. & W. 370. 29, 47 ; Job v. Banister, 2 K. & J. 382. (2) Popham v. BampfieU, 1 Vern. (5) Winthrop v. Murray, 8 Hare, 83 ; Rose v. Rose, Arab. 332. 214 ; Shearman v. Macgregor, 11 Hare, (3) Hill V. Barclay, 18 Ves. 56 ; 106 ; v. Kerr, Inj. 84. Gregory v. Wilson, 9 Hare, 689. (6) Meux y.Malthy, 2 S\v. 277. VENDOE AND PUECHASEE— SPECIFIC PEEFOEMANOE. 223 ten sitting days after service of the order ; for notwithstanding the Paet I. dismissal of the bill, the Court retains jurisdiction to make suc-h an seot. 21. ' order, the recognisance being substituted, in the case of the plaintiff, ' for an actual lodgment of the money in Court, in which case the Court, even after the dismissal of the bill, would have jurisdiction to make an order for payment of the money (1). 48. Where A. agreed to demise certain premises to B., who un- Upon agiee- dertook to build houses thereon, at the rate of so many in each ^„°i 1^3^01' year, and A. was to grant separate leases of each house to B. as ■"''''', ^'f^'ded J ' or ^ sub-lessee, to soon as it was covered in, but if the houses were not built within a Kiant such a .„,..,, „ in-1 (. lease as the speciiied time A. had a power 01 re-entry on the demised part or originaliesseB the premises ; and B. subsequently contracted with C. for the build- to^i„tended ins; of some of the houses, and C. was to have two of them con- sub-lessee can- ° nut restrain veyed to him as a payment, A. agreeing by letter to grant to C. original lessor such leases as B. would be entitled to under the first-mentioned lease to others contract ; and C. had fulfilled his contract, but B. had not satisfied milet^where the condition of his contract with A., who had in consequence <'"S™*1 '^^see '■ has not satis- recovered by ejectment the two houses which were to have formed fied the con- C.'s remuneration ; and the bill sought from A. a specific perform- original ance of the agreement to grant leases of the two houses to 0. ; ''™''°'°*- upon a motion for an injunction to restrain A. from granting leases to any person except the plaintiff, the Court held that the plaintiff had no equity against the original lessor ; and the only right the plaintiff had was, according to A.'s engagement, to such a lease as that lessee would be entitled to claim (2). 49. Where after an agreement by parol for a partition of copy- Parol agree- holds between A. and B. (brothers) having apparent but doubtful pa^tft^on by title as tenants in common under the will of their father. A., the two parties believing elder, taking somewhat the larger share, and he afterwards devised themselves to his portion to C, and upon A.'s death it was discovered that at the commoD,*Vh"o time of the agreement he was tenant in tail and B. tenant in tail in '^^^^ ^P- ^^''* ^ respectively remainder, who thereupon repudiated the ao-reement and brouo-ht tenant in tail • . ,j 111 1 ■», ° and tenant in ejectment to recover the whole estate ; the Master of the EoUs (Lord tail in remain- Langdale) upon the principle on which the Court supports family ported'on the arrangements, decreed to support the agreement, though by parol, ^^ji"et'']^e^''' followed by long enjoyment, and that B. should do all acts for Court supports family (1) Popham Y. Baldwin, 2 Iv. Eq. 357, D. and lfn"'°*'' Eep. 356. See Oostello v. Hunt, Id. (2) Anon. 1 L. J. (Ch.) 25. enjoyment. 224 VENDOE AND PUECHASEE— SPECrPIO PEEFOEMANCE. Part I. barring the entail, and vesting the portion allotted to A. in his Chapter I. , . -^ , Sect. 21. devisee (1). :^ 7^ ' 50. A vendor may acquire a lien on a fund in Court under a acquire a lien contract for Sale, and, if the vendee refuses to complete the con- on a fund in ,.,...„,. „_ Court under a tract, may prevent him by injunction irom drawing out of Court sale' and If ^^^ tujid. which was appropriated by the contract to be applied in vendee refuse' part discharge of the purchase-money (2). may obtain an injunction to restrain taking out of Court the fund appropriated in part disoliarge of purchase-money. The ciroum- 51. Where A. took and was let into possession of land for the diewSf"' mere- purposo of building according to a plan agreed upon, and at a rent ly a tenancy fixed, without any agreement in writing, and without any parol year, and no agreement for a lease for a term of years ; after which he ex- alease, Equity pended a considerable sum in buildings according to the plan, and 6train°eiect"- continued in possession for several years, and duly paid the rent ^■^^*T ^^'^ verbally fixed and the landowner having brought an ejectment, Kingsdown, insisting that the plaintiff was mere tenant at will, Vice-Chan- tue Comt™ cellor Sir J. Stuart held, that A. was entitled to an injunction and thi°Indiord *° ^'^^'^^ ^^ Equity (3). The bill prayed in the alternative for a having en- lease or for compensation. A private Act of Parliament having expectations of authorized leases for a certain duration, and on certain specified an interest — , j.i. j.j- i-m i_ii, and possession terms, to DC granted m cases nearly similar, where there was taken with j^^ written agreement, and if havins; been the usage on the estate consent and o ' a o faith of a to double the rent when a lease was executed, the Court decreed a promise— and pt-vt with know- lease to A. according to the Act oi JParbament and at the double lord money' ' ^^^'^ (^) > ^^^ ^^^^ decree was reversed by the House of Lords. 1^'^d— E°'^t '^^^ House (Lord Chancellor Cranworth, Lord Wensleydale, Lord will compel 10 Westbury) holding (diss. Lord Kingsdown), that the circumstances the promise, of this case did not shew the existence of anytliing greater than a tenancy from year to year, and did not establish any title to compel the grant of a lease, and, consequently, that the landlord having brought ejectment against T., Equity could neitlier . interfere to compel the grant of a lease nor to stay the ejectment ; but, under the special circumstances of the case, the bill was ordered to be dismissed without costs. But (per Lord Kingsdown) if a man, under (1) Neale v. NivJe, 1 Keen, 672 ; (2) Doyne v. Harvey, 1 Hog. 3. afRimed on appeal, Id. 684, n. (3) Thm-7)ton\.liamsden,iGiS.5lQ. (4) lb. VENDOR AND PURCHASER— SPECIFIC PERrOEMANCE. 225 a verbal agreement with a landlord for a certain interest in land, Pakt I. or under an expectation, created or encouraged by the landlord, Seot. 21. that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of Eq[uity will compel the landlord to give effect to such promise or expectation (1). 52. On a bill for specific performance of a negative contract, or, in the alternative, for damages, the plaintiff having come in time for an injunction as to part, an inquiry as to damages under 21 & 22 Yict. c. 27, was directed in respect of the rest of the con- tract, the breach of which was complete at the time of filing the bill (2). 53. Where there is a contract for the sale of land, the Court Where there will restrain the owner of the land from dealing with it until a suit the Court will for the specific performance of the contract has been disposed of ; i®^*''^™if ji^g" but when a plaintiff sues for specific performance, and there is !^^{^"7^y' ^°^ a serious question whether any contract exists, the Court will not serious ques- ., 1 i-p -iii--,-,! tion whether a mterpose ; and on a motion lor an interlocutory injunction, the contract exists claim of the plaintiff being doubtful on the evidence, the Court rj'^'^? *'^n • will act upon the consideration of the comparative inconvenience ^^°-^ ''^^^ ^°t 1 . 1 ■ c • • n 1 1 T upon consider- which may arise irom granting or withholding the injunction ; ations of therefore, wliere a plaintiff sued for specific performance of a con- inTOuvenience. tract for the sale of land, and there was a question whether any contract existed, the Court refused to restrain the owner of the land from dealing with it until the suit for specific performance of the contract had been disposed of; and an injunction to restrain the vendor from reselling the property was dissolved, it not being clear that the purchaser would be able to establish his right to specific peiformance, and it appearing that the granting the injunc- tion would, in case of his ultimately failing, be more injurious to the vendor than the refusal of it would be to the purchaser, in the event of his ultimately succeeding (3). (1) Ramsden v. Dyson and Thorn- (3) Hadley v. London Bank of Scoi- ton, L. R. 1 H. L. 129. land, 3 De G. J. & S. 63 ; 11 Jur. (N". (2) Hindley v. Emery, 11 Jur. (N. S.) 554; 13 W. E. 978. S.) 874. Q 226 VENDOR AND PUECHASEE— SPECIFIC PEEEOEMANCE. Part I. 54. The Coiirt will not, by interlocutory injunction, restrain one Seo ™2i. of t'lo parties to a contract from an act, for which, if wrongful, the jj~- 7^ plaintiff can obtain compensation in damages at the hearing of to restrain act the cause, and where the contract is one of which specific per- damagescan foimance Cannot be decreed as against the plaintiff (1). And heariugrancT* where on motion for an interlocutory injunction, the rights of the where tte con- parties are doubtful on the evidence, the Court \vill act on the con- tract cannot *■ be enforced as sideration of the comparative injury which may arise from granting a^ms p ain ^^ withholding the injunction (2). This was a bill by the plaintiff. In interloeu- ^Jjq fj^d entered into a contract with the defendants for the con- tory applica- tions, if rights struction of a line of railway, praying, amongst other things, for an doubtful, injunction to restrain the defendants from taking possession of or conSderations interfering with the plaintiff in the execution of the works which of comparative were being carried on by him under the contract, and from remov- injury. ing from the works any chalk, plant, or materials ; and for an account of sums due to the plaintiff under the contract ; and an inquiry as to surplus land, chalk, and flints, and for damages. Vice-Chancellor Sir J. Stuart granted an injunction restraining the defendants from interfering with the plaintiff in the execution of the works which were being carried on by him ; but the Lords Justices Knight Bruce and Turner, upon appeal, dissolved the injunction without prejudice to any question. The Court can 55. The Court of Chancery has jurisdiction to entertain a suit performance of for specific performance of an award, although the submission has aJthoiTt^h'the been made a rule of a Court of Law. It is no defence to such a suit submission has ^]jg^^ ^jjg plaintiff has ineffectually endeavoured to set aside the been made a ■■• ■' rule of a Court award ou motion (3) ; and where an award directed the execution Law ; and, of a lease to the Plaintiff of certain portions of a railway running Chauoellor o'^®^ t^® defendant's land, and provided that the lessor might from Tth"^' h ^^^^ ^'^ ^^^^ require the lessee to supply engine-power during plaintiff has such time as he should keep an engine or engines "for use, and to set aside twelve months after the date of the award the plaintiff filed a bill but^TLord fo'^ specific performance ; Vice-Cbancellor Sir W. P. Wood decreed Chancellor specific performance of so much of the award as related to the Cranworth, ^ (1) Oarrett v. Banstead and Epsom (S) BlackettY. Bates,2E.&'M.. 610; Downs Bailway Company, 13 W. E. L. E. 1 Ch. 117 ; 12 Jur. (N. S.) 151 ; 878. see 12 Jur. (N. S.) 874, n. (2) lb. VENDOE AND PURCHASER— SPECIFIC PERFORMANCE. 227 execution of the lease ; and by the same decree, after declaring Part i. that the defendant was entitled during the continuance of the lease, sifcT™2]. and during such time as the lessee should keep an engine or engines for use, but not otherwise, to require the lessee to supply engine-power, awarded an injunction to restrain the plaintiff from interfering with the defendant in the enjoyment of his rights and privileges. But upon appeal this decree was reversed, on the ground that the relief was not mutual, inasmuch as speciiic performance could not be granted of the portion of the award which required the plaintiff to supply engine-power ; and specific performance of an award or an agreement cannot be granted unless the Court can give mutual relief to both parties (1). The award was made in June, 1863 ; a bill for specific performance was filed in July, 1864; the interval was filled up by legal proceedings, which the plaintiff could not accelerate, but whereby he sought to set aside the award ; Lord Chancellor Cranworth said that he was disposed to think that such circumstances alone disentitled the plaintiff to specific performance, and that it was a strong thing to say, that after a party has denied the validity of an agreement, and taken proceedings to set it aside, he. can, when the result of those proceedings has proved adverse, turn round and insist on specific performance (2). 56. Where A. and B. were tenants of adjoining premises under the same landlord, and A. had a well upon his premises, from which B.'s premises were supplied with water by means of a pipe, and both premises, with others, were put up for sale by auction in lots, one of the conditions being that each lot was subject to all rights of way and water and other easements (if any) subsisting thereon, and A. and B. both purchased the lots of which they had been tenants, and the vendor insisted that A. had purchased subject to B.'s right of water, and A. filed a bill for a specific performance of the contract without any liability to such easement; Vice- Chancellor Sir R. T. Kindersley held, that B. had no easement or right of water, but merely a license from his landlord during his tenancy, and that A. was entitled to the relief asked, namely, specific performance of the contract, and an injunction to restrain (1) Blachett v. Bates, 2 H. & M. 151 ; see 12 Jur. (N. S.) 874 n 610 ; L. R. 1 Ch. 117 ; 12 Jur. (N. S.) (2) lb. Q 2 228 VENDOE AND PURCHASER-SPECIFIC PERFORMANCE. Pabt 7, the defendant from re-selling the premises, which under the Seot. 21. conditions of sale he had advertised to do (1). Wliere vendee ^^" Where N. contracte:! to purchase an estate, and a bill was — having paid filed against him for specific performance, and he then became into Court— bankrupt on his own petition, having prior to his bankruptcy rupt, and his brought an action to recover his deposit, which was restrained on ciTim^there' *^® terms of the deposit being brought into Court, and the assignees being a good were then made parties to the suit, and subsequently disclaimed in title- the J. 1 ... deposit will be respect of the contract, and the usual inquiry was directed as to paity°payino- title, and a good title certified ; Vice-Chancellor Sir R. T. Kinders- *V°'d^^*t™' ley held, the assignees and bankrupt appearing, that all proceed- appiioation by ings in the cause must be stayed, and the deposit paid out to the vendor to ... . , . , . t ■ i i Bankruptcy party paymg it in, without prejudice to any application by the prooeedtags in ^^nJor to the Bankruptcy Court under the Bankrupt Act of 1849, suit stayed— g j4g . ^jjg Court being of opinion that the plaintiff would have andnocOitsto or r assignees or been entitled to a decree for specific performance but for the bank- ruptcy and the assignees disclaiming ; and the Vice-Chancellor said, that the only position in which he could place the plaintiff was as if there had been no suit ; but he gave no costs to the assignees or the bankrupt, as he said it was according to the usual practice to serve them (2). The rule that 58. The rule that a purchaser is bound to inquire into tlie title purchaser is bound to in- of his vendor applies equally to a tenant from year to year in vendor's title relation to the title of his lessor ; therefore where the original con- tenanTfi°in ^^yance in fee of land contained a covenant by the purchaser for year to year himself, his heirs, executors, and administrators, with the vendors, as to liis lessoi-'s title— their heirs and assigns, that no building to be erected on the ■without^ex- premises should be used for the sale of ale, beer, wine, or spirits, press notice qj. gjjy other intoxicating liquor, and a house was built on the 01 covenant by •' o i » his lessor, in land, and a tenant from year to year, holding under a purchaser the original oini i- i .~i conveyance, of the fee, but not having actual or express notice of the covenant, buildln'gs^for Opened a beer-shop on the premises ; upon a bill by the original sale of a,le, &c., yendors against the purchaser of the fee and the tenant from year IS bound by, . . and will be to year, the Lords Justices held, afiSrming the decision of Vice- rGstrfljin cd from violating, Chancellor Sir W. P. Wood, that it was the duty of the tenant to — andl;Mt"* ^^^® inquired into the title of his lessor, and as he had not made (1) Eussell v. Harford, L. R. 2 Eq. (2) KtU v. Nokes, 14 AV. B. 908 ; 507. 14 L. T. (N. S.) 697. VENDOR AND PUECHASEE- SPECIFIC PEEFOEMANCE. 229 out a case which relieved him from such obligation, an injunction Paet I. was granted ; and that although the covenant might not run with gj,cT. 21. the land the defendant, the tenant from year to year, was bound '~^^~^ by it in Equity (1). covenant not oi 1 1 -ii • 1 • J^uuiiiDg with 59. Where a company — a sub-purchaser — filed a bill agamst their the land. vendor (who was a purchaser under another vendor) and some other defendants, who had agreed to share with him, for a return of £75,000, part of the company's purchase-money, and for delivery up, and for an injunction to restrain the negotiation, of bonds given by the company for another part, upon an agreement to sell an estate of 1530 acres, which turned out to be less than 1100 acres, and the contract for the sale of which estate by the original vendor had, on this ground, been rescinded ; Lord Chancellor Lord Cairns held, reversing a decision of Vice-Chancellor Sir E. Malins, that although the financial position of the company might render it convenient to them to rescind the contract, and though they might otherwise have been ready to take the smaller quantity of land, they were entitled to rescind the contract as the purchaser was unable to complete with them ; and on the ground of misre- presentation, though they might have been able to ascertain the extent of the estate, that the company were entitled to repayment of what they had paid, and to a return of the, bonds, and that they had a lien on a portion of a sum of £50,000 deposit on the original contract repaid by the original vendor to his purchaser, the sub- vendor, and which had been paid into Court (2). 60. Where C, the owner of land separated from the sea by a high road and waste land belonging to a corporation, proposed to construct, at his own expense, a terrace walk between his own land and the high road, upon the corporation agreeing to grant him a lease of all the waste lands between his own property and the sea for 300 years at a nominal rent, to reimburse him for his outlay ; and in 1860 the corporation passed resolutions accepting the pro- posal and providing for the stumping out of boundaries by a com- mittee to be appointed, and C. objected to the boundaries proposed by the committee, but took possession of such land as he considered (1) Wilson V. Hart, 2 H. & M. 554 ; ens, L. R. 4 Oh. 101 ; 18 L. T. (N. S.) L. R. 1 Cb. 463 ; 35 L. J. (Ch.) 569. 305 ; 20 L. T. (N. S.) 89 ; 17 W. E. (2) Abemman Iron Works v. Wick- 211 ; L. E. 5 Eq. 485. 230 VENDOE AND PUKCHASEE- SPECIFIC PEEFOEMANCE. Pakt I. necessary and constructed the terrace ; and in 1865 the corporation Sect. 21. g^-ve him notice to quit, and in 1869 served him with a summons in ejectment ; upon a bill for specific performance of the proposals by the corporation, and praying that a lease might be executed in accordance therewith, and for an injunction to restrain the action in ejectment, upon which a motion for an injunction had stood over on the undertaking of the defendants not to prosecute the proceedings in ejectment ; Vice-Chancellor Sir J. Stuart held, on motion for decree, that C. was entitled to a lease of the lands of which he had taken possession, the Court considering the corpora- tion bound by their aquiescence (1). Purchaser for 61. A purchaser for value is not bound by a restrictive covenant bound by framed to run with the land, unless he has actual notice of it, or running with '^uless precautions have been taken that if he had made proper land unless inquiries he would necessarily have had notice of it ; and where A. actual notice, '■ •' _ or precautions conveyed land to B. by one deed, while B., by a separate instrument, proper in- entered into a covenant restrictive of its use for a beer-house, and wo'ulTh ive ^' ^^^^ ^^^ ■'^■'^'^ ^° ^" ^^*^ notice of his covenant (his statement had notice. t]2a,t he had no knowledge of the restriction having been disproved), and C. let it to D. without notice, and D. opened a beer-house upon it ; on bill by A. for injunction, Vice-Chancellor Sir W. M. James held, that the Court would grant an injunction against C, but that no relief would be had against the tenant, who if he had asked his lessor would have been told there was no restriction, and if he had seen the conveyance would have found none ; and the bill, as against him, was dismissed with costs (2). No injunction 62. Upon a bill for specific performance and for an injunction ject matter of to protect the Subject matter of the contract, the latter wiU not be plaintiff 'en-"^^ granted unless the plaintiff is entitled to such performance (3). titled to, 63_ Ij2 case of a mere agreement to convey, defect of title is a specinc per- .... formauoe. ground for an injunction in favour of the purchaser (4). And though the sale is under a decree, Equity cannot make a man take a title which he is to support by a bill for an injunction (5). (1) CrooJc V. Corporation of Seaford, (4) Buchanan v. Alwell, 8 Humph. 18 W. E. 1147. 516 ; Buchanan v. Lorman, 3 Gill. 51 (2) Garter v. Williams, 18 W. R. (Amr.) 593 ; L. E. 9 Eq. 678 ; 39 L. J. (Ch.) (5) Per Lord Eosslyn, Shaw v. 560. Wright, 3 Ves. 22. (3) a(iigery.Green,i:G:\l\. 17'2 (Arar.) ( 231 ) CHAPTER II. Personal Peoperty. Sect. 1. Patents. p^^ i. 1. Hoops of whalebone, cane, and other substances, suspended from the waist, and forming a petticoat, having long prior to the suit been used by ladies j a person having taken out a patent for using, for the same purpose, hoops made of steel watch-springs, the Master of the Eolls (Sir J. Eomilly), upon a motion for an in- junction to restrain the infringement, and an application for an issue to try the validity of the patent, held, that this (i.e., the use of steel springs instead of whalebone,) was not an invention which could properly be made the subject of a patent ; the Master of the Rolls said there was no invention, nor anything that could be called an invention (1). 2. Where an invention consists of the discovery of particular The invention means for attaining a result, which result is already perfectly well meant to* °^ known, the invention is only for the means; and the invention of ****™*''^^'^*i does not inter- one set of particular means does not interfere with the invention fere with the of another set of means to the same end, provided that the two another set. sets of means are distinct, and the latter does not involve a colour- enV^^ ^^^'^ able imitation of the former, or an incorporation of the former, with additions. But ignorance of the existence of a former inven- tion is no answer to a charge of infringement, where the second invention is capable of being accurately represented as an imitation of the former, but where an inventor described his invention as " applicable to certain machines commonly known as self-acting mules, particularly those constructed with the improvements of L. & R. ;" and the second inventor having taken the same elements of construction, produced a new combination of agents, arriving at (1) Thompson v. James, 32 Boav. 570. 232 PATENTS. Part I. the same result, but by a process of thought in which he did not Sect. 1. appear to have derived assistance from his knowledge of the former invention, Lord Chancellor Westbury held, affirming a decision of Vice-Chancellor Sir W. P. Wood, that there was no A patent for infringeraent (1). And a patent for an entire combination is not an entire com- . , , . bination is infringed by a different combination, for the same object, of the by a difl'e'? Same elements, though important, or of equivalents for them, if rent combma- jj^f ^ mere Colourable evasion or imitation (2). And, semble, in tiou for same ^ ' ' object of same considering the question of colourable evasion the Court will look elementa. r>ii' /-i !•■ at tJie novelty ot the object ot the combination, and of the parts combined (3). And where a plaintiff alleged an infringement of his patent, and the patent was granted in 1854, and specified a combination of mechanism applicable to spinning mules, and the first claim was for the novel construction, combination, and appU- cation of mechanism thereinbefore described, whereby one-half of the clutch or catch- box thereinbefore described, or any mechanical equivalent therefor, was connected with or acted upon cams or other similar parts of mechanism direct; and the defendant's patent, granted in 1860, specified a combination of mechanism which embodied the leading idea of the plaintiff's patent, and by which one-half of a clutch-box was made to act upon cams direct ; and he adopted some of the elements combined by the plaintiffs, but he disposed them in a different manner; and these were important parts of the prior combination, and though old, the mechanical contrivances were new in respect of the particular mode in which the plaintiff applied them, and the immediate object of their com- bination by him was new, viz., to make a catch-box on cams direct, and the effect brought about by the direct action of the catch-box on the cams had long previously been produced, but less advantageously, by other contrivances of various kinds, and the defendant's mode of combination effected the common object of each patent in a more beneficial manner than it was or could be effected by the mode of combination specified in the plaintiffs patent, and it displayed an equal amount of inventive genius; the House of Lords, affirming the decision of Lord Chancellor (1) Curtis V. Flatt,nh.1\(N.S.) 852; L. E. 1 H. L. 337; 10 Jur. 245. 823. (2) Ourtis V. Piatt ; 35 L. J. (Ch,) (3) lb. PATENTS. 233 Westbury, held tliat the plaintiff's claim was limited to the entii'e f akt i. 1 • 1 in 1 M 1 • 1 ■ -n ■ 1 Chapter 11. combmation claimed, as before described m his specification, but sbot. l. that the defendant's combination was not a mere colourable evasion, and that there was no infringement (1). 3. The defendant in a suit for an infringement of a patent, who The invention relies upon the specification of an anterior patent, as being in ^^^ anterior anticipation of the plaintiff's patent, and that the same result g^^™*™^^* would be produced by a skilled workman in operating according capable of .„ . , , ^ 1-11 1- being used by to that specification, is bound to shew conclusively that the inven- the means de- tion protected by the anterior patent was used, or capable of being thl^^eoifloa- used, by the means designated by that specification. And it is t'ou— it is not no ground of proof of the effect of an anterior patent, that scientific shew that persons of the present day, with all the superior knowledge and of present day intelligence obtained by the advance of science, can depose that gam^resuit^by now they could produce the same result by the process disclosed process dis- by the anterior patent as that designated by the subsequent one ; anterior and where in a patent of 1804 the effect of rolling two metals designated in together of equal or unequal thickness, was to produce a metal of subsequent a particular character, and by a patent of 1848 the same result was indicated as being capable of being produced by the forced adhesion of the same two metals of prescribed thickness by rolling, the Court held that the former invention was not an anticipation of the subsequent patent, which was held to be a valid patent (2). 4. The invention or discovery of a means of producing in abun- The invention dance, suitable for economical and commercial purposes, an article pro'dudng^n previously known and obtainable in minute quantities onlv is a ^^bundance ah . rni • article before good subject oi a patent. I he principle laid down in JBrooJce y. '^^ovm and Aston (3), that the mere application of a known process to a new minute quan- article, the mode of application not being new, is not a good sub- guVeou'fi°°'^ ject of a patent; does not apply where the process is chemical ; and Patent. in this case, where Y. took out a patent for obtaining paraffine oil Jp^'pl^ation of and paraffine from cannel coal by distilling it at a temperature ^ '''^°"^" P^°" gradually raised to low red heat, but never exceeding that point ; article (tur^ and paraffine had been previously obtained from coal, but in very Ttbulo?^"" (1) Curtis V. Piatt, 35 L. J. (Ch.) 445 ; v. Setts v. Menzie, 3 Jur. (N. S.) 852; L. E. 1 H. L. 337; 10 Jur. 357, pi. 28, ^osi. 823. (3) 4 Jur. (N. S.) 279 ; 5 Jur. (N. S.) (2) Betts V. Be Vitre, 11 L. T. (N. S.) 1025. ^34 PATENTS. Pakt I. small quantities, and the process of dry distillation by gradually Sect. 1. raising the temperature was well known, but by applying that being new), is process to cannel coal Y, had produced parafRne oil and paraffine not good sub- j^ large quantities ; Vice-Chancellor Sir J. Stuart, upon a bill pray- patent; but ing an injunction and account of profits, held, that there was does not apply sufficient noTelty to support the patent (1). chemical.°"^^^ 5. Where a patented invention is partly original and partly If patented communicated from a foreign country ; setiible, that the part com- partiy original municated from the foreign country should be defined in the and partly patent, and in the specification, which should particularize what is commnmeated ^ _ _ -^ '^ from abroad, new in the invention and what is old ; and when this is not done, communi- the Court, upon an interlocutory application, will refuse an injunc- be*definedk ^^^^ *° restrain its alleged infringement. And this rule will apply, patent and qq^ merely to this, but to other matters, when the letters patent specification; if not done, and specification fail in explicitness ; and the age or date of the refuse inter- patent is. Under such circumstances, a material element in the l°«"t°7 consideration (2). injunction. ^ ' It is part of 6. It is part of the condition of a patent that the specification patent that shall particularly describe and ascertain the invention, therefore in the specifica- a patent for an improved arrangement, or a new combination of particularly machinery, the specification must describe the improvement and ascertain the define the novelty otherwise and in a more specific form than by invention. ^j^g general description of the entire machine, and the patent was held to be void in this case, the specification being held insufS- cient, and the bill for an injunction dismissed (3). The ordinary 7. Although it is the ordinary rule of the Court not to grant a Court is, not perpetual injunction to restrain the infringement of a patent, unless to grant in-^ either the legal validity of a patent has been conclusively esta- less validity of blished or the patent has been undisputed for many years, yet the patent esta- . ■ ■, ' , r^ j^ ^ blished, or circumstances oi the case may be sucn as to induce the Court to puted*manr depart from that rule (4). years— but g_ j^ a suit to restrain the further infrinofement of a patent eiroumstances ° ^_ may induce right, and for the consequent account where the account is a simple part from that one, such as where licenses or royalties have been granted ; the rule. (1) Young v. Fernie, 10 Jur. (N. S.) (3) Foxtvell v. Bostock, 12 W. E. 723. 9-'6 i 12 W. R. 901. (4) lienard v. Levinstein, 10 L. T. (2) Menard v. Levinstein, 10 L. T. (N. S.) 94, 177 ; Hills v. Evans, 31 (N, S.)177. L. J. (Ch.) 457. PATENTS. 235 Court will assess the amount of consequent damages; and in the Part I. '■ . , . , Chapter II. case of a complex account the Court has jurisdiction to direct the Shot. l. necessary inquiries to be made in Chambers to ascertain the amount of such an account; but in the latter case a, trial at Law by a jury is the more fitting tribunal by which the amount of such an account can be ascertained; therefore, when a patentee has obtained his injunction to restrain the further infringement of his patent right, and waives the usual account of profits, such an action will be directed, in addition to the injunction, the defendant giving all necessary facilities for the ascertainment of the profits in the meantime (1). 9. A licensee is, during the continuance of the license, estopped Licensee is, from disputing the validity of the licensor's patent ; and the only tinnanoe of way in which the licensee can do so is by putting an end to the eslopSd dis- agreement to take a license, and this he must do at his peril ; so P",*.^?.? - held in a case where C. was owner of patents for carpet manu- licensor's T13.TPTIT factures, and agreed with D. to supply D. with machines embody- ing all the latest improvements, in consideration of D. paying the price, and a royalty for the use of the machines, and D. bought the machines and had paid the royalty for several years; but latterly D. bought elsewhere other machines which were identical in construction and principle with C.'s machines, and used the same, and thus was using both sets of machines, and D. thereupon disputed the validity of C.'s patent (2). And though, in Dangerfield V. Jones (3), upon a bill to restrain the infringement of a patent, where the defendants had taken out a license from the plaintiff to use the machines which had afterwards and priot to the hearing of the cause been revoked, Vice-Chancellor Sir W. P. Wood said he did not mean to say that the taking the license bound the defen- dants in any way, or that it operated by way of estoppel ; yet this observation, taken with the decision above-mentioned in the case of Crossley v. Dixon (4), and the other cases in note (3), must (1) Bettsv.Deritre,llL.'S.(S.S.) Neilsm, 8 CI. & F. 726; Lawes v. 533, Purcer, 6 B. & B. 930 ; EaU v. Oonder, (2) Crossley v. Dixon, 10 H. L. 293 ; 2 0. B. (N. S.) 22 ; Notm v. Brooks, 7 9 Jur. (N. S.) 607 ; 32 L. J. (Ch.) 617 ; H. & N. 499 ; Grover and Baher Sew- 11 W. B. 716 ; 8 L. T. (S. S.) 260. ing Machine Company v. Millard, 8 (3) 13 L. T. (N. S.) 142 ; et v. Bow- Jur. (N. S.) 713 ; pi. 17, post, man v. Taylor, 2 A. & E. 278 ; Baird v. (4) Supra. 236 PATENTS. Part I. merely imply that after the license is withdrawn there is then no Ohapteb II. t , , Sect. ]. longer an estoppel. 10. Where a patent for a combmation only of machinery has Upon injunc- -,.•■,■, /-h -n ■ i • ■ tioii to restrain been infringed, the Court will not, upon granting the injunction of patenTfor "pon the motion for a decree, also order the defendant's machines combination ^q ]^q broken up, but will order them to be marked, and direct an only ot ^ machinery, affidavit to be made of the number of machines ; Vice- Chancellor order Sir W. P. Wood Said there appeared to be no precedent that the "e^brXlX; '^^^^•^^^ «^°^l'i ^^^ destroyed (1). but have them marked and an affidavit of the number. If inventor H- ^ publication of a new discovery takes place when the writes and inventor of it, either by himself or by his agent, having written a Boription in a description of it in a book, and sent it to a bookseller, such book discovery to a is offered or exposed for the purpose of sale ; and the first descrip- and the b^jok ti°^ "^ ^^ invention in a book published in France, and the sending '^i^?if^+ ^°^ of copies of the book to England to a bookseller, which are offered publication, by him for sale, is a sufQcient publication in this country of the a publication invention, and no valid patent can afterwards be taken out in this desorillonis country for the same invention (2). in a book published in France, and copies sent here to a bookseller and offered for sale. If something 12. Where something remains to be ascertained which is neces- asoertained sary for the useful application of the discovery that affords sufficient uS:7plta- ro^'i^ for ^^tl^er valid patent (3). tion of the discovery, that is sufficient for another patent. Prior know- 13. To support an allegation of want of novelty, whatever is a patent, must essential to the practical working and real utility of the invention be knowledge ^^g^ ^g found Substantially in the prior publication (i). Prior required to be knowledge, to avoid a patent, must be knowledge equal to that given by &> . patent, i.e., required to be given by a patent ; that is, such knowledge as will enabirpublio enable the public to perceive the very discovery, and to carry the to perceive invention into practical use (5). the discovery ^ ^ ■' aud carry it into use. The construe- 14. Although the construction of a specification belongs to the cifioation^^"' Court, the explauation of the words used therein, or of technical belongs to the ^grmg of art, is matter of fact upon which it is the province of explanation of words therein, (1) Needham v. Oxley, 11 W. R. (3) Hills v. Evans, 8 Jur. (N. S.) 852. 525 ; 31 L. J. (Ch.) (N. S.) 457. (2) Laing v. Gishorne, 31 Bcav. 133 ; (4) lb. 8 Jur. (N. S.) 736. (5) lb. PATENTS. 237 a jury to decide ; and in the comparison of two specifications, Paet I. each of which is filled with terms of art and with the description seot. i. of technical processes, it is the duty of the Court to give the legal o^ teohnioal construction ; but the work of comparing the two specifications is terms, is the province of a lor the jury (1). jury. 15. Where a patent had been granted for an invention for the Where specia- purification of gas by means of precipitated or liydrated oxides of mwlTof ^*^ iron, and the specification stated the mode of obtainiua; such oxides, ob'aming oer- '■ "^ tain oxidea for the use of a natural substance called bog ochre containing pre- purifying gas, cipitated oxides of iron was held not to be an infringement of the natural sub- patent ; but the Court granted an injunction to restrain the use of f^^^-^J^^g this substance when revivified in the manner described in the oxides is not . , an infringe- specification, being a process by which the old materials could ment of again be applied as a purifying element (2). revivified in mannerdesraibed in the specification. 16. Where two parties have obtained patents for the same in- where two vention, the Court will not interfere by an interlocutory injunction, ^btained'^^'^ but leave them to try the legal right by scire facias, being dis- patents for abled, by reason of sect. 1 of 25 & 26 Vict. c. 42, from directing a tfonf cSmt" case for the opinion of a Court of Law (3) ; and the Vice-Chancellor, TnLfere by Sir E. T. Kindersley, said that he could not help feeling-, also that pterlooutory . ^ D' J injunction, a question might be raised as to the validity of the plaintiif's!'"* leave them patent, and under all the circumstances he thought the best course righIby°saVe was to put the defendant upon an undertaking to keep an account •'''"''"*■ of what cartridges (the subject of the patent) were sold by him, and to direct that the matter should stand over until the hearing. 17. The fact of a patent having been found invalid at Law, upon Thougli a proceedings between the patentee and third parties, is no answer to found hmiid a suit, based upon the same patent, for an injunction and conse- ""^^^^y"^^"^ quent relief against a licensee who has covenanted to pay royalties ^^""^ parties, 1. 11. J.T ■ ,■ . ,-,. c J . ! licensee and and is selling the invention contrary to his covenant without covenantee, payment of the royalties (4). And so, where N. obtained a patent suchtcUo"'' for the application of tlie principle of smelting iron by the use off."^**'^^" heated air applied to furnaces, and B. obtained a license from him (1) Eills V. Evans, 8 Jur. (N. S.) (3) Copelandv. Webh, 11 W. R. 134 525 ; 31 L. J. (Ch.) (N. S.) 457. (4) Orover and Baher Sewing Mla- (2) Sills V. Liverpool United Qas- chine Company v. Millard, 8 Jur. (N. Ziff/i* Company, 9 Jur. (N. S.) 140 ; 32 S.) 714. L. J. (Ch.) 28. 238 PATENTS. Part I. to use this process, on the payment of Is. per ton on the iron Sect. 1. thus smelted, and disputes and then litigation rose between them ; and it was agreed by an instrument dated the 11th of November, 1833 (which recited the previous circumstances), that both parties should withdraw their law processes, and that " in consideration of the present payment of £400, to be accepted by N. in full of Is. per per ton on the whole iron smelted from the erection of B.'s works up to the 11th day of November current, and in consideration of the payment of Is. per ton upon the whole iron which should be smelted from the 11th of November current till the expiry of the letters patent by the use of heated air in any of the modes there- tofore applied, or in any other mode falling under the said patent," N. should grant to B. a license, which further on in the agree- ment was described to relate to " the application or use of heated air in any of the modes heretofore practised at B.'s works, or in any other mode falling under the description of the said patent, or in the specification thereof," and N. afterwards instituted a suit to compel B. to perform this agreement, and B. instituted a cross suit to suspend N.'s proceedings, on the ground that the process of smelting by heated air used at B.'s works did not fall within the patent, the House of Lords held, that after this agreement B. could not set up such a defence to the claim of N. (1). Wben issue 18. When an issue is directed to try the validity of a patent, it vaMity not"^ ^^ ^°* t^® proper form to direct an inquiry as to the novelty of the proper to invention or manufacture (2). direct inquiry _ ^ ; as to novelty. 19. Where there is a prima facie case of an infringement of a fi^^eMtin^e- ps-tent, the length of time which the patent has been enjoyed by ment, length ^jjg patentee will influence the Court in granting an injunction influences the against the parties who are alleged so to have infringed upon his rights ; and where letters-patent were dated in November, 1851, which had been duly assigned to the plaintiff, and the defendant's letters-patent were dated in January, 1859, after the Patent Law Act, 1852, Vice-chancellor Sir W. P. Wood held, that the firet patentees without registration were to be considered as sole owners (3). (1) Baird v. Neilson,8C]. Si: P. 726. (2) Spencer v. Jack, 8 Jur. (N. S.) 0. pL 9, ante. 1165. (3) Davenport v. Richard, 3 L. T. (N. S.) 503. PATENTS. 239 20. Where a defendant to a bill filed to restrain an infringement Paet I. Oh AFTER II of a patent by his answer denies the novelty of the invention, the sect. l. plaintiff, in support of a motion for an injunction, must make a if novelty is clear affidavit of his belief in the novelty of the invention (1). In ^^jf ^jf^'^^jf" an injunction suit to restrain an infringement of a patent, a plaintiff an injunction _ ,■ i< must make an movmg, m 1860, for leave to proceed at Law, no motion tor an affidavit of his injunction having been made, was bound to file an affidavit of his jjoygHy"^ belief in his title and in the alleged infringement ; and the Court, upon such an affidavit, made an order, notwithstanding an applica- tion by the defendant that the motion might stand over for the cross-examination of the plaintiff (2). 21. Where the plaintiffs were owners of a type-founding patent, The Court has and the defendant was a printer, who used types alleged to be order delivery colourable imitations of the type patented by the plaintiff, on a typgfor ^ ° bill for an injunction Vice -Chancellor Sir W. P. Wood held that analysis. the Court had jurisdiction to order the defendant to deliver a sample of type to the plaintiffs for analysis ; and that laches, Laches dis- sufficient to defeat the plaintiff's right to an interlocutory injunc- fnterloratory tion, was no bar to an order on the same motion for inspection and injunction, no ' ^ bar to an delivery of samples (3). order for in- 22. Upon the construction of the 15 & 16 Vict. c. 5, s. 2, which delivery of makes void letters-patent at the expiration of three years from the ^^™^ ^^' date thereof, unless certain stamp duties are paid before the expira- tion of the three years, the Master of the Eolls, Sir J. Eomilly, held, that the day of the date of the letters-patent is excluded, and that the three years do not expire until 12 at night of the anni- versary of the day on which the letters-patent are granted (4). 23. The specification of an invention, which consists in the use The specifica- of known materials in new proportions, is not necessarily bad for Mention! con-' uncertainty, though the patentee does not limit himself to the pro- ^'^*™f]i^ *^® portions recommended ; and where a specification stated in substance materials in that the usual practice in the manufacture of type was to employ tions, is not (1) Whitton Y. Jennings, 1 Dr. & minatiou of which the title to relief or Sm. 110. remedy in Equity depends. (2) Mayer v. Spence, IJ. & H. 87; (3) Patent Type Founding Company but see now the Chancery Regulation v. Walter, Joh. 727. Act, 25 & 26 Viot. c. 42, empowering (4) Williams v. Nash, 28 L. J, (Ch.) the Court of Chancery to decide all 886 ; 5 Jur. (N. S.) 966. questions of law and fact on the deter- 240 PATENTS. Part I. lead and antimony, and in some cases to add a small percentage Sect. 1. oi tin ; that the object of the invention was to obtain tougher ueoessarily metal, by employing tin in large proportions with antimony, t"'''^f°'th^'^th S'^^^'^y reducing or wholly omitting, the use of lead ; and that the patentee does best proportions were Seventy -flve of tin and twenty-five of antimony, self to the but that this might be to some extent varied, and that if lead were recommended ^^^'^ ^* must not exceed fifty per cent, of the whole, one part of antimony to three of tin, or tin and lead, being the best ; Vice- Chancellor Sir W. P. Wood held, on a demurrer to a bill by the assignees of the patent to restrain an infringement that the speci- fication was not bad on the face of it for uncertainty, and that the evidence of persons acquainted with the usual modes of manufac- ture was necessary to determine whether the invention was stated with suflScient precision (1). The light to 24. The right to a decree in Equity for an account of the profits an account of /.-i-i. profits made made by the manufacture and use oi articles, in the infringement nfent o™^^" ^^ ^ patent, is incident to the right to an injunction to restrain patent, is mci- future infringements, and where no case is made for the injimction dent to the ° ' •' right to re- the account will not be decreed (2) ; and this rule in patent cases, strain future ,t . r-i i- -n ■ it i • infringements, that a Uourt 01 Jiquity cannot decree an account unless it can grant an injunction, applies, notwithstanding it may appear at the hearing that since an interim injunction was moved for the defend- ant had sold articles which, had the facts and law been on the application for the interim injunction sufficiently ascertained, the Court would have restrained him from selling (3). 25. Where the owners of a patent for a peculiar mode of manu- facturing iron wheels for railway-carriages, having discovered that several railway companies were violating tlieir patent, had brought an action for damages against one of such companies only, but had not in any way given notice to the other companies to discontinue their infringements of tlie plaintiffs' right ; and in the action the validity of the patent was disputed, and it was not decided until three years after the patent had expired, when a verdict was given for the plaintiffs with large damages, and thereupon the plaintiffs (1) Patent Type Founding Com- 408 ; 23 L. J. (Ch.) 562. pany v. JUcJiard, Job. 381. (3) Price's Patent Candle Company (2) Smith V. London and South v, Bamoen's Patent Candle Company, 11 fsZo'H Raihray Company, 1 Kay, 4 K. & J. 727. PATENTS. 241 filed a bill for an account of profits and an injunction against PaetI. another of the companies who had infringed their patent, complain- seot. i. ing of acts done nine years before ; the Court held, that the delay pelayofninfi was not excused by the pendency of the action, but was fatal to the ye™ disen- J t^ J titled (here) plaintiffs' case (1). to account and 26. In an infringement of a recent patent it is not a matter of course to require the plaintiff to establish his right at Law, but the Court will have regard to the whole case made on the pleadings and by the evidence (2). 27. Where a bill had been filed to restrain the infringement of a patent, and the plaintiff, by leave of the Court, had brought an action, and failed on the ground of part of the apparatus not being new, and the plaintiff then amended the specification of the patent by disclaiming that part, and in this state of things the cause came on for hearing, but the objection was taken that under the 5 & 6 Will. 4, c. 83, s. 1 (3), the plaintiff could not maintain his case by referring to the specification as it then stood, but that it must be taken still to be as it was when the bill was filed, and the objection being fatal, Vice-Chancellor Sir W. P. Wood suggested that to save the expense of a new suit the plaintiff should pay the defendant's costs of suit up to that time, and be allowed to amend the bill, instead of having it dismissed with costs, with liberty to file a new bill ; and an order to the above effect had been made without the Vice-Chancellor's attention being called to the enact- ment in the first section prohibiting the receiving in evidence a disclaimer in any suit pending when it was filed, and the costs had been paid, and the bill amended by varying the statement of the specification, but the defendant, by answer to the amended bill, insisted on this statutory objection, which the Vice-Chancellor on a motion for an injunction being made held fatal to the suit ; the Court of Appeal, affirming the decision of Vice-Chancellor Sir W. P. Wood, held that the plaintiff was entitled, on motion, to have his bill dismissed without costs, and without prejudice to a new bill, as he had been misled by the act of the Court (4). (1) Smith V. London and South Amendment Act, 1852 (15 & 16 Vict. Western Railway Company, 1 Kay, c. 83). 408 ; 23 L. J. (Ch.) 562. (4) Lister v. Leather, 1 De G. & J. (2) ClarTc v. Fergusson, 1 GifF. 184. 361 ; 3 Jur. (N. S.) 433 ; 26 L. J. (Ch.) (3) Incorporated into the Patent Law 557. R 242 PATENTS. Part I. 28. Where a man having conjectured a new method of effecting Sect. 1. ^ desired object, takes out a patent for it, but never puts it in 7 7 7Z practical operation, that will not invalidate letters patent taken a conjectured out for the Same process by a subsequent inventor, who shall new method of . ^ _ ^ , effecting an of himself discover the same method (1) ; and where the plaintiff had put'^into^prao- obtained, in 1849, letters patent for a mode of combining lead and tical operation, ^Jq fgj, making capsule plates, by placing plates of each, of unequal validate a thickness, in contact, and subjecting them to great pressure, by ! process repeated rolling or otherwise, so as to effect great cohesion and same i fubseoTOnt'^ tenuity ; and in 1856 W., having two processes by which he made inventor. capsules abroad, the first being the same as the plaintiff's, and the second being commenced by dipping heated lead into melted tin, and then rolling out the plated block, which last W. affirmed to be the cheapest way, introduced some of such capsules into England with a view to effect sales thereof ; and the plaintiff imme- diately commenced proceedings in Chancery against the agent in England of W., and W. not assisting in the defence, a decree and injunction were taken by consent against the agent, who submitted when he found the defence thrown on him ; but in 1857 the plaintiff discovered that W. was again transmitting to this country capsules for sale, and W. swore that they were all made according to his dipping process, but he did not state how he had made sure of that fact, although it was sworn on the other side that no man could distinguish between the capsules made by the two processes ; and W. also alleged that he had, since October, 1856, discovered that in 1804 a patent had been taken out for effecting cohesion by pressure, but it did not appear that that patent had ever been worked, or was capable of being worked, for it directed equal thicknesses of lead and tin to be rolled together, which the plaintiff alleged would not do, but that they must be unequal ; Vice-Chan- cellor Sir W. P. Wood held, that the previous publication in 1804, as it did not appear to have been ever worked, and did not appear to be proper for working, did not invalidate the plaintiff's patent, although it pointed out the mode of effecting cohesion by pressure ; and even if there were great doubt as to the validity of the plaintiff's patent, yet the long undisturbed enjoyment for eight (1) Setts V. Menzies, 3 J m. (N. S.) 29 ; v. Betts v. De Vitre, 11 L. T. (N. S.) 357 ; 10 H. L. C. 117 ; 9 Jur. (N. S.) 445 ; pi. 3, anto.. PATENTS. 243 years, and the conduct of W. in not trying the question when the Pabt I. plaintiff raised it in 1856, entitled him to an injunction until the ^eot. i. validity of the patent could be tried at Law ; and semble, that W.'s second process was an infringement of B.'s patent ; and that under the circumstances the injunction would be granted, although the question of the infringement required also to be sent to a jury (1). 29. On an application for an injunction to restrain the infringe- Nature of affi- ment of a patent the party must swear that at the time of making on motion to^ the application he believes that at the date of the patent the in- J^stram in- '^ '■ '^ inngement oi vention was new, or had not been previously known or used in this patent. kingdom (2). The fact that a patent is a recent one is no ground The giant for refusing an injunction ex parte to restrain its infringement, but no'gfound'for the party seeking such injunction is bound to support his applica- refusing ca; tion by a clear and distinct statement, upon afJQdavit, Ihat he tion. believes the patentee is the original inventor, and that the iruven- tion had not been practised at the time when the patent was granted ; and where A., in May, 1856, had become pnrchaser of a patent, which was obtained in May, 1855, and which the defend- ' ant, as alleged, subsequent to the date of the purchase, infringed, and A. had obtained an injunction ex parte to restrain the de- fendant, on an affidavit in support, which stated that the patent had been recorded, and that it became and was good and valid, the injunction was dissolved on the ground that it had been obtained ex parte upon an affidavit insufficient in this respect, and with costs (3). 30. Where a patent is taken out as for an original invention, A patent, the the subject of the patent being in fact a communication from a w]uoh'is"in British subject resident abroad, the patent is void C4) : but, semlle ^'^"^ ^ commu- . \ / ' ' J nication from an agent m this country of an inventor abroad, receiving a con- a British snb- fidential communication of an invention not in a practically useful ibroairfs^'^'' state, may take out a patent for his own benefit, if he, pursuing ™^'^" the idea thus thrown out, discovers a practical way of carrying it into effect (5). And where T., the plaintiff, a British subject, resident abroad, having conceived an improvement in making pianos, had given to the son of his London agent, who happened (1) Betts V. Menzies, 3 Jur. (N. S.) (3) Gardner v. Broadhent, 2 Jur 357; 10H.L.C.117;9Jnr.(N.S.)29; (N. S.) 1041. V. Betts Y. Be Vitre, 11 L. T. (N. S.) (4) Milligan v. Marsh, 2 Jur. CN. S.) 445, pi. 3, ante. 1083. (2) Siurz V. Be la Rue, 5 Euss. 322. (5) lb. R 2 244 PATENTS. Part I. to be on a visit at T.'s house, a full description and drawings of Chapter II, , . . . „ , ^ i i , Sect. 1. the invention, marked " private, and requested the son, on his return to London, to take out letters patent or to register the invention for him, T., the son returned to London and delivered the drawings to his father, the defendant M. being T.'s Lon- don agent, and T, about the same time wrote a letter to M., not marked private, and not desiring him to take out a patent on behalf of the writer, but inquiring generally as to the invention, and whether a patent for it was being taken out ; and shortly after- wards M. took out a patent for the improvement in question in his own name, and as for an invention of his son ; and then T. having employed S. to make such pianos on his own account, M. had brought an action for the infringement of his patent against S., and thereupon T. filed a bill to restrain the action and the use of the patent by M., and the defendant M. insisted that the inven- tion, as described in T.'s communication, would not work; the Court held, on motion for an injunction, that the whole question must stand over to await the result of the action (1). 31. Where an agreement had been entered into between four per- sons who were interested in certain patents and inventions relating to gutta percha, that all patents taken out, or in the course of being taken or intended to be taken out, or that might at any time thereafter be taken out by any or either of them, or on account of and for the benefit of any or either of them, in relation to the preparation and application of gutta percha, or the manufacture of any article therefrom, should be assigned to trustees, and held for their common benefit ; and subsequently one of the parties took out a patent for " improvements in apparatus and machinery for giving shape and configuration to plastic substances," and refused to assign the patent to the trustees, alleging that it was not com- prised in the agreement ; ihe Court held, that the patent, so far as it related to gutta percha, was subject to the trusts of the agree- ment, and that it could not be treated as not being so because it was for machinery which might be applied to the manufacture of articles of gutta percha, and was not for the manufacture of any such articles (2). (1) MilUgany. Marsh, 2 Jur. (N. S.) (2) Bewley v. Hancock, 6 De G. M. 1083. &G.391. PATENTS. 245 32. Where a patent had been in force for twelve years, and had Paet i. (vH AFTER TT been, the subject of four suits against different persons, all of seot. i. which terminated favourably to the patentee, and in two of which verdicts had been given in favour of the validity of the patent ; the Court held, that in a fifth case the patentee was entitled to an injunction pending the trial of the legal right, although a fresh fact was brought forward tending to impeach the novelty of the invention (1). 33. A patentee does not acquiesce in the infringement of bis The omitting patent by omitting to proceed by scire faeias to set aside a sah- g°ife°^l^g ^^ sequent patent extending to part of his invention, unless such g^^*^'^^ \ subsequent patent is put in practice (2). patent; is not acquiescence, unless sub- sequent patent is put in practice. 34. Long and exclusive enjoyment under letters patent entitled Long and ex- a party to an injunction until an action could be tried at Law (3.) menrof p?t°^t And where there had been such lenfi^;h of exclusive eniovment ?°titj?s to in- ° J •' junction until under a patent, the Court granted an injunction in the first tiie right is instance without previously putting the party to establish this right by an action at law ; but otherwise where the patent was if patent recent (4). And where an injunction had been granted against jmJiion°i^he the infringement of a patent, that the validity of the patent might ^"l!* instance . , •' "^ ° without pro- be tried at Law, and there was a verdict for the patentee, subject vious trial of to the opinion of the Court, and upon a case the Court were"^ equally divided, the Court said the patentee must bring another action if nothing could be done on this one ; but the Court said it would not disturb the plaintiffs' possession of their specific right, and would not impose any terms upon them, nor dissolve the injunction in the meantime (5). And though the Court would not generally, in doubtful cases, restrain by injunction the infringe- ment of an asserted legal right until its validity had been established by an action at Law ; yet, secus, where there had been long uninterrupted enjoyment under a patent, that being regarded as prima facie evidence of title (6). But though the Court would But though not, in the first instance, interfere by injunction to restrain the in- S'fogUn!'"'' fringement of a patent unless there had been long and uninterrunted ^*^°''® ™*®'^" ° -t fere unless (1) Newall V. Wilson, 2 De G. M.& (Oh.) 184 ; 3 Jur. 34. ^- 282. (4) Eilly. Thompson, 3 Mer. 622. (2) lb. (5) Bolton v. Bull, 3 Ves. 140. (3) Curtis V. Cutis, 8 L. J. (N. S.) (6) Stevens v. Keating, 2 Ph. 133. 246 PATENTS. Part I. enjoyment under it, but directed an action to be brought to try Sect. 1. t^^ legal right ; yet delay in filing the bill was a ground for refusing where long ^^^ injunction ; and where the patent had been obtained in 1846, uuintenupted and the alleged infringement of it took place in 1847, and the enjoyment — r 3 -l n yet if ladies bill was not filed for more than two years afterwards, the Court tion, It^wiii"^" refused an Injunction (1). But a defendant in a suit to restrain Sist^nc^'int r ^^ infringement of a patent is entitled to dispute the validity of fere— eyeu if the patent, although the patentee has obtained a judgment at Law ment. against another person establishing its validity ; but until he has Validity of proved its invalidity he will be restrained from infringing on it (2). patent may be ^ •' o o \ / disputed by And in a suit to restrain an infringement of a patent, the validity though esta- of which had been established at Law against another defendant, action arainst ^^^ Court at the hearing being satisfied of the sufficiency of the another specification, the utility of the invention, and the fact of the person. l ' j But defendant infringement, granted an injunction to restrain him from in- restrained ^ fringing the patent, and directed an issue to be tried at Law as to infringing. tj^e novelty of the invention (3). 35. Where the plaintiff, through several mesne assignments, being in possession of a right, originally in the City of London, of supplying Southwark with water, prayed an injunction to restrain the defendant from encroaching on his right by raising engines, laying pipes, &c., the Court allowed a demurrer by the defendant, both as it was a case of great consequence to the public, and also because the plaintiff ought first to have established his right at Law, as the chance there was of the plaintiff's right falling to the ground at Law was a strong reason for the de- murrer (4) ; and in East India Company v. Sandys (5) the Court refused an injunction to stay an interloper's trading to the East Indies till the value of the East India Company's patent had been tried. 36. In Greerson v. JacJcson (6) it was.held that a patentee claim- ing an exclusive right of printing bibles was bound to establish his right at Law before he could have an injunction in Equity. And in an Anonymous Case in Vernon (7) the Court refused a motion (1) Baxter V. Conihe, 1 Ir. Ch. Eep. (4) Whitchurch v. Eide, 2 Atk. 391. 284. (5) 1 Vern. 127. (2) Bovill V. Goodier, L, R. 2 Eq. 195. (6) 1 Ridgw. L. & S. 304. (3) lb. (7) 1 Verr. 120. PATENTS. . 247 by the King's patentees for an injunction to stop the sale of Engh'sh Part I. Ohaptbb II bibles printed beyond the sea till the validity of the patent had sect. i. been tried at Law. 37. Upon a bill brought by the King's printers to restrain the defendant from the publication of certain Acts of Parliament, &c., to which the patentees for printing law books were also defendants, the Court refused to interfere between the contending parties by the summary method of injunction, both claiming under patents, but left them to adjust their rights in a due course of law, but re- strained the defendant from printing at any other than a patent press (1). 38. In Caldwell v. Vcmvlissengen (2), Vice-Chan cellor Sir G. J. Turner said, that the question whether the Court will interfere to protect a patentee before he has established his right at Law, or will suspend its interference until the right at Law has been established, appeared to him to depend upon very simple principles. He said that it is part of the duty of this Court to protect property pending liti- gation ; but when it is called upon to exercise that duty the Court requires some proof of title in the party who calls for its inter- ference. In the case of a new patent this proof is wanting ; the public, whose interests are affected by the patent, have had no opportunity of contesting the validity of the patentee's title, and the Court therefore refuses to interfere until his right has been established at Law. But in a case where there has been long enjoyment under the pateat (the enjoyment, of course, including use), the public have had the opportunity of contesting the patent ; and the fact of their not having done so successfully affords at least prima facie evidence that the title of the patentee is good, and the Court therefore interferes before the right is established at Law ; and that in the present case, he thought that the plaintiffs had proved such a case of enjoyment under the patent, and of their title having been maintained at Law against the several attempts which had been made to impeach it ; that the Court was bound at once to interfere for their protection, unless there were other sufficient grounds for withholding its interference. 39. What previous user will invalidate, and what user, if any, (1) Basketf V. Cunningham, 2 Eden, 137 ; I W. Bl. 370. (2) 9 Have, 424. 248 PATENTS. Part I. Chapter II. Sect. 1. Injunction to restrain in- fringement granted against aliens (except as to ships, vide infra). Injunction at hearing not refused because not applied for on an interlocu- tory motion. But in such a case clear title must be made out at hearing; and a prima facie title not sufiScient. can be admitted in contravention of the patent right, are dififerent questions, depending, one upon the extent of previous knowledge, the other upon the effect of the grant (1) ; and there may be a case of necessity in which there might be an innocent use of a patent (2). 40. Upon a motion for an injunction against the infringement of a patent, an allegation as to the defendant's inability to be answerable in damages is not irrelevant (3). 41. In Caldwell v. Vanvlissengen (4) the Court granted an injunction against subjects of the kingdom of Holland to restrain them from using on board their ships within the dominions of England, without the license of the plaintiffs, an invention to the benefit of which the plaintiffs were exclusively entitled under the Queen's patent (5). But the user on board an English vessel in an English colony of an article the subject of patent for the United Kingdom is not an infringement (6). 42. Where a bill is filed by a patentee for an injunction to restrain an alleged infringement of his patent, the plaintiff is not precluded from asking for an injunction at the hearing by the fact of his not having applied for it on an interlocutory motion ; but the not moving for an injunction imposes on the plaintiff in such a case the obligation of making out a clear and unexceptionable title at the hearing; and if he fails in that, and has not previously obtained an injunction, he will not be allowed to use the facts proved in the cause as evidence of a prima facie case, giving him a right to further time for the purpose of enabling him to establLsh navigation of any foreign ship or vessel, which may be in any port of her Ma- jesty's dominions, or in any of the waters within tlie jurisdiction of any of her Majesty's Courts, where such invention is not so used for the manufacture of any goods or commodities to be vended within or exported from her Majesty's dominions," with a proviso excepting ships of foreign states in whose ports British ships are prevented from using foreign inventions. (6) Newall v. Elliott, 10 Jur. (N.S.) 954. (1) Caldwell v Vanvlissenyeu, 9 Hare, 428-429. (2) Caldwell v. VanvKusengen, supra; et V. Universities of Oxford and Cam- bridge v. Bicliardsoii, 6 Ves. 689 ; Minter v, Williams, 4 Ad. & E. 251. (3) Newall v. Wilson, 2 De G. M. & G. 282. (4) 9 Hare, 415. (5) But by the 15 & 16 Vict. c. 83, s. 26, it is enacted that " No letters patent for any invention (granted after the passing of the Act) shall extend to prevent the use of such invention in any foreign ship or vessel, or for the PATENTS. 249 more satisfactorily his legal title (1) ; and where, in August, 1835, Past i. a patentee filed a bill to restrain an alleged iafringement of his sbot. i. patent, and the defendant having by his answer denied the validity of the patent, and also the fact of the alleged infringement, the plaintiff made no iaterlocutory applicatioa for an injunction, but went into evidence in support of his case, and in May, 1839, brought the cause to a hearing ; the Master of the EoUs, Lord Langdale, being of opinion that the plaintiff, upon the evidence, had not made out a case which would have supported an injunction if applied for in the interlocutory stage, refused to give him an opportunity of establishing his title at Law by restraining the bill, with liberty to bring an action, and dismissed the bill with costs ; and the Lord Chancellor, Lord Cottenham, on appeal, affirmed the decision (2). The Lord Chancellor said that the jurisdiction The juiisdic- of this Court is founded upon legal rights, the plaintiff coming into court is this Court on the assumption that he has the legal right, and the wai rights Court granting its assistance upon that ground ; and that when a ^^<^ ^^'^ . party applies for the aid of the Court, the application for an in- that the plain- junction is made either during the progress of the suit or at the jegal right, hearing, and in both cases he apprehended great latitude and dis- cretion were allowed to the Court in dealing with the applications ; and that when the application is for an interlocutory injunction several courses are open : the Court may at once grant the iniunc- Courses open . ,. ., . , •■ ■ , n 1 PI to the Court tion simpUciter, without more — a course which, though perfectly on interlocu- competent to the Court, is not very likely to be taken where the ^^ ^^^ ^°*" defendant raises a question as to the validity of the plaintiff's title — or it may follow the more usual, and, as he apprehended, more wholesome practice in such a case, of either granting an injunction and at the same time directing the plaintiff to proceed to establish his legal title, or of requiring him first to establish his title at Law, and suspending the grant of the injunction until the result of the legal investigation has been ascertained, the defendant in the mean- time keeping an account, and that which of these several courses ought to be taken must depend entirely upon the discretion of the Court, according to the case made, and that when the cause comes to a hearing the Court has also a large latitude left to it ; and that (1) Bacm V. Jones, 4 My. &Cr. 433 ; tiswoode, 1 Beav. 382 ; 3 Jur. 476, 994. affirming S. C. sub nom. Bacon, v. Spot- (2) lb. 250 PATENTS. Part I. he was far from saying that a case might not arise in which, even Chapter II •' o o Sect. 1. ' at that stage, the Court would be of opinion that the injunction The course niight properly be granted without having recourse to a trial at of tlie Ociurt at La,w J and that the conduct and dealings of the parties, the frame of the pleadings, the nature of the patent right and of the evidence by which it is established, these and other circumstances might com- bine to produce such a result, although this was certainly not very likely to happen, and that he was not aware of any case in which it had happened. Nevertheless, it was a course unquestionably competent to the Court, provided a case were presented which satisfied the mind of the judge that such a course, if adopted, would do justice between the parties ; and again, that the Court may, at the hearing, do that which is the more ordinary course, it may retain the bill, giving the plaintiff the opportunity of first establishing his right at Law ; and that there still remained a third course, the propriety of which must also depend upon the circum- stances of the case, that of at once dismissing the bill. In CoUard V. Allison (1), where the validity of the patent was not clear, nor the evidence of exclusive possession satisfactory, the Court reiused an injunction until the validity had been tried in an action at law. So, where, after a verdict, and pending a rule nisi for a new trial, the right at Law was still undecided, although a patent may be long standing, yet, if from the nature of the alleged invention, or the conflicting evidence of its novelty, its validity appears to be doubtful, the Court will not grant an injunction until the title has If defendant been established at Law (2). And if the answer to a bill to prevent denies novelty , . „ . „ and enjoy- the infringement of a patent deny the invention to be new, and specification ^■^so the enjoyment under the letters patent, and state (as is the setTorthlf ^ fact) that the specification is imperfectly set forth in the biU, the bill. Court Court will dissolve an injunction previously obtained, on affidavit, will dissolve . . i i • • m. i -i , an injunction giving the plamtifl liberty to bring an action, although the defen- affid'avit,"'^ dant admits by his answer that he has made machines upon the tiff'ubert^'to P^i^^ipl^ comprised in the letters patent (3). bring an 43. In Bridson V. Beneche^(4:), where a special injunction on notice to prevent the infringement of a patent had been refused (1) 4 My. & Cr. 487. (3) Curtis v. Cutts, 8 L. J. (N. S.) (2) lb. (Ch.) 184 ; 3 Jur. 34. (4) 12 Beav. 1. PATENTS. 251 on the ground of delay, notwithstanding the Court had a strong Part I. OhaptEjB II impression in favour of the plaintiff's right, and at the hearing an sect. i. injunction was also refused, and the plaintiff put to establish his legal rights, and the plaintiff was successful on the trial, but the defendants tendered a bill of exceptions, the Court granted an injunction, under the pircumstances, before the bill of exceptions had been disposed of. But in Bridson v. McAlpine (1), in a patent case, a motion for an injunction was ordered to stand over for the plaintiff to bring an action to establish his right. The plaintiff obtained a verdict, but the defendant tendered a bill of exceptions, which could not be determined without some considerable delay ; and upon the motion being renewed, the Court, under the circum- stances, ordered it to stand over till the bill of exceptions had been disposed of. The Master of the Eolls, Lord Langdale, in this case said, that in every case of this kind it is importaat to consider what it is that the Court can most satisfactorily do provisionally ; that where an injunction is asked to restrain the infringement of a patent, the Court has occasion to consider, first, the validity of the patent, and, secondly, the fact of the infringement, and that Where vali- where those two facts are established it is within the power, as it fringement are is the duty, of the Court to grant the injunction ; that there are court grants many cases in which it is not clear either that the patent is legally *te injunction. valid, or that it has been infringed, and that it depends on the degree of doubt which exists on these questions whether the Court will grant the interim injunction. In such cases it will cautiously Where consider the degree of convenience and inconvenience to the parties ^fr^gement by granting or not granting the injunction ; and the Master of the !? ^°V^^' '^® -nil -IT 1 • Court cou- KoUs said that these things are to be carefully considered ; that aiders the the right between the parties is a legal right, and being a legal Tenience an"d ' right, this Court, in cases where the matter is doubtful, is natu- loftTSiT rally anxious to obtain the decision of a Court of Law, where the ^^ granting .. . 1 •-,-,,■, , injunction. matter is properly cognisable (but now the Court of Chancery has jurisdiction), before it interferes to prevent a party exercising his prima facie rights. That according to the doubt which may exist in the mind of the Court upon the facts, and according to the degree of inconvenience to the parties, the Court, not thinking fit to grant the injunction at the time, may take one of several courses : (1) 8 Beav. 229. 252 PATENTS. Part I. it may either refuse to grant the injunction simply, or it may Seot. 1. " refuse it on the terms of the party undertaking to keep an account, or it may direct the motion to stand over on the terms of the plaintiff proceeding to a trial at Law (and now to a trial before itself). The right to 44. Upon the invasion of a patent right the party complaining subsists has a right to the protection of an injimction, although the other be™ promSe V^^^J ^^J promise to commit no further infringement and may to commit no offer to pay 'the costs of preparing the bill ; and if the defendant infringement does not, after injunction obtained, offer to pay the costs of it, the injunction plaintiff may bring the suit to a hearing, and will be entitled to plaStiff may *^® °°®*® °^ *^® ®"'* ' *^^ qusere, whether in such a case the Court bring cause to ^ju nriye an account of damages (1). heanng unless ,-, ■, /^ defendant 45. Where, by the 26 Geo. 3, c. 57, s. 1, the Crown was autho- costrof'suit rized to grant letters patent for establishing and keeping a theatre in Dublin ; and by sect. 2 it was enacted that no person should, for hire, act any play in any theatre in Dublin except in such theatre as should be so established by letters patent, under the penalty of forfeiting £300 for every such offence, to be sued for by the common informer; and under this statute the Crown granted letters patent to H., authorizing him, during a certain time, to keep a theatre in Dublin, and His Majesty prohibited and forbid all persons whatever during the term to keep open, in any manner, any theatre in Dublin, and therein to act any play, unless Injunction they should be authorized by His Majesty ; the Court held, that ableon ground the patentee could not maintain a bill for an injunction to restrain °i ™rff *' 'd unauthorized persons acting plays in a theatre in Dublin, for the where plaintiff keeping of which no patent had been granted, and that such a can maintain ,.,,,,,, . . , , t n . . i an action on bill could Only be maintained upon the ground oi interest m the ecase. plaintiff; and unless he could sustain an action on the case the injunction could not be supported (2). 46. A new adaptation of old materials is sufficient to ground an injunction against the infraction of a patent (3). 47. In Crossley v. Derby Oasliglit Company (4) the Court, upon (1) Qeary v. Norton, 1 De G. & Sm. 9. 675, 901 ; Hill v. Tuif^er, 2 H. & C. 121. (2) Calcraft v. West, 2 J. & Lat.123 ; (3) Luckie v. Ed)Son, 2 Jur. 201. 8 Ir. Bq. l!er.74; eii;. Achroyd v. Smith, (4) 1 Euss. & My. 166 ; 4 L. J. (JST. S.) 10 C. B. 164 ; Whdeyy. Laing, 3 H.& N. Ch. 25. PATENTS. 253 the suggestion that the defendant had a large stock of the pirated Pakt I. articles on hand ready to be thrown into the market as soon as gj.0T. i. tlie monopoly was at an end, which they had no right to do, to the prejudice of the plaintiff, who had the exclusive privilege of manufacturing during the fourteen years, granted, on an ex fo/rte motion on the bill and affidavits proving the infringement, an in- junction generally to restrain the sale, both before and after the term limited by the patent, of machines piratically manufactured while the patent was in force. 48. In Earmer v. Plane (1) the Court granted an injunction Injunction is upon the ground of possession by the patentee, that is to say, a ffeasonaWy" reasonably long and undisputed possession under a patent, until ^?/^^ f^^ ^^' the right could be tried, though subject to considerable doubt, the session. patent being for improvement upon a machine the subject of a former patent expired, and the specification described the original machine with the improvement as one entire machine, the subject of the latter patent not distinguishing the improvement. The Lord Chancellor (Lord Eldon) observing, that where the Crown on behalf of the public grants letters patent, the grantee entering into a contract with the Crown, the benefit of which contract the public are to have, and the public have permitted a reasonably long and xhe public undisputed possession under colour of the patent, the Court has P^'^™'**™^ thought, upon the fact of that possession proved against the public, long and un- ■ 1 , .1 -1 . . . ,. 1 ■ . . disputed pos- tnat there is less inconvenience m granting the injunction until the session there- legal question can be tried than in dissolving it at the hazard that venience^n""" the grant of the Crown may, in the result, prove to have been g^*°t™g i^- ° '■ junction until valid. trial of right, than in dissolving it. 49. Where a patentee applied to the Court of Chancery to stay The Court has all proceedings on a scire facias to repeal the patent, or that a to stay pro-^ nolle prosequi might be entered on the ground that the prosecutor '^^) Betts V. Be Vitre, 11 Jur. (N.S.) 9. (3) lb. (6) lb. (4) Dangerfield v. Jones, 13 L. T. PATENTS. 257 in fact derived from it as would arise from it in its ordinary use ; Pakt i. it is immaterial whether the use of the article is active or pas- sbot. i. sive (1). And where ale was sent from Scotland to England, for patented transhipment to India, in bottles covered with capsules made ^.'■''"l^ ™ *''^i- ^ . . sition through abroad, according to a mode of manufacture patented in England England, is an only, the Lords Justices held, affirming the decision of Vice- of the'patent. Chancellor Wood granting an interlocutory injunction, that the transitory resting in England of the bottles so covered constituted a user in infringement of the English patent (2). In this case B. was a patentee of the article, a substance for making capsules to cover the mouths of bottles so as to render them air-tight ; and A., a brewer in Scotland, to which country the patent did not extend, sent to an -English port for shipment to his foreign customers bottles of beer covered with similar capsules made abroad ; the Lords Justices held, that since the capsules during the time of the bottles being in England were answering the purpose for which they were intended — of preserving the liquor — there was a user of the invention in England which ought to be restrained by injunction (3). 60. Though the manufacture in this country of the several parts of a patented machine, and the exportation of those parts may not be an infringement of the patent, the machine being the novelty, and the parts being old, it is otherwise where the part exported is itself the patented invention (4). 61. A plaintiff in a suit to restrain an infringement of a patent Plaintiff who who has iiled a replication is not, where the Court has refused to^^f.^^^'^'^fP^'" cfttion, not direct issue, entitled to require the defendant, by analogy to the e°™ed in practice at Law, to deliver particulars of his objections to the require deli- validity of the patent (5). ticulars of objections tofa^fdity. 62. In a patent case evidence cannot be given on the trial of an Svidenoe can- issue in respect of objections not specified in the particulars ?"* ^® ^'J'^'i required to be delivered under 15 & 16 Vict. c. 83, s. 41, even objections not though the evidence was not discovered till after the delivery of particulars^ unless with special leave. (1) Betts V. Neilson, 3 De G. J. & S. (4) Ooucher v. Clayton, 11 Jur. (N. 82;L.B.3Ch.429;34L.J.(Ch.)537; S.) 4G2. 11 Jur. (N. S.) 679 ; 13 W. E. 804. (5) BoviU v. Ooodier, L. R. 1 Eq. (2) lb. 35 ; 11 Jur. (N. S.) 900. (3) lb. 258 PATENTS. Pakt I. the particulars ; but a specific motion must be made for leave to CHArTEK II. , ., . /, , Sect. 1. put it m (1). „ „ , 7 63. In a suit to establish the validity of a patent to restrain can be ordered infringement, upon an application by the plaintiff for an inspection of maohmes of all the sewing machines of every kind on the defendant's pre- duoeoneo™" ^^i^es, the defendant was ordered to verify the several kinds of each for sewing machines which he had sold or exposed for sale, and to inspeotion. ... . . produce at his solicitor's office one of each class for inspection by the plaintiff's solicitor and two of their scientific vntnesses (2). Neither party 64. Neither defendant nor plaintiff in a suit to restrain an ex dehitoju's- infringement of a patent has any right to have the issues and iss'iSsoffact questions of fact referred to and tried by a jury ex debito justitim, referred to a amj -where the issues raised have been already determined, such jury. _ _ _ / But if a really reference will in general be refused ; but if it appears that there tion at issue^^" '^ ^ really doubtful question at issue, the Court will not decide it Court will for itself if either party desires a iury (3). direct a jury jr j j j \ / if either party 65. Where an agreement was entered into between K. and P. that K. should take out a patent for purifying paraffine and as- sign it to P. ; that P. thereupon would work it for fourteen years, if it could be so long worked with profit, and would not purify paraffine by any other process, and would pay to K. a royalty ; that P. would keep accounts of all paraffine purified according to the patent, and that the provisions of this agreement, and all other provisions usual and proper in such deeds, should be incorpo- rated in the deed of assignment of the patent, to be prepared by counsel agreed on by the solicitors of the. parties ; and the patent was taken out, and P. commenced working under it, but shortly afterwards abandoned the use of the process, alleging that it could not be worked at a profit, and refused to pay any royalty ; and K. thereupon brought an action for royalties and recovered judgment; and pending this action P. gave notice to determine the agreement because the invention could not be worked to a profit ; and K., after obtaining judgment, filed his bill asking for an account of sub- sequent royalties, an injunction to restrain the defendant from (1) Daw V. Eley, H Jur. (N. S.) (3) Davenport v. Goldberg, 2 H. & 923. M. 282 ; Bovill v. Hitchcock, L. K. 3 (2) Singer Manufacturing Company Ch. 417 ; 16 W. E. 321 ; 37 L. J. (Ch.) V, Wilson, 13 W. R. 560. 223. PATENTS. 259 purifying paraffine under any other process, and for a reference to Pakt I. chambers to settle a proper deed of assignment, or if the Court sbot. i. should hold the agreement to have been determined, then for relief against the defendant as an infringer of the patent ; the Court held that in a case of this nature it was in the discretion of the Court whether it would direct an account or leave the parties to their remedy at Law ; and that the account being only a part of an Where the agreement, which the Court could not wholly enforce, the plaintiff was only part ought to be left to his remedy at Law, and that for the same ^g™ ^^^^ reason the execution of the assignment ought not to be decreed (1). the Court wholly enforce, the plaintiff was left to his remedy at Law. 66. Where the directors of a limited company, and acting as its if directors of agents, infringed a patent and were made defendants, together p^^y infringe" with the company, to a suit the bill in which prayed for an in- ^g^^ee^*'-!?^ junction and costs, the Court held that the decree must be made against them , . 1 I 1 T ^^ w^ll ^3 the against the directors as well as the company, and that the directors company- were personally liable to pay the costs (2) ; and directors of a com- ^rrectors per- pany are personally responsible for the infringement of a patent by penally liable 10 costs. their workmen, notwithstanding such infringement may be in con- travention of orders. And see this case (3) for the form of an order for a perpetual injunction to restrain defendants from further infringement of patent as to costs personally against directors of a limited liability company, and as to accounts and inquiries to ascertain damages sustained by a patentee in consequence of the infringement of his patent. 67. Where a bill prayed for an injunction against the infringe- Though the ment of a patent by the defendant, for an account of profits, and for before'th?'™ damages, and after the filing of the bill, but before the hearing of hearing of the cause, the patent expired ; the infringement being proved, jurisdiction Vice-Chancellor Wood held, that, notwithstanding the rule — no in- flUng bill and junction no account — its jurisdiction related back to the time of the eltitief to an tiling of the bill, and awarded damages under Sir H. Cairns' Act inquiry as to (21 & 22 Vict. c. 27) (4) ; and in directing an Inquiry as to what Form of the damage the plaintiff had sustained the Vice-Chancellor said, that ™^""y- (1) Kernot v. Potter, 3 DeG. F. & J. (3) 11 Jur. (N. S.) 217. 44:7. (4) Davenport v. Bylands, L. R. 1 (2) Betts V. Be Vitre, 11 Jur. (N. S.) Bq. 302 ; 35 L. J. (Ch.) 204 ; 14 W. E. 9 ; 37 L. J. (Ch.) 325 ; L. R. 3 Ch. 429 ; 243. 18 L. T. (N. S.) 165; 16 W. R. 529. S 2 260 PATENTS. Part I. the inquiry would be in the form, " what damage the plaintiff had Sect. 1. sustained," and not " what damage, if any," he had sustained, as it would be in the case of a trade mark ; and that there was this difference between the case of a trade mark and that of a patent : that in the former case the article sold is open to the whole world to manufacture, and the only right the plaintiff seeks is that of being able to say, " Don't sell any goods under my mark ;" that he might find his customers fall off in consequence of the defendant's manufacture, but that it does not necessarily follow that the plaintiff can claim damages for every article manufactured by the defendant, even though it he under that mark ; that, on the other hand, every sale without license of a patented article must be a damage to the patentee ; and the Vice-Chancellor said, that the inquiry must extend to the sale by the defendants of any articles manufactured by them within six years before the filing of the bill, and up to the expiry of the patent, by that process the exclusive use of which was secured by the letters patent mentioned in the bill (1). But where F. obtained a patent for umbrella ribs, and enjoyed it uninterruptedly to its conclusion, with the exception of an action for damages by another patentee, who recovered £300, and a manufacture and sale of the ribs by D. & D. six months before it expired ; and F. filed a bill and restrained D. & D., and the cause came to a hearing nine months after the expiration of the patent ; Vice-Chancellor Sir W. P. Wood held, that the Court could direct an account notwithstanding the expiration of the patent, but that it must be in a case where there was no doubt as to its validity (2) ; but that F's invention was neither novel nor important, the two requisites to support a patent, and that the bill must therefore be dismissed with costs (3). 68. The right to full costs given by 15 & 16 Vict. c. 83, s. 43, to a patentee, when the validity of his patent has been established in a prior suit, exists, notwithstanding the fact that the validity of the patent is not questioned in the subsequent suit (4). 69. Semhle, f&r Lord Chancellor Chelmsford, that on an issue (1) Davenport v. Eylands, L. R. 1 15 W. R. 194. Eq. 302 ; 35 L. J. (Ob.) 204 ; 14 W. R. (3) lb. 243. (4) Davenpm-t-v. Eylands,h.'&.l'&i- (2) Fox V. Dellestable, Fox v. Jwes, 302 ; 35 L. J. (Oh.) 204 ; 14 W. B. 243. PATENTS. 261 whether the specification did " particularly describe and ascertain Part I. the nature of the invention," the question of Tariation between the seot. i. provisional and complete specification may be gone into (1). 70. After the law officer of the Crown has allowed a provisional After a pro- specification it is no longer open to objection on the ground officationhas mere generality, although a departure in the complete specifica- i^l^^o linger tion from a description in the provisional one will invalidate the "P®" *° objeo- '■ ^ _ _ _ _ tion on ground patent (2). But where a provisional specification described an of mere gene- invention as consisting in " the employment of wood in the bear- parture in the ings and bushes of screw and submerged propellers," and tbe °?^Py*^'*P®' complete specification explained the mode of performing the f''"™ ^^^ quc,MBe!i,v. 595. PATENTS. 263 78. Where W. took out a patent for improvements in ladies' Part i. Chapter II veils, consisting in the folds being the same on both sides instead sbot. i. of as theretofore made, one side having been a wrong side, and E. bought the patented articles of W. for some time, but ultimately employed a manufacturer of veils, who supplied him with 174 dozen veils identical with those of W., and admitted to be made after the pattern of one of them ; on a biU for an injunction to restrain the manufacturing and selling, and infringement of the patent, Vice-Chancellor Sir E. Malins held, that there was no proper subject for a patent, and dismissed the bill, but without costs (1). 79. Where an inventor took out a patent in France, and sub- sequently an English patent, the subject matter of which was wholly included in the French patent, and he afterwards allowed the French patent to drop, by default in paying the annual dues required by the French law to keep it alive ; and accordingly this patent was, by a judgment of deeheance pronounced by a French Court, in February 1866, declared void as from February 1864 ; and in March 1865, a bill was filed by the assignee of the English patent to restrain the defendant from infringing it; and in January, 1866, a decree was made establishing the patent and awarding an injunction ; on motion, in 1867, to commit the de- An English fendant for breach of this injunction, Vice-Chancellor Sir W. P. ^^ wither*'" Wood held, first, that the inventor's English patent being iden- French patent tical with his French patent, it was by force of the 15 & 16 Vict. sect. 25 of c. 83, s. 25, determined in this country from February 1866, the c. 8.3 deter- ' date of the annulment of the French patent, but not sooner ; ^e dat^'orth secondly (the injunction granted in January, 1866, being only co- annulment of ... .111 ■, ^^^ French existent with the patent expired when the patent was determined), patent. that although the French patent was declared void as from a date anterior to the decree, yet the defendant was not estopped by the decree from raising this defence on the motion ; and, thirdly, that the judgment of the French Court given in the presence of the in- ventor was binding on his assignee ; and the Vice-Chancellor held, that the 15 & 16 Vict. c. 83, s. 25, applies where a foreign patent is de facto granted, though it is afterwards cancelled ah initio (2). (1) WTiife V. Toms, 17 L. T. (N. S.) 348 ; 37 L. J. (Ch.) 204. (2) Daw V. Mey, L. E. 3 Eq. 496 ; 36 L. J. (Ch.) 482 ; 15 L. T. (N. S.) 559. 264 PATENTS. Part I. 80. Where bills in Equity to restrain the infrinsrement of a Chapter II. . Seot. 1. patent have been filed against both the person who manufactures In bills ^^^ the person who uses the article, and issues of fact have been m^nufLtoer ^^^^^ ^°^ *^® plaintiff, it is the right of the plaintiff to have not and party only an account against the manufacturer, but also damages against article, plain- the person using the article wherever it may be found (1). not only to^n ^^' Where in a suit to restrain the infringement of a patent account issues are directed, and the iudge certifies that the validity of the against manu- . . fticturer, but letters patent came in question, the plaintiff cannot at the hearing against person of that suit have more than party and party costs, the provisions using article, ^f ^j^^ p^^^^^ ^^^ Amendment Act, 1852 (15 & 16 Vict. c. 83), s. 43, applying only to subsequent actions or suits, and not to the costs of a first trial, whether at Law, or of issues of fact in this Court, but only to the costs of a second trial upon production of the record of the first trial with the certificate indorsed (2). Patentee 82. A patentee must prove not only a user of his patent, but unauthorized that the user was unauthorized ; and when a man himself disposes "^®'" of articles abroad very clear proof vrill be required that with the goods he did not also transfer to the purchasers leave and heense to use them as they thought fit ; and the fact that he gave a mere general injunction to his agents not to sell in England will not be sufficient (3). 83. A patentee cannot maintain a suit in Equity against a retail dealer who innocently sells articles which are an infringement of his patent, provided such retail dealer gives full information as to the persons from whom he obtained the articles complained of, and promises not to retail any more ; and where the patent has expired, and the infringement is innocent, accidental, and trivial, a bill for an injunction will be dismissed (4). 84. The importation of an article manufactured abroad, but pro- tected by English letters patent, is an infringement of the English patent (5). No relief 85. Courts of Equity will not entertain a patent suit when the has^ifraSi-" bill is filed SO shortly before the expiration of the patent that it is cally expired. ,^.jj^^ h j, or,„ o.^ o. (3) Beits v. WiUmott, L. E. 6 Ch. (1) Penn y.ljack, ^^ «• ^.^.^'^f' ^^ 239 ; 19 W. E. 369. ^Fernie,)^"'-''^''-''''"- (4) Betts v. Waimott, 18 W. E. (2) lb. 946. (5) ElmsUe v. Boursier, L. U. 9 Eq. 217; 18W.R.665; 39 L. J. (Ch.) 328. PATENTS. 265 impossible for the plaintiffs to obtain any relief except damages ;■ Part I. Oh AFTER IT and where a prolonged term expired on the 12th of January, 1868, seqt. i. and on the 8th of January the plaintiff filed his bill in this case for an injunction, and an account of profits, or an inquiry as to damages, Vice-Chancellor Sir W. M. James said he entirely agreed with the present Lord Chancellor Hatherley's remarks in Daven- port V. Bylands (1), but that they were never intended to apply to a case in which for all practical purposes the patent had expired before the bill was filed; that the bill was filed when everybody must have known that it was impossible the plaintiff could obtain any equitable relief whatever ; that there could not possibly be time to get an injunction, and that the plaintiff could only obtain damages, which were properly sought by an action at law ; and that the bill was an attempt to transfer that jurisdiction to this Court, and he dismissed the bill with costs (2). 86. Where a patentee, acting through his solicitor, assigned the Patentee is sole benefit of his patent, and the solicitor neglected to register, in ofhissoUoito/ pursuance of s. 35 of the Patent Law Amendment Act (15 & 16 take^X^n- ' Vict. c. 83), the assignment, and the patentee proceeded to assign, tageofhia with notice of the prior assignment, the benefit of his patent to register the other persons, and after a bill had been filed by the original ^^^'snmen . assignee the deed was registered ; Vice-Chancellor Sir R. Malins held, that the patentee was bound by the act of his solicitor, and could not take advantage of his solicitor's omission, that such a course would be contrary to all the principles of Equity. And the Vice-Chancellor said, that if it were necessary to decide it he should probably hold that the registration in this case related back, so as to enable the plaintiff to come here (3). 87. Under a patent for an arrangement and combination of A patent for parts, protection will not be given against the use of any particular ^enranl^" part which is not novel, and the adaption of a sliding door to a "o'^^'f^^o'^ spherical lamp, sliding doors having previously been applied to °°* protect a cylindrical lamps, and to other glazed surfaces, cannot of itself be the subject of a patent (4). (1) L. E. 1 Eq. 302 ; 14 W. E.243. (4) Parkes v. Stevens, L. E. 5 Ch. (2) BeUs V. GalMs, 18 W. E. 945. 36 ; L. E. 8 Eq. 358 ; 18 W. E. 233 ; (3) Eassall v. Wright, L. E. 10 Eq. 22 L. T. (N. S.) 635 ; 38 L. J. (Ch.) 509 ; 18 W. E. 821. 627. 266 PATENTS. Part I, 88. A patent for improvements will not be bad on the ground of Sect. 1. pi'ior user, though previous use be proved of an article of the same kind, with appendages exactly answering the words of the specifi- cation, if the appendages to the article previously used had a dif- ferent object to that of the patented improvements and did not produce the same effect ; and under these circumstances the specifi- cation is not bad for being too extensive, and including the article previously used, provided the description and diagrams are such as to enable any workman of ordinary intelligence to produce at oQce the article intended to be patented (1). 89. A specification may consist partly or entirely of a draw- ing (2). 90. Where the plaintiff had obtained a patent for the use of animal fibre, by preference Russian wool, or wool of a coarse tex- ture, in the manufacture of artificial^ hair to be made up as ladies' head-dresses, and for upholstery, and other like purposes ; upon bill filed to restrain an infringement, Vice-Chancellor Sir R The use of a Malins held, that the specification was too extensive; that even to produce a the use of a new material to produce a known article could not be d^°^ot en-^^' *^^ subject of a patent unless some invention and ingenuity were title to a displayed in the adaptation : that in this case a prior user of wool patent, unless „, ni, ■ t invention dis- for the Same purpose was proved by the evidence, and that the P aye • jjj^j must be dismissed with costs (3). 9 1 . Publication of an invention in terms of mere generality, or not true to their full extent, will not invalidate a subsequent patent the specification of which is limited and accurate, and gives a specific rule of practical application. And a prior publication to have that effect must be one from which a person with ordinary knowledge would be able practically to apply the discovery without further experiment ; if something remains to be ascertained there Aspeoifioation is room for another valid patent. And a specification of a patent does does not differ Tm,„ ,, ,,.. „ . ■ ,. ,^ from any other not difler irom any other publication of an invention for the pui> an invention, po^e of invalidating a subsequent patent for the want of novelty (4). The question of the identity of two specifications for the purpose (1) Poupard v. Fardell, 18 W. E. (3) Sushton v. Crawley, L. E. 10 Kq. 127 ; 21 L. T. (N. S.) 696. 522. (2) lb. overruling Ex parte Fox, 1 (4) Eilh v. Evans, 4 De Gr. F. & J' V. & B. 67. 288 ; 31 L. J. (Ck) 457. PATENTS. 267 of deciding as to the novelty of an invention, is one of fact, to be Part i. 1 £1. X ii, • /I \ Chapter II. left to the jury (1). Seot. i. 92. A manufacturer who professes to sell to the public a machine under his own name, as one with all the newest improvements, will not be restrained from selling it on an allegation that it is an infringement of the plaintiffs' patent for a machine which was an old machine, but which had not the modern improvements to it (2). 93. When a patentee has taken out a fresh patent for improve- ments on his original invention, it is sufficient if, reading his second specification with the iirst, an artisan would have no substantial difficulty in ascertaining what was claimed (3). 94. In a bill to restrain an infringement of a patent an express Express aver- averment of the novelty of the invention protected by the patent novelty not is not necessary (4). necessary in 95. On an issue directed in a patent suit on the question of novelty, the proper form is to direct two issues : one newness of manufacture, the other newness of invention (5). 96. A plaintiff in a patent suit is bound to answer all the inter- rogatories of a defendant which are fairly calculated to shew that the patent is not a good patent, or that that which a plaintiif alleges to be an infringement is not an infringement (6). 97. When a defendant to a suit in which replication is filed has given evidence of instances of prior user not mentioned in his answer, and leave has been granted to the plaintiff, on the ground of surprise, to adduce fresh evidence to disprove these instances, the defendant will not necessarily be entitled to bring further evidence to rebut the fresh evidence so adduced by the plaintiff, the defendant's counsel not being able to specify any poiat on which fresh evidence was required (7). 98. A prior publication will not invalidate a patent unless it has (1) Eilh V. Evans, 4 De Gf. F. & J. 663; 38 L. J. (Oh.) 593; 17 W. E. 288 ; 31 L. J. (Oh.) 457. 849 ; 20 L. T. (N. S.) 654. (2) WUlcox and Oibbs Sewing Ma- (5) Spencer v. Jach, 3 De G. J. & S. chine Company v. Wood, 20 L. T. (N. 346. S.) 10. (6) Hoffman v. Postill, 17 W. B. (3) Parhes v. Stevens, 38 L. J. (Oli.) 901 ; 20 L. T. (N. S.) 893. 627 ; L. B. 8 Eq. 358 ; 17 W. E. 846. (7) Poupard v. Fardell, 18 W. B. 59. (4) Amory v. Brown, L. B. 8 Eq. 268 PATENTS. Part I. imparted information so as to enable any one working upon it to Ohaptbr II Sect. 1. reckon with confidence on the result (1). And in order to establish the prior public use of a patented article so as to invalidate the patent, it is not necessary to shew that the article had been manufactured for sale (2). 99. The specification of a patent may describe the process to be adopted so insufficiently as to invalidate the patent, and yet dis- close enough to shew that what is claimed by a subsequent patent is not new (3) ; but whether a specification contains a sulBcient description can only be ascertained by experiment ; and in making the experiment knowledge and means may be employed which have been acquired since the date of the patent (4). 100. The Court of Chancery has jurisdiction under 21 & 22 Vict, c. 27, to award damages for the infringement of a patent in addition to directing an account of profits, and this although damages may not be specifically prayed for by the bill (5). 101. A patentee of an invention applicable to part of a machine who, himself a manufacturer, has been in the habit of licensing the use of his invention by other manufacturers on payment of a fixed royalty for each machine, who has obtained against an infringing manufacturer a decree for damages, " by reason of the user or vending" of the invention, is not entitled to claim, by way of damages, any sum beyond the ordinary royalty (6). Therefore he / is not entitled to claim, in addition to his ordinary royalty, a manufacturing profit ; and, d fortiori, not such a manufacturing profit as he would have made if every unlicensed machine had been sent to him to be fitted with the invention (7) ; but otherwise if he had been in the habit of charging infringers with a higher royalty than ordinary licensees (8). And where a plaintiff having, in another suit, obtained a decree against certain wrongful users (not being manufacturers) of unlicensed machines fitted by the de- fendant with his invention, had in some instances been paid his (1) Betts V. Mihon, L. K. 3 Ch. 429 ; (4) lb. 3 De G. J. & S. 82 ; 37 L. J. (Ch.) 321 ; (5) 37 L. J. (Ch.) 321 ; L. E. 3 Ch. 18 L. T. (N. S.) 165. 429 ; 16 W. E.. 524. (2) lb. (6) Penn v. Jack, L. B. 5 Eq.. 81 ; (3) Setts V. Neilsm, L. R. 3 Ch. 429 ; 37 L. J. (Ch.) 136 ; 16 W. E. 243 ; 17 37 L. J. (Ch.) 321 ; 18 L. T. (N. S.) L. T. (N. S.) 407. 165 ; 16 W. E. 524. (7) lb. (8) lb. PATENTS. 269 ordinary royalty by such users ; the Court held, that in every such Part i. instance, no further royalty was payable by the manufacturer. g^^] i 102. The Court, before it will grant an inspection of the defen- „ . rr^ dant's process by which an alleged infringement was to be made unless a case out, must be satisfied that the plaintiff has made out such a case made out, and that at the hearing of the cause he will obtain the relief prayed, ^^^ ™^ate- and that the inspection required by him of the defendant is material "'^'■ to such a case (1). 103. If, from the various transfers of a patent right, it is doubtful whether an action at law can be effectually brought, Equity will take jurisdiction (2). And where sufiScieut possession is made out. Where sufB- a doubt as to the validity of the patent will not necessarily prevent gion^ a doubt an injunction. The Court will look to the circumstances, and the dioe*s'notnece^- comparative inconvenience or loss to be occasioned by grantine; or warily prevent ^ . J b b injunction. withholding it (3). So, where a Court of Equity, having heard a Oourt of case on full proofs, is well satisfied of the originality of an inven- ^i!"!*? ."ill r ' o J not send case tion, the regularity of the patent, and the fact of infringement, it to a jury if . ' . , . satisfied of Will not send the case to a jury prior to granting a perpetual m- originality, junction. Especially if the questions in the case, though questions of fact, are such as the Court can decide upon the testimony of men of science as well as, or better than, a jury; and where a jury-trial would be long, costly, or troublesome (4). 104. Equity will not enjoin the equitable owner of a patent on • petition of the legal owner (5). 105. Before a patentee can have, an injunction, he must shew an exclusive enjoyment long enough to justify the presumption of a right, or an incontestable right (6). 106. "Where one of three parties runs a machine, and the other two own it, all may be enjoined (7). So the directors of a com- pany which manufactures articles that infringe a patent, who have the management of the business, and under whose direction the (1) Pigott V. Anglo-American Tele- Olum v. Brewer, lb. 506 ; Woodwmih graph Company, 19 L. T. (N. S.) 46. v. Stone, 3 Story, 749. ' (2) Bicknell v. Todd, 5 M'L. 236 (5) Olum v. Brewer, 2 Curt. 506 (Amr.) (Amr.) (3) Sargent v. Seagrave, 2 Curt. 553 (6) Thomas v. Weeks, 2 Paiue, 92 (Amr.) (Amr.) (4) Goodyear v. Day, 2 Wall. Jun. (7) Woodworth v. Edwards, 3 "W.& 283. See Washbume v. Oould, 3 Story, Min. 120 (Amr.) 122 ; Sargent v. Lamed, 2 Curt. 340 ; 270 PATENTS. Part I. articles are made and sold, and the company's agents, are responsible Sect. 1. for the infringement, and may be restrained by injunction (1). j^j^gj^ - 107. A license from the plaintiff, appearing by the answer, is plaintiff suiH- sufficient ground for dissolving an injunction against the infringe- soive injuno- ment of a patent (2). tion. Sect. 2. Copyright. There is a 1. There is copyright in a catalogue, unless it is a mere dry catalogue, ^ist of names, or dry list of books — catalogues per se — and it is no drvTsf ^^"^^ defence to say that the pirated work is not offered for sale itself, but merely used to promote the sale of the books mentioned in it (3), What is a fair And the Vice-Chancellor (Sir W. P. Wood) said that the only fair use of other in pi-i-i- works of same use you can make oi the work oi another oi this kmd is, where ™ ■ you take a number of such works, catalogues, dictionaries, di- gests, &c., and look over them all, and then compile an original work of your own founded on the information you have extracted from each and all of them ; but that it was of vital importance that such new work should have no mere copying, no merely colourable alterations, no blind repetition of obvious errors ; and The produo- that he found all these things here. Again, that it was of great original MSS. importance, as evidence of hona fides, that the original manuscript e'vMence of* should be produced, and that that decided him in favour of the bona fides. defendant in the French dictionary case (4), that he saw that he had bestowed great pains and labour on his subject; and though he had certainly copied a great deal from the plaintiff, he, the Vice-Chancellor, was convinced that the defendant there had honestly exercised his mind upou his work, and that here he thought there had been wholesale piracy. In this case a bookseller, H., had written and published a descriptive catalogue of books, and another bookseller, A., published a descriptive catalogue in which many of the descriptions were copied verbatim from H.'s catalogue; the Court held, that such copying was an infringement of his copyright, and that he was entitled to an injunction accordingly. (1) Goodyear v. Phelps, 3 Blatch. p. 481-489. 0. 0. 91 (Amr.) (3) ffotten v. Arthur, 1 H. & M. (2) Goodyear v. Bourn, 3 Blatch. 603; 32 L. J. (Ch.) 771. 266 (Amr.) ; Hilliard, Inj. 2na Ed., (4) Spiers v. Brown, 6 W. E. 352. COPYKIGHT. 271 2. If any person by pains and labour collects and reduces into paet i. the form of a systematic course of instruction those questions ^^(,^^^2. which he may find ordinary persons asking in reference to the - - — common phenomena of life, with answers to those questions, and of questions of explanations of those phenomena, whether such explanations and gons and answers are furnished by his own recollection of his former general ^^g^^^"^ f/^" reading, or out of works consulted by him for the express purpose, recollection, or the reduction of questions so collected, with such answers, under under heads,' certain heads and in a scientific form, is sufficient to constitute an scientific form original work, of which the copyright will be protected (1). But o°f^'^a^*^ork another person may originate another work in the same general of ■which the form, provided he does so from his own resources, and makes the be protected, work he so originates a work of his own, by his own labour and ^"* another industry bestowed upon it (2). And in determining whether an another work .. . iiiTini • ™ same gene- mjunction should be ordered the question, where the matter of ral form from the plaintiff's work is not originjil, is, how far an unfair or undue resources. use has been made of the work (3). If, instead of searching into the common sources and obtaining your subject matter from thence, you avail yourself of the labour of your predecessor, adopt his arrangement and questions, or adopt them with a colourable varia- tion, it is an illegitimate use of another man's work ; and falsely to Falsely to deny that you have copied or taken any idea or language from any copSd or™^ other work is a strong indication of animus furandi (4). In this ^^"^ ™y case the plaintiff had published a book called ' Why and Because,' g^age from treating of the scientific explanations of various common phenomena is strong indi- of life, and the defendant afterwards published a work on similar ^^uffufandt subjects, called ' The Keason Why,' of which the plaintiff com- plained that the name and the plan were suggested by his own work, and the arrangement and phraseology in many instances taken bodily from his work ; and Vice-Chancellor Sir W. P. Wood held, first, that there was no such similarity or colourable imi- tation in the title as to support the plaintiff's claim for an injunction against thai, and that the method of communicating information by question and answer being of unknown antiquity, the plaintiff could not claim any originality in the plan of his work ; and further, that many of the questions in the plaintiff's book being the simplest (1) Jarrold v. Eouhtm, 3 K. & J. 708 ; 3 Jur. (N. S.) 1051. (2) lb. (3) lb. (4) lb. 272 COPYRIGHT. Pabt I. forms in which the questions could be asked, were not the subject Sect. 2. * of copyright, and could not be the privilege of the plaintiff; yet that arrangement of questions and answers, however simple in themselves, and on subjects however common, might be the subject What is a fair of Copyright (1). And where two authors, A. and B., treat of the sequent com- Same Subject, each being merely a compiler from various other prior author's Original works, it is a fair use of A.'s work if B. examine it for the work of com- purpose of Seeing what works unprotected by copyright were re- ferred to by A., and B. may then himself refer to such unprotected work, and take from it whatever may be suggested by A.'s book ; and it is also a legitimate use of A.'s work if B., after having, by his own labour, brought his own work into shape, refer to A.'s work to It is piracy to supply omissions ; but it is a piratical use of A.'s work if B. take a prior work the matter therein borrowed from authorities open to all the world, authorfties "^ ™ Order to save his labour and expense of consulting the original open to aU, to work (2). But as it appeared to the satisfaction of the Court that save labour '■ and expense B., the defendant, had taken the phraseology and arrangement of originals. many questions and answers from the plaintiffs book, although the defendant swore that he had not done so, this rendered it im- possible for the Court to obtain from the defendant (as in Mawman Publication of v. Tegg (3) ), any information as to the quantum ; and the Court, containing therefore, having been satisfied that in certain chapters of the res^tratoed ^ defendant's work this improper use had been made of the plaintiffs *^°"hi '^fh^^ book, restrained the publication of such chapters only, but not of to obtain from the entire work ; the plaintiff to bring an action forthwith, and the quantum. defendant to keep an account iu the meantime (4). And, not- The Court will withstanding Bell v. Whitehead (5), if the Court is led to the con- not grudge . ^ ■" any labour to elusion that there has been piracy, it will not grudge any labour far injunction that may be requisite in order to ascertain how far the injunction eS. Should extend(6). The pro- 3. By the effect of sect. 18 of the 5 & 6 Vict. c. 45, " An Act to period'icaUs amend the Law of Copyright," the proprietor of a periodical is pre- precluded eluded from republishing without the consent of the author articles irom repub- . lishing artl- written by the latter for, and published in, such periodical, in any for that other form than as reprints of the entire numbers of the periodical elcep't"'as' ''^ which those articles appeared ; and a republication in supple- (1) Jarrold v. Eoulston, 3 K. & J. 708 ; 3 Jur, (N. S.) 1051. (2) lb. (3) 2 Russ. 385. (4) lb. (5) 3 Jur. 68. (6) lb. COPYEIGHT. 273 mental numbers of a selection of yarious tales previously published Part I. in a periodical is a separate publication within the section. So seot. 2. held in a case where an author had contributed tales which were, ^Z^i^tsof under the said Act and section, published in portions or parts in entire numbers. numbers of the ' London Journal,' and an injunction was granted by Vice-Chancellor Sir J. Stuart on his behalf, restraining the pro- prietors of that periodical from re-publishing the same tales in portions or parts of supplementary numbers of the ' London Journal,' not being reprints of that publication (1). 4. It is no infringement of copyright to represent a play drama- Eeprcscnting tised from a novel written by another author ; but it is an infringe- tis^rffrom™^" ment to print aiid publish a play so constructed, and, an account °"^.^V? ^°^ . ... . ^^ mfnnge- being waived, a perpetual injunction was granted against the ment of copy- printing and publishing of such plays, without any preliminary Rut publish- inquiry as to damages (2). This was a bill filed by the publishers coLtruotedia and owners of the copyright in two novels called ' Aurora Floyd ' ^° infringe- and ' Lady Audley's Secret,' written by Miss Braddon. The novels had been dramatised by Mr. Suter, and performed at the Queen's Theatre, and the defendant, Mr. Lacy, had published the two plays as they were performed ; the Vice-Chancellor said, that the question of the extent of appropriation which is necessary to establish an infringement of copyright is often one of extreme diffi- culty, but that in cases of this description the quality of the piracy is more important than the proportion which the borrowed passages might bear to the whole work ; but that here it was enough to say that the defendant admitted that one-fourth of the dramas was composed of matter taken from the novels. 5. If a plaintiff shews that his copyright has been infringed, the Court will grant an injunction without proof of actual damage (3). 6. Where A. published a play, and afterwards published a novel The pnblioa- founded upon it, into which he introduced many scenes and folded mY passages from the play, and B. afterwards published a play com- ^°7''}' "r'™" piled from A.'s novel, without (as was alleged) any knowledge of ''"'i passages ' A.'s play ; and B.'s play contained scenes and passages sub- novel, and a stantially identical with scenes and passages which were common upon which (1) Smiih V. Johnson, 33 L. J. (Ch.) (2) Tinsley v. Lacy, 1 H. & M. 747 ; 137; 9 Jur. (N. S.) 1223. 32 L. J. (Ch.) 535. (3) Smith V. Johnson, 83 L, J. (Oh.) 137 ; 9 Jur. (N. S.) 1223. T 274 COPYEIGHT. Part I. both to A.'s play and novel; Vice-Chancellor Sir W. P. Wood Sect. 2. held, upon a motion for an injunction to restrain the defendant ^j^"^^ j from publishing a drama called ' Never too Late to Mend,' that founded, is an even if B.'s play were a fair adaptation of the novel, and not an infiiugement . , .ii-- ■ £• • of the copy- infringement of the copyright therein, it was an ininngement ot pnor play!^ t'^^ Copyright in A.'s play (1). In this case the plaintiff was author of a drama called 'Gold,' which had been acted in 1853, and published by the defendant with the plaintiff's permission. The plaintiff had subsequently, in 1856, published a novel, called ' Never too Late to Mend,' founded upon his play of ' Gold,' and had ^introduced into it many passages of dialogue taken almost verbatim from the play. In 1861 the defendant published a drama called ' Never too Late to Mend,' compiled by Mr. Hazle- wood, and described as founded on the plaintiff's novel. This drama had the plot common to the plaintiff's play of ' Gold ' and the novel, and contained several of the passages of dialogue which were found both in ' Gold ' and in the novel. An alien 7. Where the copyright of a work of an alien had been sold to a publishing his J^ritish subject, who published it in this country in 1844, and the work whilst copyright was infringed in 1849, but the state of the law then residing in -^ •' ° . ° this country, rendered it very doubtful whether the copyright was protected, sessiourf the and the purchaser merely protested against the infringement, bat Cro™ is en- ™ 1851, within a reasonable time after the decision of a case in titled to copy- the Exchequer Chamber had established, as was then supposed, right. . ... 7 , the general question of copyright in an alien, he filed his biU, and moved to restrain the publication of the pirated work, the Court held that there had been no such delay as to disentitle him to an injunction (2). In tiis case an alien, resident abroad, composed three musical pieces in a foreign country, and sold the copyright in this country to the plaintiff, a British subject, who published the work in London. The work was on the same day published in Prussia. On motion in a suit instituted by the purchaser of the copyright against a person who had, without leave, published the three musical compositions in this country, the Court held that the publication was within the Copyright Act, 5 & 6 Vict. c. 45, and granted an injunction restraining the unauthorized publication (3). (1) neade v. Lacy, IJ. & H. 524. (2) Buxton V. James, 5 De G. & Sm. 80 ; 16 Jur. 15. (3) lb. COPYEIGHT. 275 And in Ollendorf v. Blaeh (1) it was held that an alien resident Pabt I. abroad might himself have copyright in a work written by himself, seot. 2. and published for the first time in this country, at all events if he was resident here at the time of publication. In this case an alien author had first published a literary work while resident in this country, and an edition of the same work was published in Frank- fort-on-the-Maine, and copies were imported into this country and sold by a London bookseller, and the alien filed a bill for an in- junction to restrain the sale, and on motion the same was granted, the plaintiff undertaking to bring an action if the defendants desired it. And in Chappell v. Purday (2) the Court said there, also, that it appeared to itself that a foreigner who was the author of a work unpublished in Prance might communicate his right to a British subject, at least for the period prescribed by the statute of Anne, that is to say, fourteen years. But in Jefferys v. Boosey (3) A foreigner the House of Lords held that an author resident abroad cannot, abroad can- by assigning a published work according to the law of his own ^ssiSIe a'^ country, give the assignee a title which will be recognised in this ti'l^. country. But in Low v. Boutledge (4), and Boutledge v. Low (.5), it was held that the word "author " is used in th& 5 & 6 Vict. c. 45, without limitation or restriction, and is therefore equally applicable to foreigners as to British subjects, and that under the 5 & 6 Vict. c. 45, the first publication of a book must, to secure British copyright to its author, be made in the United Kingdom, and British copy- right, when once it exists, extends, under s. 29, over every part of the British dominions. The protection of the statute is given to every author who first publishes in the United Kingdom, where- soever he may then be resident, or of whatever state he may be the subject {fer Lord Cairns (Chancellor) and Lord Westbury, dub. Lords Cranworth and Chelmsford) (6). And an alien friend first publishing an original work, of which he is the author, in England, is entitled to copyright in such work under the 5 & 6 Vict. c. 45, that is to say, to the exclusive right of multiplying copies through- out the British dominions, provided that at the time of such (1) 4De a & Sm. 209; 14 Jur. 114; 10 Jur.(N. S.)922; llJur.(N.S.) 1088 ; 20 L. J. (Oh.) 165. 939; 14 W. E. 90 ; 33 L. J. (Oh.) 717. (2) 4 Y. & 0. 485. (5) L. R. 3 H. L. ICO ; 37 L. J. (Cb.) (3) 4 H. L. C. 815. 454 ; 16 W. B. 1081 ; 18 L. T. (N. S.) (4) L. R. 1 Ch. 42 ; 35 L. J. (Ch.) 874. (6) lb. T 2 276 COPYRIGHT. Part I. publication he is residing, however temporarily, in any part of the Sbot. 2. British dominions ; and this is so although the temporary residence is in a British colony (as Canada) with an independent legislp,ture, under the laws of which he would not be entitled to copyright (1). An alien Ani an alien author of a serial tale, in course of publication in a author of a » . . , . , . , . ,. . „ . . , serial tale first foreign periodical magazine, by residing in Jiritish territory at the awt'hfs ^^^^ °^ publication in England of the last few chapters of the tale, copyright of -vphich were first published here, acquires all the rights of a British last chapters _ _ ' -^ '^ published in subject in respect of the copyright of such chapters (2). And an resfdinfr at the alien friend coming into one of the British colonies, and residing tenitory "*^^ there during and at the time of the publication in this country of a work composed by the alien, and first published in the United Kingdom, is entitled to copyright in this country in the work so published. An alien coming into a British colony becomes temporarily a subject of the Crown, and he thus acquires rights both within and beyond the colony, and the latter cannot be affected by the laws of the colony into which he comes ; and an alien friend is entitled to British copyright in a work composed by him and first published in England during the time of his residence in any part of the British dominions, and the word The word " author" in the 5 & 6 Vict. c. 45, includes alien authors (3). But 5 & 6 Vict. though now settled, the decisions on this point have been very c 45, includes conflicting, as in Delondre v. Shaw (i), where it was held that the alien authors. ° . . Court would not protect a foreigner's copyright, while in Bentley V. Foster (5) it was held that an alien ami was entitled to the pro- tection of the law as to works originally published in this country, although himself were residing out of it. And in D'Almaine v. Boosey (6), it was held that the English assignee of the copyright of a foreign musical composer was witliin the protection of the statutes relating to copyright, and it was there also said, semhle, that a foreigner who resides and publishes in England was within (1) RoutU'lge v. Low, L E. 3 H. L. (5) 10 Sim. 3119. 100; 37 L. J. (Ch.) 454 ; IG W. R. lOSl ; (G) 1 Y. & C. E.x. Eq. 288 ; 4 L. J. 18 L. T. (N. S.) 874. (N. S.) 21. And see other conflict- (2) ioiwv. TForrf, 37 L. J. (Ch.)841; ing c.ises, as ChappeU v. Purduy, U L. R. 6 Eq. 415 ; 16 W. K. 1114. M. & W. 303 ; Boosey v. Davidson, (3) Low V. Soutledge, Routkdge v. IS L. J. (N'. S.) (Q.B.) 174; Cocks v. Lov>, sU2n\i. Pardiiy, 5 C. B. 860; Boosey v. Pur- (-1) 2 Sim. 237. diy, 4 Ex. 14."). COPYRIGHT. 277 the like protection. But where a book is published in Where publi- Pj^rj, j . . , , cation is first Ohapteh II a foreign country, copies of which are bought and then in foreign gjjcr. 2. published in this country, persons who purchase a part in™isftliere of such work and publish it here, have no copjriglit ri^inThe therein (1). purchaser of the work. 8. The 19th section of the International Copyright Act, the 7 & 8 The luter- Vict. c. 12, (which enacts that no author of any book of dramatic copyright piece first publishing out of the dominions shall have any copy- y°V^ "ili right therein, or exclusive right to representation thereof, otherwise s. 19, applies than such (if any) as he may become entitled to under the Act) subjects pub- applies to British subjects first publishing in a country with which county with no international: convention exists. Therefore where a British ^'""'j.'^"'"- ternational subject first produced for representation a dramatic piece or enter- convention tainment, of which he was the author, at New Yolk, in America, j^^^ ^ Biitish and he subsequently produced it in London, Vice-Chancellor Sir su%ct first. ± .( J. J producing a W. P. Wood held that as he had not complied with the provisions drama at New of the 7 & 8 Vict, c, 12, and there being no international treaty or having com- arrangement (which was alluded to by 7 & 8 Vict. c. 12, s. 14), S'lnd'bein- he had not obtained the copyright to such piece in England (2). °° treaty, has 1 , . . -, rj n r b \ -" no copyright nor the exclusive right to the representation of his drama, though in England- he could not, by any possibility, have complied with the provisions Stiio*ugh he of the said Act, no regulation having been made according to the <=°^i'i ?«* l^ave , course pointed out in the Act as to international copyright between regulations the two countries (3). This was a bill filed by the author of a made Icctrd- dramatic piece (the 'Colleen Bawn') to restrain an infringement ^^^'°*^®'*''^*' of his right of representation by the defendant nho had repre- sented a piece as to which the Vice-Chancellor said that, upon the evidence, he had no doubt that the representations given by the defendants were a distinct piracy on the plaintiff's composition. 9. The International Copyright Acts, 7 & 8 Vict. c. 12, 15 & 16 The luter- Vict. c. 12, and the convention with France and Order in Council co*^^ ht made thereunder, do not exempt authors of works in France -*-?'^' '^ ^^ Vict c 12 claiming copyright in this country from the conditions affecting 15 & 16 Vict. . c. 12, and the Convention with France, and Order in Council, do net exempt authors in Prance from conditions affecting authors in England. (1) Guichard v. Mori, 9 L. J. (Ch.) M. 597. 227. (3) Bomicault v. Delafield, 9 Jur. (2) BoucicauU v. DelafieU, 1 H. & (N. S.) 1282 ; 33 L. J. (Ch.) 38. 278 COPYEIGHT. Part I. authors of works in this country (1). And where the Order in Sect. 2. Council of the 10th January, 1852, provided that French works A French uiust be registered at Stationers' Hall within three months after weekly news- the first publication thereof in France, "or if such work be published paper must be . i ». i i t • registered in parts, then withm three months after the publication of the last months after P*''^* thereof ;" Yice-Chancellor Sir W. P. Wood held that a French commence- newspaper published weekly, and not intended to be completed in commenced any definite number of parts, must be registered within three before 1852, i c i • /. • i i within three months alter the commencement, or it it had commenced before OrdeJ'in"'''' 1852, within three months after the date of the Order in CouncH; Council. and semble, the registration of a number of such a periodical in 1855, long after its commencement, did not extend to the succeeding numbers the protection of the International Copyright Apts (2). Neglect of 10. Neglect to register on the part of the officials at Stationers' register, pre- Hall prevents the author having the benefit of the statute as TatgWAt against the public (3). of statute. ii_ Where in registering the proprietorship of a copyright first pubiica° pursuant to, the 5 & 6 Vict. c. 45, either the date of the first pub- *^°"' ^[■'1°''^® lication, or the name of the publisher, is incorrectly entered ; a sub- is incorrectly sequent assignment by entry in the book of registry is invalid ; and registering where the assignees, by entry of a copyright of a work called of copyright)^ ' Haunted Hearts,' the proprietorship of which was thus incorrectly subsequent entered, filed a bill to restrain an iufrine:ement of the copyright, a assignment by ° lj a entry in regis- demurrer thereto was allowed by Vice-ChanceUor Sir E. T. Kin- dersley, on the ground that the assignees had no title (4). Plaintiff is 12. In a suit to restrain a piracy of a literary work, the plain- discovery^in a *^^ ^^ entitled to a discovery, notwithstanding the defendant suit to re- offers to submit to an injunction, and to pay the costs, and a stiam piracy _ u ' x j of a literary motion by the defendant to stay proceedings after interrogatories standing sub- had been filed, and before the del'endants had answered, was mission to vpfncpfl fn\ injunction. leiUSea {0). No injunction 13. In Eowitt v. Hall (6), where an author had contracted with a uSd*sTock ^ printer and publisher for the " copyright and sole right of sale for of copies; but four years, from 15th March, 1854," of a book, written by the a question (1) Oassdl V. Stiff, 2 K. & J. 279. 922 ; 33 L. J. (Cb.) 717. (2) lb. (5) Stevens x. BrM, 10 L. T. (N. S.) (3) lb. 231. (4) Low V. Eouihdge, 10 Jur. (N.S.) ((J) 10 W. R. 3S1. COPYEIGHT. 279 author, and the publisher had printed three editions of the work Paet I. previously to the expiration of the four years in March, 1858, but sec™. had printed none since ; Vice-Chancellor Sir W. P. Wood held, ^ r ' ' may anse as that an injunction would not lie to restrain the publisher from to the proper selling an unsold stock of copies of the work. The Vice-Chancellor copies of an said, that the purchase of the copyright carried with it the right of ^ ^°°' printing and publishing, and that the defendant was entitled to continue selling after the expiration of the four years' term, the stock printed by him under his purchase. That the Copyright Acts were directed against unlawful printing (8 Anne, c. 19, and 5 & 6 Vict. c. 45. s. 15) ; and that when, as in this case, the defendant had acquired the right of lawfully printing the work, he was at liberty to sell, at any time, what he had so printed. That it had been suggested that the effect might be to destroy the copyright in the author altogether, as the publisher who had purchased the copy- right for a limited period only, might during that period print off copies enough to last for all time, and the Vice-Chancellor said that a nice question might indeed arise as to the number of copies of which an edition might consist. 14. The Court will hesitate to commit a defendant alleged to have committed a breach of an interim injunction, when it sees that he has endeavoured to set himself right in respect to the original charge against him of infringing the plaintiff's copyright (1). 15. If a frima facie title to the copyright in a book be rebutted, Copyright can the right may be supported without the production of a formal arece^rii*^^ assignment attested by two witnesses ; and Lord Wensleydale '"•tii^g- and said that he thought that the opinion of the six judges in the case assignment is of Jefferys v. Boosey ('2) was correct, that since the statute of the sembilT^' 54 Geo. 3, c, 156, there was no occasion to have an assignment in writing of a copyright executed in the presence of two witnesses, and that he thought that the receipt in writing produced in this case (i.e. a receipt for the purchase-money by the author to the purchaser upon the sale of the work) would operate as an effectual assignment (3) ; and by the 13th section of the 5 & 6 Vict. c. 45, a registered proprietor may assign his interest, or any portion thereof, by making an entry in the book of registry of such assignment, &c. (1) Cc/rnish v. Upton, 4 L. T. (N. S.) 862. (2) 4 H. L. C. 815. (3) Kyle v. Jeffreys, 3 Macq. H. L. Cas. 611; v. 5 & 6 Viot. c. 45, s. 15. 280 COPYRIGHT. Paet I. 16. The name of the editor appearing upon the title-page Sect. 2, forms no part of the title ; and the Master of the KoUs refused to The^name of ^'^^train by injunction the proprietors of a journal from omitting the editor of a the publication of the editor's name on the title-page, although the journal on the . it ■ i i i i title-page is agreement between the proprietors and editor provided that the title Mpai o e ^£ ^-^^ journal should not be altered without mutual consent (1). Court refused 1'^- Without determining the extent to which the owners of the here (remu- copyright in a journal are justified in interfering with the editor in editor depend- his editorial Capacity, where the remuneration of the editor depends of journal) to upon the success of the journal, the Court refused to restrain the ' Hetora aUer- proprietors from altering articles proposed to be inserted by the ing ai tides, or editor, or inserting others contrary to his wish, it being the province others, a jury of a jury to determine the amount of damage, if any, which the mine the editor Sustained by reason of the conduct of the proprietors (2). damage (if any) in such a case. A fraudulent 18. A fraudulent intention in infringing copyright is not neces- iufSiging™ sary to entitle the proprietor of the copyright to relief, if his right copyright not q£ property has been invaded ; and where the registered proprietors necessary to '^ -"^ •' . entitle to of BeU's Life in London and Sporting Chronicle, published weekly, at the price of 5d., filed a bill against the proprietors and publishers of a new newspaper called the Penny BelTs Life and Sporting News, which was published at the price of Id., and the evidence produced shewed, that from the similarity of the two names mis- takes had occurred, and were likely to occur, on the part of the public, and that inquiries had been made at the of3fice of BdVs Life in London for the Penny Bell's Life ; on a motion on behaK of the plaintiffs, Vice-Chancellor Sir J. Stuart granted an injunction to restrain the defendants from the use of the words BelVs Lifein the title of their newspaper (3). A publisher 19. Where an author has sold the copyright of a work published acmenanTnot Under his own name, and covenanted with the purchaser not to to pubhsli publish any other work to prejudice its sale, another publisher who Atestrained has notice of this covenant will be restrained from publishing a And semhle, work Subsequently purchased by him from the same author, and covenantor published under his name, on the same subject, but under a dif- rcstrained. (1) Crookes v. Fetter, 6 Jur. (N. S.) (3) Clement v. Maddich, 1 Giff. 98 ; 1131. 5 Jur. (N. S.) 592. (2) lb. COPYRIGHT. 281 ferent title, and though there be no piracy of the first work (1) ; and Paet I. senible, if a covenantor and his partner publish a rival work on the sect. 2. same subject, the partner will be restrained as well as the cove- g^t semile nantor. But if a covenantor, havinff entered into such a covenant purchaser of . . rival work with B., sell the materials of a rival work to C, who concludes his without notice agreement and pays his money without any notice of the covenant, not bound. ' senible an injunction on the ground of that covenant cannot be maintained against C. (2). 20. Where in 1857, the defendant, being proprietor of a weekly publication, the ' London Journal,' the price of which was Id!., assigned his copyright and interest therein to the Plaintiif for value, and entered into a covenant with him not to publish either alone or in partnership with any other person any weekly periodi- cal of a nature similar to the ' London Journal ;' and in 1859 the defendant issued an advertisement announcing the publication by him of a daily newspaper to be called the Daily London Journal, to be sold at Id., and the plaintiff thereupon filed a bill against the defendant for an injunction to restrain him from publishing the Daily London Journal ; Vice-Chancellor Sir W. P. Wood made an order for an injunction, which, upon appeal, was affirmed by Knight Bruce, L.J. (dissentiente Turner, L.J.), upon the plaintiff undertaking to abide by any order the Court might make as to damages, and to bring an action against the defendant within one week (3). 21. The registered owner of a copyright in a work is, under the Eegiatered 23rd section of the 5 & 6 Vict. c. 45, entitled to have all the unsold "j^ufen-''^" copies of a piratical edition delivered up to him for his own use, ^^'^^^^ *° "°" . . . „ sold copies of Without making any compensation for the cost of production or pirated publication. But as to the copies of such piratical edition which to the°pr*oflts may have been sold, he is not entitled in Equity to the gross pro- °^ ^opi^s sold. duce of the sale thereof, but only to the profits which the party may have made by the sale thereof ; but to recover the pirated copies he must proceed at Law (4). 22. Where the plaintiffs, music publishers, having adapted (1) BarfieU v. Nicholson, 2 S. & S. (3) Ingram v. Stiff, 5 Jur. (N. S.) 1 ; 2 L. J. (Ch.) 90; S. 0. sub. mm. 947 ; 33 L. T. (N. S.) 195. BarfieU v. Kelly, 4 Euss. 356. (4) Del/ v. Delamotte, 3 K & J. (2) lb. 581 ; 3 Jur. (N. S.) 933. 282 COPYEIGHT. Pabt I. original words to an old American air known there as ' Lilly Dale,' ChaptebII. , . , 1 « ,, . 1 . Sect. 2. wnicn was re-arranged tor them with a new accompaniment and symphony, and gave to the song so composed the name of 'Minnie,' and having procured it to be sung by Madame Anna Thillon, a popular singer, at M. Jullien's concerts in London, and when it had by that means become a favourite song, published it with a title-page containing an original portrait of the singer who had brought the song into notice, and the words, " Minnie, sung by Madame Anna Thillon and Miss Dolby at Jullien's concerts, written by George Linley ;'' Vice-Chancellor Sir W. P. Wood held, that the publishers had by these means obtained a right of pro- perty in that name and description of their song which a Court of Equity would restrain any person from infringing. And another music publisher having subsequently published the same melody with different words, but a new accompaniment and symphony, and entirely new arrangement of the music, and upon the title-page having placed a similar but reduced portrait of Madame Anna Thillon, copied from the likeness on the plaintiff's edition, with the words, "Minnie Dale, sung at Jullien's concerts (and always encored) by Madame Anna Thillon, the music composed by H. S. Thompson," &c., this song having never in truth been sung by Madame Anna Thillon at Jullien's concei-ts ; the Vice-Chancellor held, that this was a piracy resembling the use of another's trade mark, and a palpable attempt to induce the public to believe that the song so published was the same as that of the first pubhshers, and at their suit an injunction was granted on interlocutory appli- cation to restrain this or any other similar infringement of their right to the name and description of their song (1) ; and seirible, that such a suit should be instituted without delay after discovering the infringement (2) ; and the Vice-Chancellor also held that the statement in the title-page, " written by L.," when the music was not, although the words were, composed by L., was not such a mis- representation as to disentitle the plaintiffs to protection (3). And in Chappel v. Davidson (4), being another suit to restrain the pub- lication and sale of another imitation of the same song, the same Vice-Chancellor held that the entry at Stationers' Hall of the music (1) Chappell V. Sheard, 2 K. & J. 117; 1 Jur. (N. S.) 996. (2) lb. (3) lb. (4) 2 K. & J. 123. COPYRIGHT. 283 as well as the words of the song, although the plaintiffs might have Paet I. Oh AFTER 11 entered only those parts of the publication to which they had an seot. 2. exclusive right, did not deprive the plaintiffs of their right to the injunction ; nor could the defendant escape his liability by cautioning his shopmen to explain to purchasers that his song was not the same as the plaintiffs', because he could not secure that retail dealers purchasing from him would give the same information to their customers (1) ; and the Court, having granted an interim injunction, and the defendant, instead of submitting, having insisted on his right to continue the publication of his song, held, that the defendant must pay the costs of a motion against him to contiaue the injunction, although it appeared that no application had been made to him by the plaintiffs previously to the filing of the bill ; but another part of the case being that the defendant had priated two bars of music which had been added by the plaintiffs to the original air, the Court refused to extend the injunction to restrain such piracy until the fact had been established by a trial at Law. The afSdavit of one of the plaintiffs, shewing that the imitation had recently come to his knowledge, was worded in such a manner as not to be free from ambiguity, but the de- fendants had not, on their side, proved express notice to the plaintiffs of their publication ; the Vice-Chancellor held, that the onus being on the defendants to shew laches, the motion might stand over for the plaintiffs to put in additional afSdavits (2). 23. There are four indicia in the title of a song the imitation of The four which by another party may be restrained by injunction, viz., the titie'of a°on^ name of the song, the name of the singer, of the composer, and of *^^ citation the publisher (3). be restrained. 24. There cannot be copyright claimed for part of a book and There cannot disclaimed for another part, as in a patent ; and the Court, in this cla^ed"or^* case, held that the plaintiffs were entitled to protection, although ^'^'^^ ^ ^""'^ they had simply registered their song without mentioning that claimed for they claimed no copyright in tbe tune (4). ^^° ^^ ^^^ ' 2.5. When the Court is satisfied that a piratical imitation has when Court been made by the defendant, the plaintiff will not be put to the tic^Sa'tfon terms of bringing an action to try his title at Law, although the paiie> plaintiff (1) GhappeU v. Davidsm, 2 K. & J. 123. (2) lb (3) lb. (4) lb. 284 COPYEIGHT. Part I. defendant cannot take any steps to brin? the fact to an issue before Ohateb ii. ,, . ,,. Sect. 2. the jury (1). upon terms of ^^- Where a plaintiff, claiming a copyright in a work of a bringing an foreigner, obtained an injimction on giving an undertaking to his title. abide by any order the Court might make respecting damages, and the law was, pending the suit, finally settled against the existence of such a copyright, the Lords Justices held that the defendant was entitled to have the damages sustained by him ascertained as correctly as practicable and paid, and that a mere dis- missal of a bill with costs was not a sufQciently accurate assessment and award of damages (2). The agree- 27. Where by memorandum of agreement executed by the author publication of of a legal treatise and certain publishers it was stipulated that the ofTpersona? author should prepare the work for publication, correct the proof nature, and sheets, and superintend the publication thereof, and that the pub- not assignable . . _ _ '^ by either lishers should direct the mode of printing the work and pay all the sent of other charges thereof, and of publishing the same, and take all the risk party. ^£ publication on themselves, and that the produce of the sale of the work, after deducting the expenses, should be divided equally between the author and publishers ; that the accounts of the copies sold should be taken annually, and upon the principle therein men- tioned ; and that the author should make all necessary alterations and additions for a second or any subsequent edition of the work that might be required ; and that the publishers should print and publish every such subsequent edition on the before-mentioned conditions ; and, lastly, that the publishers should be at full liberty to dispose of the copies of any edition of the work that should not be sold off within five years after publication, either by public auction or private sale, or in such manner as they might deem most advisable, so that the account might be finally settled ; and after a second edition of the work had been printed and published, pursuant to the terms of the agreement, all the interest of the publishers under the agreement, including 400 unsold copies of the second edition, became vested, with the author's concurrence, in the plaintiffs ; and a third edition having been subsequently prepared by the author for the defendant, W. Gr. B., and by him published ; (1) Chappell V. Davidson, 2 K. & J. 123. (2) Novdlo V. James, 5 De Gr. M. & G. 876. COPYRIGHT. 285 the Coiirt, affirming the decision of Vice-Chancellor Sir W. P. Pabt I. f^HAPTEli TT Wood, refused with costs a motion by the plaintiffs to restrain seot. 2. such publication, the agreement being held to be of a personal nature on both sides, and the benefit of it not assignable by either party without the other's consent (1). 28. Where the first edition of a work of compilation was pub- As to the new lished before the 5 & 6 Yict. c. 4.5, and several editions of it were tions ofworks published after this Act, and not registered, Vice-Chancellor °^^j™^^^^'^'"^ Sir E. T. Kindersley held, that as to so much of the matter since 5 & 6 Vict. c. 45 contained in the original edition as was contained in the sub- are books ' sequent ones, the owner might sue, although those subsequent ^e regiSered editions were not registered ; but as to the new matter the sub- 1^"' tl^e old ° _ _ _ matter may be sequent editions were books which ought to be registered under sued upon, that Act, s. 24, and the owner could not sue for infringement on subsequent that point (2). _ _ ^^rrg^st^red.. 29. If a foreigner were to translate an English work, and then a retransiar an Englishman to re-translate that foreign work into English, that translat^ed"'^ would be an infringement of the original copyright, even if the ™*° ^ foreign re-translator did not know that the foreign translation was taken an infringe- from the English work (3). original mpyright. 30. Where the plaintiff was the publisher of a book containing Copyright designs of groups, taken from the Exhibition of 1851; of stuffed designs— part animals, and had annexed to each plate names descriptive of the °^?j''°°?T?^ designs, those designs being illustrations of the letterpress, and the letterpress, defendants subsequently published a similar work, with stories the plates do containing the same dramatis jpersonse, but the stories were dif- w'i'th 's'g™ 2 ferent ; and it appeared upon an inspection, and from the evidence, "■ ^^' "• ■'■ that the defendants had copied their designs, as well as the names affixed to them, from the designs and names of the plaintiff; and the plaintiff's work had been registered pursuant to 5 & 6 Vict. c. 45, but the plates contained therein had not " the day of first publishing thereof, with the name of the proprietor, engraved thereon," in conformity with the provisions of 8 Geo. 2, c. 13, s. 1 ; and the question was, whether these plates, which if printed separately would not have been protected by reason of the pro- visions of the latter statute not having been complied with, were (1) Stevens v. Benning, 6 De G. M. (2) Murray v. Bogue, 1 Drew. 353. & G. 223 ; ] Jur. (N. S.) 74. (3) lb. 286 COPYRIGHT. Part I. not protected as forming part of a work protected under 5 & 6 Viet. Sect. 2. c. 45 ; the Court held, that as the prints or designs formed part of a book, although such book contained letterpress also, yet, the prints or designs being an illustration of the letterpress, the statute 5 & 6 Vict. c. 45 vested in the registered proprietor of such book a right to restrain any imitation or infringement of his copyright ; when there are designs which form part of a book in which copy- right exists, such copyright extends to the designs as well as to the letterpress (1). Actual pay- 31. Under the Act to amend the law of copyright, 5 & 6 Vict, article for a c. 45, actual payment for an article written for a periodical work a Tondfition^ is a condition precedent to the vesting of the copyright in the precedent to article in the proprietor of the work ; a contract for payment is not vesting copy- . right. sufBcient (2). Several can 32. Where the bill stated that one of the plaintiffs had corn- interest and posed a book, and that all the plaintiffs had caused the book to be copyright in a printed and published for their joint benefit, and that the book book by one -^ '^ •> ' of them. had been registered by the plaintiffs, as proprietors of the copyright thereof, and that the copyright had ever since remained in the plaintiffs, for their joint benefit ; and that the defendants had pub- lished a book in which numerous passages were copied from the plaintiffs' book ; the Court held, upon a motion for the injunction, that under the Copyright Act, 5 & 6 Vict. c. 45, the plaintife had a joint right to sue ; and upon comparison of the two books, that in the defendant's book there had been such copying from the plaintiffs' book as entitled them to an injunction (3). 33. In Osborne v. Donaldson (4) the Court dissolved an injunc- tion obtained by the assignee of an author, after the expiration of the two terms of years allowed by the statute of Anne ; the common law right of the author being so extremely doubtful. 34. In cases of contested copyright, the Court is disposed rather to restrict than increase the number of cases in which it interferes by injunction before the establishment of the legal title, and it will give great weight to the consideration of the questions, which (1) Bogue v. Eoulston, 5 De G. & (3) Stevens v. Wildy, 19 L. J. (N. S.) Sm. 267. (Ch.) 190. (2) Richardson v. Oilbert, 1 Sim. (4) 2 Eden, 327. (N. S.) 336. COPYRIGHT. 287 side is more likely to suffer by an erroneous or hasty judgment, Paet I. and the prejudicial effect the injunction may have on the trial of Seot. 2. the action (1). 35. The defendant was a vendor of a literary work published in weekly numbers, in one of the numbers of which was contained the commencement of a work of fiction, which, with the exception of a few colourable alterations, was in all respects similar to a prior work of which the plaintiff was the author and publisher ; on a bill by the plaintiff, praying that the defendant might be restrained from publishing, selling, or otherwise disposing of the number containing the commencement of such work of fiction, or any continuation or other part thereof, and from copying or imi- tating, in the whole or in part, the plaintiff's book ; the Court granted an injunction as prayed, except as to the words " or imita- ting," but directed the plaintiff to bring an action within ten days against the defendant for the invasion of his alleged copyright (2). 36. The Court has jurisdiction to direct admissions in an action brought by the direction of the Court (3). ~ 37. In a suit to restrain the piracy of a literary work, a plaintiff who, in opposition to the defendant's denial of his title, obtained an injunction, is entitled to an answer from the defendant for the purpose of having his title admitted (in case, by arrangement between the parties, the title is not established at Law), and also for the purpose of having an account from the defendant of the profits made by the sale of the spurious work. The plaintiff there- fore, under such circumstances, is entitled to the costs of the suit, including the answer ; and if, by the refusal of the defendant to pay those costs, the plaintiff is compelled to bring his cause to a hearing, he will be entitled to the whole costs of the suit as between party and party, although, at the hearing, he may waive the account ; and the plaintiff's equity in this respect will not be affected by his having offered to waive his right to an answer with a view to obtain terms more beneficial to himself than the Court would, under any circumstances, accord to him, as, for instance, with a view to receive costs as between solicitor and client (4). (1) M'NeillY.Williams,llSm.^i. (4) Kelly y Hooper,! T. & C. Ch. (2) Dickens v. Lee, 8 Jur. 183. 197. (3) lb. 288 COPYRIGHT. PabtI. 38. The Court granted and continued an injunction against Sect. 2. the defendant restraining the sale of a sheet almanac containing Sale of a sheet ™^tter pirated from a distinct part of a directory published by the almanac plaintiff affording information with respect to the post-office, com- directory, piled from public documents, the matter pirated forming an ex- ceedingly small portion of the plaintiff's work, but bearing a great proportion to the other matter in the defendant's work (1). 39. Where it had been agreed between the author (Sir Edward Sugden) and the publisher (Mr. Sweet) of a new edition of a work (the ' Treatise on Vendors and Purchasers ') that a certain number (2500) of copies should be printed, corresponding in type and page with another work of the author, at the sole cost of the publisher, the author be paid a certain sum by instalments, the first to be paid as soon as the edition was ready, and the price of the work be a certain sum ; the Court held, that the publisher was to be deemed not merely a purchaser of such number of copies, but was in Equity an assignee of the copyright of it to the extent that he was tq be the sole publisher of the work until that edition con- sisting of the said number was sold, and that consequently a bill by him to restrain a piracy of the work was not demurrable ; and that to sustain the title to relief the plaintiff might rely on alleged pirated passages, although contained in a previous edition of the work, as well as in the new edition ; and the Court granted an injunction on the plaintiff undertaking to try his right at Law ; and the author declining to permit his name to be used in the action, the defendant was ordered to admit that the plaintiff was the legal proprietor of the edition of the work (2). 40. Where, in 1830, A,, a foreigner resident in Paris, made a legal assignment of his copyright in an opera (' Era Diavolo ') to L., resident in England, and L. in the same year sold his interest to C, without executing any written memorandum, and C. died in 1834, and in 1836 O.'s executor obtained a legal assignment, and in the meantime copii^s of the full score had been imported into England, and sold in London by several tradesmen, and in 1841 P. published and sold the overture of tlie opera in London ; the Court jiold, that C.'s executrix could not maintain an injunction (1) Ki-lly V. Hooper, 4 Jur. 2. (2) Sweet V. Cuter, U Sim. 572; 5 Juv. G8, COPYEIGHT. 289 against P. for piracy, on the ground that the question being whether Pabt I. a party who, before the copyright had been actually parted with gE^ 2. to him (because at the time there was no conveyance), had per- ' mitted the books to be imported here and sold without inter- ference, was afterwards to be at liberty to come forward and say that no party should do the like again, and that it was an im- portant question, and the Court thought it sufficiently doubtful to prevent any interference by injunction until it was decided (1). 41. A Court of Equity, where justice requires it, will grant an Party with injunction to restrain a piracy on the application of a person having only, can only an equitable title (2). And in Eodges v. Welsh (3) it was ^"^^^f^ held that this Court will interfere by injunction to protect the copyright of the assignee of the author (in this case a reporter of legal decisions), though it appears that at the time of the alleged piracy there was not an assignment in writing, and the assignee had merely an equitable title, and that some of the cases were ex relatione; and it will disregard a permission from the author to infringe the copyright given after he had parted with his equitable title for valuable consideration, and it had appeared upon the title-page of his work that it was printed for the equitable assignee of the copyright. And the Court will interfere to protect copy- right from piracy at the suit of plaintiffs who appear to have a good equitable title, even though it should not be quite clear that their legal title is complete (4). In Morris v. Kelly (5) the Court granted an injunction to restrain the performance of a comedy, the copyright of which had been sold by the author, and had been afterwards assigned by writing to the plaintiffs, although it did not appear whether the original assignment was in writing. 42. Where the defendants had published a work containing an original essay (less than a tenth part of the work) on modem English poetry, biographical sketches of forty-three modern poets, and the rest consisted of extracts and selections from their poems, amongst which were six short poems and parts of longer poems The publica- without any notes or criticisms being mixed up with them, and the po^ms^ an°d' (1) Chappdl V. Purday, 4 Y. & 0. (3) 2 Ir. Eq. Eep. 266. 485- (see this case as to the right of a (4) Mawrnan v. Tegg, 2 Euss. 385. foreigner in copyright, pi. 7, ante). (5) 1 Jac. & W. 481. (2) lb. U 290 COPYRIGHT. Pakt I. selections constituted altogether the bulk of the defendants' work, Sect. 2. tut were alleged to have been introduced into it for the purpose extracts of °^ illustrating the essay ; the Court held, that this was a violation poems, alleged of the copyright of one of the poets whose vrorks had been so used, to illustrate an , . , , ,,.-%., x x. xi i • •, essay, re- and restrained the publication ot such parts or the work as consisted of the plaintiff's composition, as being an infringement of the plain- tiff's copyright, without proof of damage (1), Not necessary 43. Where a party seeks to restrain an infringement of his biU^&c!,^lie copyright it is not necessary for him to specify, either in his bill parts of work qj. a,fg(javit, the parts of his work which he considers to have been be pirated. pirated, although he does not claim copyright in all the passages which are the same in both works ; a general allegation that the defendant's work contains pirated passages, and a verification by affidavit of those passages, are sufficient (2). The possession ■ 44. In Lewis V. Chapman (3) the Court refused an inju action to than a year ^^ restrain the piracy of a publication to which the plaintiffs would bm"held°^ have been otherwise entitled, on the ground of delay in making laches. the application (the defendants' work was completed in six years and a half before the bill was filed, and for more than a year before the bill was filed a complete copy of the defendants' work was in the possession of the plaintiffs), and the Court said that it was its duty, in the circumstances of this case, to impute to the plaintiffs such a knowledge of the contents of the defendants' work as made it their duty to apply for an injunction, if at all, at a much earKer period (4). Minuteness of 45. The question of minuteness in value of the original matter traded for extracted from a work for purposes of criticism will have great "eat^TOi'hf ^'sig'^t with the Court in influencing its decision on the application with reference for an iniunction (5). to the right to . „■ /-. • i an injunction. 45. The Court IS adverse to the practice of its time being occu- pied by applications for injunctions to restrain infringements of copyright, in which it is difficult, if not impossible, to take an account of the loss complained of (6). Ifacqui- 47. If the owner of a copyright has, for some time past, ac- escence in dif- (1) Campbell v. ScoU, 11 Sim. 31 ; (3) 3 Beav. 133. 11 L. J. (N. S.) Ch. 166 ; 6 Jur. 186. (4) lb. (2) Sweet v. Maugham, 11 Sim. 51 ; (5) Bell v. Whitehead, 8 L. J. (N. S.) 9 L. J. (N. S.) Ch. 323 ; 4 Jur. 456, Ch. 141 ; 3 Jur. 68. 479 ; Hotten v. Arthur, 1 H. & M. 603. (6) lb. COPYEIGHT. 291 quiesced in different individuals transcribing cases from his works, Part I. the Court will not interpose in his favour by injunction against sect. 2. other parties who have subsequently transcribed the cases from the feientindi '- same work, until the owner of the copyright has established his ^ I .( □ 7 " ^jj.g Qj ^ copy- piracy (6). rigbt opera, is 63. In CoTburn v. Simms (7) it was held that the proprietor of ^^^^''^" a book. whose copyright had been invaded by the printing of a similar work, and who was entitled to an injunction to restrain the printing and sale of the unlawful work, was not, under the 54 Geo. 3, c. 156, s. 4, entitled to an order for the delivery up of (1) Barfleld v. Nicholson, 2 S. & S. 711 ; 7 L. J. (N. S.) Ch. 227; 2 Jur 1 ; 2 L. J. (Oh.) 90. 491, 536. (2) Gary v. Faden, 5 Ves. 24. (6) D'Almaine v. Boosey, 1 Y. & C. (3) Tonsm v. Walker, 3 Swan. 672. 288 ; 4 L. J. (N. S.) Bq. 21. (4) Carnan v. Bowles, 1 Cox, 285. (7) 2 Hare, 543; 12 L. J. (iSf. S.) ;_ (5) Saunders v. Smith, 3 My. & Or. Oh. 388 ; 7 Jur. 1104. 294 COPYEIGHT. Part I. the illegal copies, if the book the copyright of which had been ChapteeII. . „. ° ^ , , ,1. Sect. 2. mirmged was not composed and entered according to the statutes ^^ at the time the illegal copies were printed ; and, semble, there is no common law right in the author or proprietor of a book which is pirated to the delivery up of the copies of the illegal work ; and therefore, if such relief is given in Equity, it must be under the provisions of the statute for the protection of literary property ; and, qumre, whether the copies of the illegal work would in any case be ordered to be delivered up in a suit to which the person at whose expense and on whose account they had been printed was not a party, the Vice-Chancellor Sir J. Wigram said that that would be an anomaly. The 23rd section of 5 & 6 Vict. c. 45, which gives the registered proprietor of copyright in literary matter the right to have all the unsold copies of a pirated book delivered up, does not give him any right in this Court to more than the usual account of the net profits of all copies of the book. He has no right in this Court to an account of the gross proceeds, and to recover the pirated copies he must proceed at Law (1). But under the above section it is enacted that the unsold copies may be sued for and recovered by the registered proprietor of the copyright, or damages for the detention (2). In a case within the Copyright of Designs Act, 5 & 6 Vict. c. 100, Lord Justice Knight Bruce made an order for the delivery up to the plaintiff, for the purpose of being destroyed, of the drawings and cards used by the defendant in applying the plaintiff's design, and also the articles manufactured by the defendants to which the plaintiff's design had been applied (3). 64. In Colburn v. Simms (4) Vice-Chancellor Sir J. Wigram states the principles upon which the Court gives an account of the profits of the unlawful work in the case of piracy ; he says there, that it is true the Court does not by an account accurately measure the damage sustained by the proprietor of an expensive work from the invasion of his copyright by the publication of a cheaper book ; that it is impossible to know how many copies of the dearer book are excluded from sale by the interposition of the (1) Ddfe V. Delamotte, 3 K. & J. 581. (3) MacEae v. Holdsworth, 2 De G. (■^) lb. ; 5 & 6 Vict. c. 45, s. 23. & Sm. 497. (4) 2 Have, 543 ; 12 L. J. (Ch.) 388 ; 7 Jur. 1104. COPYEIGHT. 295 cheaper one ; that the Court, by the account, as the nearest approxi- Paet I. mation which it can make to justice, takes from the wrongdoer all sect. 2. the profits he has made by his piracy and gives them to the party who has been wronged ; that in doing this the Court may often give the injured party more, in fact, than he is entitled to, for non constat that a single additional copy of the more expensive book would have been sold if the injury by the sale of the cheaper book had not been committed ; but that the Court of Equity, however, did not give anything beyond the account. 65. Penalties and forfeitures must, as a general rule, be waived by a party seeking equitable relief, and this applies to the Copyright Acts (1). 66. The person who forms the plan of the work to be composed The person by the labours of various persons, who employs different writers of"and°em^° to contribute to it, and who pays them for their contributions, is Pi°y™s diffe- ^ ■' _ _ ' rent persons the author and proprietor of such a work within the statute of to contribute . to, a work, is Anne {/i). author and proprietor thereof. 67. An injunction granted against a work which is published in An injunction successive numbers, on the ground of piracy in the published numbers"^^ numbers, will not be modified so as to permit the publication of "■^'^^^'^7 P"''- 1 c 1 -1 1 . \ . lished of a the future numbers while the question of piracy as to the others work will not remains undetermined (3). admit publication of futur? numbers" 68. There is no copyright in specifications of patents (4). i^„ copyri.'ht in specifications of patents. 69. Copyright exists in an individual work, but not in a general No copyright subject, though, from its nature, the consequence may be close su^-e^bu^t resemblance and considerable interference, as in the case of maps ^^^ ^"'^ ™"^' ^ not be copied. and road-books (5) ; but there is no doubt that though a man may publisli a book of roads, that may be the same as another man's (having a copyright), yet he cannot take that book and copy it (6). 70. It was held by Lord Chancellor Eldon, in Bundell v. Mur- ray (7), that an author who had given a work to a publisher, who, by the sale of it had reimbursed himself his expenses and made con- (1) GoTburn v. Simms, 2 Hare, 554 ; (3) lb. Mason v. Murray, cited 3 Bro. 0. C. 40. (4) Wyatt v. Barnard, 3 V. & B. 77. (2) BarfieU v. Nicholson, 2 S. & S. (5) Wilkins v. Aikin, 17 Ves. 422. 1 ; 2 L. J. (Ch.) 90. (6) lb. (7) Jac. 311. 29(5 COPYEIGHT. Pabt I. siderable profit, could not, at the end of the first fourteen years (1), Sect. 2. restrain the publisher by injunction from continuing the pubU- cation ; the Lord Chancellor observing that he found that this lady (the authoress), abjuring all right in herself, and saying nothing about the term of fourteen years, gave it to the publisher, and that he published it at the hazard of aU questions attending it, and under the assurance that she was to receive no part of the profit. A Court of Equity frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things that occasions the application ; and, therefore, without saying with whom the right was, whether it was in the lady, or whether it was concurrently in both the authoress and publisher, the Lord Chancellor thought it was a case in which strict law only ought to govern (2). 71. In Gyles v. Wilcox (3) Lord Chancellor Hardwicke observed that as to what had been said by the Attorney-General of the Act {i.e., the then Copyright Act, 8 Anne, c. 19), being a monopoly, and therefore ought to receive strict construction, he was quite of a different opinion, and that it ought to receive a liberal con- struction; for that it was very far from being a monopoly, as it was intended to secure the property of books in the authors them- selves, or the purchasers of the copy, as some recompense for their pains and labour in such works as might be of use to the learned world. Books colour- 72. Books colourably shortened only were held to .be within the iibly shortened . oio* -i i a\ -i~, i-t j. r • ^ are within the meaning 01 the o Anne, c. 19 (4). But an abridgment fairly Acts^fiut an ^S'de is a new book, because the judgment of the author is shewn abridgment j^ j^ i^\ j^ this case the Court decided that it was not a proper fairly made is ^ ' . j i a new book, case to Send to Law to be determined by a jury, as it would be absurd for a judge there, to sit and hear both books read over, which is necessary where one is only a copy from the other, and that the parties ought to fix on two persons of learning in the law to compare the books, and report their opinion (6). Tlie copyright 73. Where 'jhe publishers of a magazine employ and pay an of articles (1) The then statutes applying to (2) lb. the case were 8 Anne, c. 19 (y. s. 11) ; (3) 2 Atk. 143 ; Anon. Lofft. B. 776. the 41 Geo. 3, c. 107 (u. ». 1); and see (4) lb. the 54 Geo. 3, c. 156, s. 4. (5) lb. (6) lb. COPYEIGHT. 297 editor, and the editor employs and pays persons for persons em- Pabt i . 17 1 • x. ployed and Chapter II. writing articles in the magazine, semble, the copyright paid by the Sect. 2. in such articles is not vested in the publishers, under ,-„ the' publisher employing 5 & 6 Vict. c. 45, s. 18 (1). *^^ ^^''' '^^^ 74. Eeports of legal decisions are to be considered (as to copy- Reports of right) as any other literary work (2). But qusere, whether certain arenas to copy- cases in the law reports may be reprinted at length in a treatise "g^^n *othe™^ on the particular subject to which they relate (3). However, it is literary work. piracy to collect together and reprint from the reports of legal collect and decisions all the cases upon a particular subject, though the coUec- the'reportTall tion and classification may be new, and with the addition of several the cases upon a particular previously unpublished decisions and notes (4). subject, and that, though the collection and classification are new, and with unpublished decisions and notes. 75. The copyright in a translation, whether produced by personal Copyright in application and expense, or by gift, is protected by injunction (5). jg protected. 76. In Sill V. University of Oxford (6) it was queried by the Lord Keeper how far the University of Oxford's privilege of printing bibles, &c., extended, and he said that it was his opinion that it was never meant by the patent to the University that they should print more than for their own use, or at least some small number more, to compensate their charge ; and, in an Anonymous Case (J), the Court refused a motion by the King's patentees for an injunction to stop the sale of English bibles printed beyond seas until the validity of the patent had been tried at Law. But upon the answer to a bill by the Universities of Oxford and Cambridge, the King's printer in England not joining, but being made defen- dant, Lord Chancellor Eldon granted an injunction restraining the sale in England of bibles, prayer books, &c., printed by the King's printer in Scotland until the hearing (8). 77. In V. Leadhetter (9) a work alleged to be a piracy was referred to the Master to see whether the works were the same compilation. And in Jeffery v. Bowles (10), on a motion for an in- (1) Brown r. Cooke, 16 L. J. (N. S.) (6) 1 Vern. 275. Ch. 140 ; 11 Jur. 77. (7) 1 Vern. 120. (2) Sedges v. Welsh, 2 Ir. Eq. Eep. (8) Universities of Oxford and Gam- 266. bridye v. Richardson, 6 Ves. 689. (3) lb. (9) 4 Ves. 681. (4) lb. (10) Dick. 429 ; and v. Carnan v. (5) Wyatt V. Barnard, 3 V. & B. 77. Bowles, 2 Bro, C. 0. 80. 298 COPYRIGHT. Pabt I. junction, the Court made a reference to the Master to see if the Chaptek II. Sect. 2. two Dooks were the same. Separate bills '^^- ^^^ proprietor of a copyright must file separate bills against must be filed each bookseller taking copies of a spurious edition for sale. The bookseller Lord Chancellor said the right against the diiferent booksellers was taking copies .... „,,.. of a spurious Dot joint, but perfectly distinct, that there was no privity ; and so of patent rights ; but it would be otherwise of a right of fishery, or the custom of a mill ; such bills prevent multiplicity of suits, and one general right being in the latter cases liable to invasion by all the world (1). 79. Where an author having sold to a bookseller a book of roads, which was printed in letter-press ; after the expiration of the first fourteen years sold it to another, who published the high roads upon copper-plates, and the cross roads in letter-press ; as to the last, an injunction was granted, at the suit of the original book- seller, against the latter, the author having, under the 8 Anne, c. 19, the then Copyright Act, no resulting right as against his own assignee (the original bookseller) after the first fourteen years, and this being part of the former work, although the delineation on copper-plates was a new work (2). Fair abridg- 80. A fair abridgment of a work is no infringement of copy- fringement^ right (3) ; and an abridgment fairly made is a new book, because it is anew ^j^^ invention, learning, and judgment of the author is shewn in abstract in an it (4), and an abstract published in the ' Annual Eegister,' or annual (here) . i i i ■ . n , i ■ 1 1. 1 i not piracy. magazine, was held not piracy, especially as the author himself had published extracts in a periodical paper (5). Under 8 Anne, 81. Lord Chancellor Hardwicke held that, under the 8 Anne, of bo'ok'nor ^ c. 19, the property of books could not vest without being first regis- Jelistraroi! tered or entered with the Stationers' Company (6). 82. The copyright in musical compositions is more extensively protected than the copyright in dramatic pieces (7). There is copy- 83. A person may have copyright in tables calculated by himself, right in tables (1) Dilhj V. Doig, 2 Ves. J. 486 ; and Case) ; Gyhs v. Wilcox, 2 Atk. 143. V, Hudson Vt Maddison, 12 Sim. 416 ; (4) Qyles v. Wilcox, 2 Atk. 141 ; et Polloch V. Lester, 11 Hare 274 ; Cmde^j v. Bell v. Walker, 1 Bro. C. C. 451. V. Ooioley, 9 Sim. 299. (5) Dodslty v. Kinnersly, Amb.403. (2) Carnan v. Bowles, 2 Bro. 0. C. 80. (6) Blackwell v. Harper, 2 Atk. 95. (3) Anon. Loft. R. 775 {Newhery's (7) Russell v. ISmith, 15 Sioj. 181. COPYEIGHT. 299 even thougli the very same tables should have been published long Part I. before his appeared (1). But qusere, whether an injunction will be gjgoT. 2. granted to protect a copyright in tables founded on the author's i t j i, personal calculation of them, when they are of such a nature that one's self, and the same calculation could be made within a short time by any tables are ,1 /o\ - already pub- other person (2). . ligj^e^f 84. An injunction will not be granted where, according to the Long aoqui- 1 1 1 1 ••/■/> 1 1 T • T escence is a case made by the plamtm, there has been long acquiescence under bar to relief. the injury against which he at length seeks protection (3). 85. Where there is a fair doubt whether the Law would give where there damages for the piracy of a work, a Court of Equity will not ^j^gj^^^"^^* maintain an injunction granted ex parte, but will leave the plaintiff ^.*^ would . . . . . . give damages to establish his legal right before it interferes in his behalf (4). for the piracy —ex parte injunction not maintained — plaintiff must iirst establish his legal right. 86. Where the copyright of a work had been assigned by the Where evid- author to the plaintiff, and the plaintiff and author swore that A. plaintiff's (a stranger to the suit) had only a qualified interest in the work, "gn^Ji-a" i^tg^ but A., in an affidavit filed by the defendant, swore that, under a by defendant's •1 1- Ti ■ •! evidence, no bargain between him and the author, he had the entire copyright injunction was of the work, but did not state any deed of assignment; the plaintiff § in fii •,;• /..I • nothing analo- 01 a newspaper, and thereiore the registration 01 the assignment at goua to copy- Stationers' Hall was futile ; but that the proprietor has a right to nfm! q^ ^ ^ prevent any other person from adopting the name, and that this "^^y^paper, right is a chattel capable of assignment ; secondly, that as W. and tion of assi,-{n- the plaintiff knew of the suit between B. and H., and also per- Bu"propiietOT mitted them to carry on the newspaper as partners, the plaintiff ^^^ ^ ^'s'^f *° could only take B.'s share subject to the equities subsisting between adopting the f ,„s name, and the tne partners (Zj. right is a chattel interest assignable. 106. The object of 5 & 6 Vict. c. 45, s. 6, was to obtain for the ob-ect of sect British Museum a copy of every book published anywhere under 6, 5 & 6 Vict. C 43) IS uO obtain a copy of every book whether copyright or not. (1) Morris Y.Ashbee,L. R. 7Eq. 34. 703; 87 L. J. (Ch.) 917; 19 L. T. (2) Keffy v. Eutton, L. E. 3 Ch. (N. S.) 228 ; 16 W. R. 1182. X 306 COPYEIGHT. Paut I. British rule, whether there should be copyrierht in the book or ChaptebII. , ,,, rj b Sect. 2. not (1). 107. By the Constitution of the United States, Congress is em- powered to promote the progress of science and the userul arts by securing, for limited times, to authors and inventors the exclusive right to their writings and discoveries ; and, by successive Acts of Congress, the power of issuing injunctions in this class of cases is expressly vested in the Courts of the United States (2). 108. An injunctioa pendente lite should not be granted on lio-ht grounds, nor in doubtful cases, but should await the full proof upon the final hearing (3). 109. A bill in Equity against three defendants made title on its face in the plaintiff to a copyright, and shewed a wrongful and wilful violation of it by all the defendants, and serious injuries inflicted by, and apprehended from, such violation, and prayed for an injunction against all the defendants, and for a discovery from all ; on general demurrer it was held, that the relief by injunction was not dependent upon the discovery prayed for, but rested on the equities set foith in the bill, and might be refused or granted irrespective of the discovery, although the biU was bad as a bill of discovery (4). ^'"'"'s. 110. In Martin v. Wright (5), where A. made a copy of a print, ' Belshazzar's Feast,' invented by the painter Martin, in colours, and of larger dimensions, and exhibited it as a diorama, Vice-Chan- cellor Sir L. Shadwell, upon the construction of the then Acts relating to copyright in prints (6), particularly 17 Geo. 3, c. 57, refused to restrain the exhibition, until the rights had been esta- (1) Boutledge v. Low, L. R. 3 H. L. 15 & 16 Vict. c. 12, s. 14 ; and prints 100; 37 L. J. (Uh.) 454; 18 L. T. and engravings lomiin:j; part of a Iwolt (N. S.) 874 ; 16 W. K. lObl. are protected by 5 & 6 Yicl. c. 45, and (2) Ililliard, Inj. 469. need not comply witb the requisitions (3) ReJfield v. Middleton, 7 Bosw. of the statutes, ante. But under the 649 (Amr.) International Copyright Act, 7 & 8 (4) Ahvill V. Furrett, 2 Blatch, Cir. Yict. c. 12, s. 19, the inventor, de- Ct. 89 (Anir.) signer, or engraver of a print first piih- (5) 6 Sim. 297. lished abroad, may obtain protection on (6) The Acts creating copyright in complying with 8 Geo. 2, c. 13. Copy- prints, engravings, and etchings, are right in sculpture depends on 54 Geo. 3, 8 Geo. 2, c. 13; 7 Geo. 3, c. 38; 17 c. 56; copyright in original drawings, Geo. 3, c. 57. These Acts are ex- paintings, and photographs, depends on tended to Ireland by 6 & 7 Will. -1, 25 &- 26 Vict. c. 68. c. 59 ; and extended to lithographs by COPYRIGHT. 307 blished at law ; and said that it appeared to him that the 17 Geo. 3, Pakt I. c. 57, never was intended to apply to a case where there was no in- sec™ 2. tention to print, sell, or publish, but to exhibit in a certain manner, and also said that if Martin had exhibited his picture as a diorama then he might have been entitled to an injunction. 111. Prints engraved and struck off abroad, but published here, are not protected from piracy by the statutes of 8 Geo. 2, c. 13, 7 Geo. 3, c. 38, and 17 Geo. 3, c. 57 (1). 112. Where S., the proprietor of a periodical called ' Good Painiings, Words,' agreed verbally with G. to purchase the right to engrave Engravings, certain photographs to illustrate in ' Good Words,' G. reserving the I'liotog'aplis. right to use them in any other publication, and subsequently signed a receipt for " the use of photographs in ' Good Words ' reserving all right to issue the same in any other publication," and afterwards commenced publishing in a separate volume these articles, illus- trated by engravings from the same photographs ; and G. brought au action under the 25 & 26 Vict. c. 68 (" An Act for amending the Works of the Law relating to Copyright in Works of the Pine Arts, and for repress- ^^^^' ing the Commission of Praud in the Production and Sale of such Works") for damages and for a writ of injunction ; and S. filed a bill for a declaration that under the verbal agreement he was entitled to republish the engravings taken from G.'s photographs, for specific performance of an alleged verbal agreement to grant a license to use the photographs for the purpose of engraving and publishing in ' Good Words,' or in any republication of the articles which they illustrated, and that the action at law might be restrained ; Vice- Chancellor Sir R. Malins held, that the verbal agreement extended to the use of the photographs in ' Good Words ' only, that there was no part performance by G. of a contract or license by G. to publish in a separate form, and that S. had no equity, inasmuch as by 25 & 26 Vict. c. 68, s. 3, every leave or license for the publica- tion of photographs must be in writing, and dismissed the bill with costs (2). 113. There may be copyright in a photograph taken from an engraving of a painting (3). (1) Pagt V. Toiunaend, 5 Sim. 395, v. ante, pi. 110, n. (6). (2) Stralmn v. Oraham, 16 L. ']'. (3) Walker, Ex parte. Graves, In re, (N. S.) 87; 17 L. T. (N. S.) 57; 15 39 L. J. (Q.B.) 31. AV. R. 487. X 2 308 COPYBIGHT IN DESIGNS. Paet I. 114. In Jefferys v. Baldwin (1) it was held that one employing Shot. 2. a painter to draw a drawing was not entitled to the protection of the then statute, 8 Geo. 2, c. 1.3. In Blaehwell v. Harper (2) it was held that the then Act, 8 Geo. 2, c. 13, was not confined to works of invention only, but meant the designing or engraving anything that was already in nature, and that a print published of any build- ing, house, or garden, fell within this Act, and that the property in the print vested absolutely in the engravers, though the day of publication was not mentioned in it. Sect. 3. Copyright in Designs. 1. In M'Crea v. Roldsworth (8) the plaintiff, who had invented a design, and registered it under statutes 5 & 6 Vict, c, 100 and 6 & 7 Vict. c. 65, obtained an injunction against a defendant who had manufactured with that pattern, but did not intend the same for sale until after the expiration of the plaintiff's term of protec- tion, restraining the defendant generally, and ordering all articles manufactured, and things used for the manufacture, to be delivered up to be destroyed. 2. Where a piece of manufacture with a design impressed upon it is registered without any explanation or addition in writing, and that design consists of several parts not necessarily united in configuration, but capable of being severed into independent integral parts, then the design registered is the entire thing, exactly as it is described in the pattern furnished to the registrar, and such registration is therefore not open to the objection of un- certainty, but is valid according to 21 & 22 Vict. c. 70, s. 5 (4). 3. Where the plaintiff registered as a design a pattern con- sisting of a combination of distinct designs, and the defendant slightly altered the combination, but not so as to affect the general appearance of the pattern, it was held that this was an infringe- ment of the copyright in the pattern ; Lord Chancellor Hatherley said, here the combination is protected, and if there is any (1) Amb. 164. (4) Holdsworth v. JIf Crca, L. K. (2) 2 Atk. 93. 2 H. L. 380 ; 16 W. R. 226. (3) 12 Jiir. 820. COPYEIGHT m DESIGNS. 309 difi'ereuce of effect, it will be left to the jury to say whether the Paet I. two things are in effect the same. But that the House of Lords seot. 3. in Holdsworth v. M'Grea (1) did not pretend to say that if the difference were infinitesimal you sliould escape from what is right and just, and that he held in this case that the patterns were used in substantially the same manner (2). 4. In Sheriff v. Goates (3) it was held that equitable jurisdiction upon the 34 Geo. 3, e. 23 (Calico Printers Act), was not excluded by the special remedy thereby provided ; and that, independent of An inventor's that remedy, the statute vested in the inventor a right of property, pCTty °ti)ou^h which, though only of three months' duration. Equity would pro- o"iy of three ' ° •' ' 1 J r mouttis dura- tect by injunction, if the title were satisfactorily established. But tion, will be in this case the evidence as to title not having been conclusive, the injunction was dissolved and an issue directed, the defendants keeping an account. 5. The Court Avill itself compare and decide upon alleged Court will piracies by inspection, where that can be easily and safely done (4). and decide 6. By the Copyright of Designs Act, 5 & 6 Yict. c. 100, s. 4, no ^^tion^f '"' person is to have the benefit of the Act unless every article has easily and safely to be attached thereto the letters " E". ;" but although a bill to prevent done. an infringement did not allege that this had been done, yet the Master of the Eolls (Lord Eomilly) held, that the bill was not on that ground alone open to a demurrer (5). But the Court held The copyright that the copyright of a registered design is lost if the proprietor design is lost, (whether English or foreign) sells the registered article abroad seiyrS'^abroad without the letters " E*." being attached thereto, as required by without " R"." ° ' ^ J attached. the 5 & 6 Vict. c. 100, s. 4, and 24 & 25 Vict. c. 73 (6) ; as the benefit of the Acts is forfeited^unless the proper registration marks are attached to all articles and substances to which the design is applied, whether the same are sold abroad or in the British dominions (7). 7. Where four old designs were respectively applied to three ribbons, and to a button, and the three ribbons were then united to (1) Ante. (5) Sarazin v. Hamel, 32 Beav. 145 ; (2) McBea v. EoUswoHh, 19 W. B. 9 Jur. (N. S.) 192 ; 32 L. J. (Ch.) 378, 36 ; 23 L. T. (N. S.) 444. 380. (3) 1 Buss. & My. 159. • (6) Sarazin y. Eamel, 32 Beav. 151 ; (4) lb. 9 Jur. (N. S.) 192 ; 32 L. J. (Ch.) 380. (7) lb. 310 COPYRIGHT IN DESIGNS. Paet I. CliAPTr.ii II. Slot. a. Tlie fmnisli- ing the regis- tiai' a spooi- men of the article to which the design was applied, is a conipUauce with sect. 15 of 5 & 6 Yict. c. 100. the button so as to form a badge, and the badge was then registered under 5 & 6 Vict. c. 100 ; Vice-Chancellor Sir W. P. Wood held, that this union did not amount to a new design -withia the statute, and i-efused an injunction to restrain the manufacture and sale of a similar combination (1). 8. The distinction between the 5 & 6 Vict. c. 100, and the 6 & 7 Vict. c. 65 (2), is this, namely, that the first Act applies to new designs for the ornamentation of articles of utility. And where a design of a carriage was registered under the 6 & 7 Vict. c. 65, and the inventor claimed four things as new and as conducive to the utility of the design, but there was no novelty as to three of them, and they did not contribute to the utility, though the fourth'tended to its utility; yet, as it was the mere extension of a well-known principle, the Master of the Eolls (Lord Eomilly) held that the claim to a monopoly could not be supported under the 6 & 7 Vict. c. 65, and that the design was not protected under 5 & 6 Vict c. 100, as an ornamental design, it not having been registered under that Act (-3). 9. The provisions of the Copyright of Designs Act, 1842, 5 & 6 Vict. c. 100, s. 15, relative to furnishing the registrar of designs with copies, drawings, or prints of the design to be registered, previously to obtaining registration, were, by Vice-Chancellor Sir W. P. Wood, held to have been complied with by furnishing him a specimen of the article to which the design was applied (4). 10. In a suit to restrain an alleged infringement of a copyright in a design registered under the 5 & 6 Vict. c. 100, the defendant does not lose his right to require the plaintiff to establish his title in an action at law, although he delays doing so until the hearing of the canse, and has previously moved to dissolve upon a ground which cannot be maintained. But the defendant was ordered to pay the costs of the motion to dissolve, that motion having become a simply useless motion, whatever might be the result of the cause ; and the bill was retained and the injunction contiimed in the mertntime, the plaintiff undertaking to bring an actio.i (5). (1) Mulloncy v. Stevens, 10 L. T. (N. S.) 190. (2) This Act and 13 & 14 Yict. c. 104, '21 & 22 Vict. c. 70, and the 24 & 25 Vict. c. 73, amended and extended the 5 ct 6 Vict. o. 100. (3) Wiiidover V. Smith, 32 Beav. 200. (4) Noi-tvit V. Xicholas, 4 K. & J. 475. (5) lb. TRADE MAEKS. 311 11. In Balglish v. Jarvie (L) it is quseried whether in the con- PAml. ditjon of copyright, mentioned in the 4th section of the Designs seot. 3. Copyright Act (5 & 6 Vict. c. 100) that the design has, before publication, been registered, the term " publication " is limited to publication after the design bas been embodied and introduced into some fabric. And in tbe same case (2) it is quseried whether the nine months' copyright given by tbe 5 & 6 Vict. c. 100, in any designs ornamenting articles of manufacture, dates from the publi- cation of , the manufacture, or from tbe publication of tbe design. 12. The protection of copyright for three years, granted by 6 & 7 Vict. c. 65, to " any new or original design for any article of manufacture, having reference to some purpose of utility, so far as such design shall be for the shape or configuration of such article," is not clearly applicable to the design of a "protector label," which consisted in making in the label an eyelet-hole, and lining it with a ring of metallic substance, through which a string attaching the label to packages passed ; and tbe Court refused to grant an injunction, before the hearing, against an infringement of sucb design (3). And qumre, what is tbe meaning of tbe words " shape and configuration " in this Act (4). 13. The provisions of tbe 6 & 7 Vict. c. 56, are to be construed Provisions of strictly (5). Therefore a bill filed by a plaintiff to restrain the c. se are eon- sale of certain articles of improved furniture, wbo was shewn to struedstnotiy. have sold' similar articles without having the word " registered" and the date of registration notified on sucb articles, was dis- missed with costs (6). Sect. 4. Trade Maries. 1. Tbough there is no exclusive ownership of the symbols which No exclusive constitute a trade mark apart from the use or application of tbem, symbols^con- yet the exclusive rigbt to use sucb mark in connection with a f ^*"*i"S ^ *' _ ° trade m irk vendible commodity is rightly called property, and the jurisdiction ^pa't from of a Court of Equity to restrain the infringement of a trade mark but the ex- (1) 1 Sim. (N. S.) 336. Sm. 420. (2) Balglish v. Jarvie, 2 Mao. &G-. (4) lb. 231 ; 2 H. & T. 437. (5) Fierce v. Worth, 18 L. T. (K. S.) (8) Margetson. v. Wright, 2 De G. & 710. (6) lb. 312 TEADE MARKS. Part I. is founded upon the invasion of such property, and not upon the Sect. 4. fraud committed on the public, and also upon the fact that an ~. : TYT injunction is the only mode by which the property can be pro- to use the tected (1). And the jurisdiction of the Court in the protection of mark is pro- . c i • i i j- i • peity, and the trade marks restmg upon property, fraud m the deiendant is not the Com-Hs" necessary for the exercise of the jurisdiction (2). founded on such property, not upon the fraud against the public. Ko protection 2. The Court will not interfere for the protection of a trade mark mark, iiidess unless the mark used by the defendant is applied by him to the deFendant'to ^^^^ kind of goods as the goods of the plaintiff, and is such that same kind of jt jnay be, and is, mistaken in the market for the trade mark of goods— and causes mis- the plaintiff, and the plaintiff must prove that the defendant has preiudiciai to used the mark so as to prejudice him in his business (3). plaintiff. Trade mark containing a material mis- representa- tion, not protected. 8. If a trade mark contains a material misrepresentation as to the character of the goods to which it is applied, the Court will not interfere to protect the use of it, even though the misrepresen- tation should be so obvious that no purchaser would be deceived (4). And where a company having a patent for tanned leather-cloth was in the habit of stamping as part of their trade mark the words " tanned leather-cloth, patented," on all their goods, whether tanned or not. Lord Chancellor Westbury held, reversing a decision of Vice- Chancellor Sir W. P. Wood, that the use of those words on goods not tanned disentitled the company to relief against an infringement of the trade mark, and the bill was dismissed, but, as the Lord Chancellor disapproved of the conduct of the defendant, without costs (5). 4. If a name impressed upon a vendible commodity passes modity passes current in the market as a representation that the commodity has If a name upon a com- r^™sen'ta-'' been manufactured by a particular person, the Court would not tion that the transfer to another person the right to use the name simply and article was ,-..,.„. ^^ ^ manufactured without addition, but if it sold the business carried on by the ticulia^-^person, owuer of the name, it might give to the purchaser the right to Court will not transfer it to another, without addi- represent himself as the successor in business of the first maker, (N. S.) 561. (1) Leather Cloth Comx>any v. Atnerican Leather Cloth Company, 33 L. J. (Ch.) 199 ; 10 Jur. (N. S.) 81 ; 9 L. T. (N. S.) 558. (2) Ball V. Barrows, 33 L. J. (Ch.) 204; 10 Jur. (N. S.) 55; 9 L. T. (3) Leather Cloth Company v. American Leather Cloth Company, 33 L. J. (Ch.) 199 ; 10 Jur. (N. S.) 81 ; 9L. T. (y. S.)558. (4) lb. (5) lb. TEADE MAEKS. 313 and in that manner to use the same name. But where a name Pabt i. Ohaptsb II once affixed to a manufactured article continues to be used after the sj,ot. 4. death of the manufacturer, the name in time becomes a mere trade j,;o^_t,^t ^ mark or sign of quality, and ceases to denote, or to be current as purchaser of . Ill ^^^ business indicating, that any particular person was the maker, and would may represent therefore be protected (1). And a trade mark consisting of the suocTssor and initials of the first manufacturers of the goods, may, in the course °^ tiie name ° . . — ^"" " name of time, become a mere mark of quality, without implying a is used after gnarantie that the goods are still manufactured by the same traders ; manufacturer, and such a mark will be protected by the Court on the ground of Jj^g°°".^^™ property (which is the true ground of the jurisdiction of the Court ™''* of sigu in the protection of trade marks), even in the absence of fraud, and will be Such a mark is also valuable property of a partnership, and may g^^j^ ^ ^^^-^ be sold along with the partnership assets (2). is property 5. Where M. & Co. were manufacturer^ of liquorice, and having ship, and made in this country a new description of goods from a mixture -witli the of juice extracted from roots obtained from Anatolia and Spain, partnership'' they stamped upon the manufactured article the mark " Anatolia," and sold it to the public, and acquired a reputation for it in the market, and this was the first use of the word in this way, though juice had previously been imported from Anatolia ; and the mark, about six weeks after its use, during which time it had become known in the market, was imitated by B., at the request of a customer, and attached to their liquorice made from Spanish roots ; Lord Chancellor Westbury held, affirming the decision of Vice- Chancellor Sir W. P. Wood, that the word " Anatolia " so used was a trade mark, and that there had been a sufficient user and adoption of it by M. & Co. to give them a property in it as such (3). 6. The elements of the right to property in a trade mark may be Some of represented as being the fact of the article being in the market as '^^^ma to a vendible article with the stamp or trade mark at the time the custitute • • -mi property in defendant imitates it. The essential qualities for constituting trade mark that property would, Lord Chancellor Westbury said, probably -mark not ^ (1) Leather Oloth Company v. (2) lb. American Leather Cloth Company, (3) McAndrew v. Bassett, 10 Jur. 33 L. J. (Oh.) 199 ; 10 Jur. QS. S.) 81 ; (N. S.) 492, 550 ; 33 L. J. (Ch.) 561. 9 L. T. (N. S.) 5f 8. 314 TRADE MAKKS. Part I. be found these : first, that the mark had been applied by the Sect. 4. plaintiffs properly, that is to say, that they had not copied any copied no other person's mark, and that the mark did not involve any false false repre- representation ; secondly, that the article so marked was actually a sentation, and ni-ni article vendible article in the market ; and thirdly, that the defendants, knowing that to be so, had imitated the mark for the purpose of passing in the market other articles of a similar description (1). But it seems settled that the knowledge of the party is not neces- infringement sary to entitle a plaintiff to an injunction, in such a case. In mark, though Edelsten T. Edelsten (2) it was held that if A. has acquired pro- of the°i'r"ht P^^^y ^^ ^ trade mark, which is afterwards used by B. in ignorance of aoother of A.'s right, A. is entitled to an injunction but not to an account restramed, or Compensation, except in respect of any user by B. after he or compe™'™ became aware of the prior ownership. And the Court will restrain sation. ^jjg ygg |jy ojjg tradesman of the trade marks of another, although such marks had been used in ignorance of their being any person's property, and under the belief that they were merely technical terms (3). 7. Where the plaintiff attached to wire manufactured by him tallies marked with an anchor, and the defendant attached to his manufacture similar tallies marked with the device of an anchor surmounted by a crown, the Court held this was a colourable imita- tion, and that the plaintiff was entitled to an injunction (4). Negotiations 8. Negotiations antecedent to a suit (save in a case of bad faith) suit (save bad Unless amounting to a release or binding agreement cannot be S^* regarded (5). unless a release or binding agreement. It is not 9. An owner of a trade mark will not be deprived of remedy in shew buyer" Equity, even if it is shewn that all who bought goods bearing the if tLegooda ^^^^ ^^m the defendant were well aware that the goods were not are supplied of the plaintiff's manufacture. It is enough if the goods were again. supplied by the defendant for the purpose of being sold again (L) Mc Andrew v. Bassett, 10 Jur. pi. 21, ^osi. (N. S.) 492, 550 ; 33 L. J. (Oh.) 561. (3) Millington v. Fox, 3 My. & Cr. (2) 1 Do G. J. & S. 185 ; .9 Jur. 338. (N. S.) 479 ; 11 W. E. 328 ; et v. Moet v. (4) Edelsten v. Eddsten, 1 De G. J. Couston, 33 Beav. 578 ; 10 Jur. (N. S.) & S. 185 ; 9 Jur, (N. S.) 479 ; 11 W. E. 1012 ; 10 L. T. (N. S.) 395 ; Burrison 328. V. Taylor, 11 Jur. (N.S.) 408 ; et v. (5) lb. TEADE MARKS. 315 in the market ; nor is it necessary to shew that any it is not P^fT I- person was deceived if the resemblance of the articles sh^^ln'^per- Sect. 4. is such as would be likely to cause one mark to be mis- son deceived if •' resemblance taken for the other (1). likely to cause one mark to be taken for the other. 10. If a personal trade mark is in any respect less assignable than one referring to locality only, or a mere device, the distinc- tion must be limited to cases where the mark is so clearly personal as to import that the goods bearing it are manufactured by a particular person ; and, semble, even in that case the objection is rather to the right of using the mark than to its assignable quality. And a corporation trade mark granted by the Cutlers' Company to A corporation a non-freeman is assignable. But ^\ hetber a trade mark granted granted by by the Cutlers' Company be legally assignable or not, a person who c'omnanvTs has purported to assign it for valuable consideration cannot dispute assignable— the validity of the assignment. And where B., being a non-freeman so or not, of the Cutlers' Company, had acquired by grant from that com- estopped pany a corporate trade mark, consisting of the figure of a lion, and '^'^P"*'"". the letters " J. B. 0. S.," and had also acquired, by purchase from assignment. William Ash, the right to the exclusive use of a trade mark " Wm. Ash & Co. ; " and he subsequently entered into partner- ship, and by the articles then executed it was agreed that the corporate trade mark, used with such other mark as might be agreed upon, should be a partnership asset ; and it was also agreed that at the expiration of the partnership the several partners should have the free use and enjoyment of the corporate trade mark for the remainder of their lives, either alone or in partner- ship with any other persons ; and the firm, after carrying on business, in the course of which both the corporate trade mark and the mark " Wm. Ash & Co." were used, fell into difficulties, and the partners assigned all their estate and effects, both joint and separate, to trustees for creditors, by a deed which empowered the trustees to sell the trade, plant, &c., as a going concern, and tliey accordingly afterwards sold the concern to H. B., and assigned to him the partnership property, and the corporate trade mark and the other marks of the firm, so far as they lawfully could ; and shortly afterwards B. entered into an agreement with B. & Co. by which he authorized them to use the corporate mark, (1) Edelsten v. Eddsten, 1 De G. J. & S. 185 ; 9 Jur. (N. S.) 479 ; 11 W. E. 328. 316 TEADE MAEKS. Pabt I. and he also used the corporate mark and the mark " Wm. Ash CjHAptkr TT Sect. 4. & Co." himself; upon a bill filed by H. B. to restrain B. from so doing, the Lords Justices held, upon an appeal from the Master of the EoUs, who had held that B. was entitled to use the trade mark himself, or to allow any person in partnership with him to use it, but granted an injunction to restrain B. from granting the use of the trade mark to any person not in partnership with him, that H. B. was entitled to the exclusive use of both trade marks, and granted an injunction accordingly (1). Upon the formation of a partnership with a person entitled to the benefit of a trade mark, in the absence of express provision in relation to it, it becomes an asset of the partnership, per Turner, L.J. (2). The intra- H. Where any one introduces into the market an article which, market 0? an though previously known to exist, is new as an article of commerce, article new g^^fj j^^g acquired a reputation therefrom in the market bv a name as an article of . . commerce not merely descriptive of the article, the Court will protect the prcYiously use of that name, and no other person will be permitted to sell a thracquirinK similar article under the same name ; and this, although the pecu- a reputation Harity of the name has long been in common use as applied to therefrom by a "^ _ _ ° ^'■ name not goods of a different kind. And it will make no difference that the descriptive, plaintiff has also a trade mark which has not been taken by the name^tobt defendant. And the word " Excelsior " is one in which an exclu- protected— gfye right of user as a trade mark may be obtained ; and upon a though the motion for an injunction to restrain the defendants from selling the name has soap under the name of the " Excelsior White Soft Soap," or any asT^'liedto ^*^® ^^^Y colourably different therei'rom, Vice-Chancellor Sir a different W. P. Wood gianted an injunction to restrain the Defendants kind of goods. ,,,..' from selling, or advertising, or exposing for sale, any soap under the name of " Excelsior White Soft Soap," or any words so con- trived as to represent, or to lead to the belief, that the article sold by the defendants was the plaintiff's article of manufacture (3). Although a 12. Although a party by dismissing his former bill has aban- have'ab'an^ doned all right to the exclusive use of a term, he is entitled to doned right to rggtrain any person from sellint!' a similar article as the " original " exclusive use •' '■ ° ° of a term— one ; thus, where A. (tlie Plaintiff Dr. J. C. Browne) discovered a (1) Bury V. Bedford, 9 Jur. (N. S.) (2) lb. 956 ; 10 Jur. (N. S.) 503 ; 32 L. J. (3) Brahamv. nruHard, 1 H.& M. (Ch.) 741 ; 33 L. J. (Ch.) 4G5. 4-17 ; 11 W . R. lOGl. TEADE MAEKS. 317 mediciue to which he gave the name of chlorodyne, iavented by Paut I. himself as a fancy title, and not previously known in the medical seot. 4. pi-ofession ; and B. advertised for sale a medicine which he called ^e is entitled chlorodyne, and sold as B.'s chlorodyne ; and A. filed a bill against *« restrain a . ,.,. T person selling B., but did not press it to a hearing, and obtained an order dis- a similar missing it with costs, and then B. subsequently advertised his .■ original '' medicine as " original chlorodyne," asserting that he was the first °^®- inventor ; upon a motion for an injunction in a second bill by A. to restrain B. from the use of the term " original chlorodyne," Vice- Chancellor Sir W. P. Wood held, that if he had adduced evidence that any one had been misled by the title into buying B.'s instead of A.'s medicine, he would have been entitled to an injunction (1). 13. In Kinahan v. Bolton (2), a firm which had adopted the An exclusive letters " LL " to designate a peculiar quality of whisky sold by " ll " as a them, was held to have acquired an exclusive right to the use of t^out™alwavs those letters as a trade mark, though they were always preceded preceded by . name of firm. by the name of the firm upon the labels issued by them. 14. In order to prove acquiescence by a firm in the piratical use of their trade mark, knowledge of such use must be proved ; and that is not accomplished by the proof of publication of advertise- ments, which would have been an invasion of the rights of the firm if these advertisements had been issued, not steadily or uniformly, but interchangeably with other advertisements in some respects similar, but not infringing the rights of the firm (3). 15. If an owner of a trade mark, by his bill, asks for an injunc- Both paities tion to which he is entitled, together with an account of profits to ^osts o'ii°° which he is not entitled, and the defendant offers to submit to a ®^'^^'' ^^'^®- . 1 . . .. 1 , ... . , , If defendants perpetual injunction on each party paying his own costs, and the offer to plaintiff brings the cause on for hearing, the Court, holding both in^'^ction parties in the wrong, will give no costs to either side (4). The ^""^ P^y °°^*^' __. ^ ■' and plaintiff Master of the Kolls, in this case, observed that if the defendants refuse, de- had offered to submit to the injunction and to pay the costs, and the titied'to ^^' plaintiffs had afterwards brought the cause to a hearing, he would ^^^^1^1"^°' have given the defendants their costs subsequent to that offer. (1) Browne v. Freeman, 12 "VV. R. (4) Moet v. Gouston, 33 Beav. 578 ; 305. 10 Jnr. (N. S.) 1012 ; 10 L. 'l\ (N. S.) (2) 15Ir.Ch.Eep. 75. 895. (3) lb. 318 TEADE MARKS. PAitrt. 16. It is not necessary in order to give a right to an injunction Sect. 4. ' that a speciiic trade mark should be infringed ; it is sufficient that Not necessary *'^® Court should be satisfied that there was on the whole a fraudu- a specific lent intention of palming off the defendant's goods as those of the trade mark ^ .,,,... should be plaintiff; but in such a case it is essential that the imitation should sufficient if be necessarily calculated to deceive ; and where it did not appear S°a ftaud'*^^'' *^^^ ^^^ ^'^^ ^^ been, in fact, deceived, and a material part lent intention of the plaintiff's peculiar marks had been omitted, the Court, of palming . . . offgdodsas notwithstanding strong circumstances of suspicion, refused to in- plaintiff's — i r /i\ but in such a terfere (1). c.ise it is essential imitation necessarily calculated to deceive. No injunction 17. The Court will not grant an injunction to restrain the issue to restrain . .. '„, issue of goods of goods bearing labels containing a false representation, when cnntainin"- "^ ^ such falsehood is not an infringement of any right vested in the false repie- plaintiff (2). And the persons to whom prize medals have been such repre- awarded by the Commissioners of the International Exliibition, 1862, sentation is , • /. , • i . • , i , ,. -, not infringe- have not ^;pso jacto any special property in the nature of a trade right in '^"^ mark in the words " prize medal ;" and, therefore, where a person piamtiff. ^]jQ ijr^(j jjQ^ obtained such a medal issued his goods with labels No special . , property in affixed to them bearing the words " Prize medal, 1862," the Court trade mark in refused to interfere at the instance of a person who had obtained words;; prize g^^h a medal (3). medal, m ^ ' persons to whom prize medals awarded, ipso facto of the award. It is not 18. It is not necessary in order to maintain a prayer for an in- whole of trade jimction that the whole of a trade mark should have been imitated, mark should ^^^ where the Court is of opinion that the use of a particular be imitated. ^ r Where Court mark is likely to deceive, it will not require evidence of actual of opinion , . , . , mark ia likely deception (4). to deceive, no evidence required of actual deception. The Court 19. The Court will restrain the use by a third party of an arbi- of an arbi- trary name which a plaintiff has invented and applied to a par- tiary name ticular class of goods as sold by him, and which has thus become applied to a ° j ' particular identified with the plaintiff's goods, where the sale of that class of class of goods, . l i /^^ -n r. i • where the sale goods IS Open to the world (5). Hut where the class ot goods is a of that class (1) Woolam V. rMtdiff, 1 H. & M. 1061. 259. (5) Toimg v. Macrae, 9 Jur. (N. S.) (2) Bathj V. Hill, 1 H. & M. 2G4. 3:22 ; Edehten v. Edelsten, 1 De G. J. & (3) lb. S. 185 ; 9 Jur. (N. S.) 479 ; 11 W. K. ("l) Brahiun \. Ilusl.trd, 11 W. 1!. ;!::-. TRADE MAEKS. 319 patented article, no such protection will be afforded, for the name Part I. becomes identified with the goods, not because they are the seot. 4. plaintiff's, but because he alone, as patentee, can make and sell jg open to all them : and if the goods are the same, but made or manufactured in ^^^ world— ' ° but not a totally different way and from a totally different natural source, where the , , . .,.. ,/.,! ,, ,1-1 _L class of goofis SO that there is no inirmgement ot the patent, a third party may is a patented use the name fixed upon by the patentee (1). ^'*^° ®' 20. A. having infringed B.'s trade mark on a blistering ointment manufactured by A., it was agreed between them that all claims in respect of such invasion, not only with respect to A., but to include all parties who might have purchased the ointment from him, should be settled and discharged by the payment of a sum of money, and B. undertook to execute a release of all claims and demands in respect of the infringement. Before the agreement A. had sold large quantities of the ointment to different persons, who, after the agreement, sold it with B.'s trade mark, and suits were commenced against them by B. for injunctions ; A. thereupon sued B. for a specific perfonnance of the agreement to execute a release, and to restrain B. from proceeding in the suits ; but the Court held, that the agreement was confined to sales by A. and all other persons to whom he had sold the ointment prior to the agreement, and did not authorize a sale by the latter after the agreement (2). 2 1 . In Cartier v. Carlisle (3) the Master of the Rolls (Lord Eomilly ) held that a defendant was liable in Equity to account for the profits made by the colourable imitation of a plaintiff's trade mark, though at the time of tlie user he might have been ignorant of the rights, and of the existence of the plaintiff; and he granted a perpetual injunction to restrain the use by the defendant of the plaintiff's trade mark, and an account of the profits accruing from the use of such trade mark for six years prior to the filing of the bill, although the defendant was not aware that such trade mark was the property of the plaintiff or of any other person. However, this doctrine, so far as regards the account, is contrary to that laid (1) Toung v. Macrae, 9 Jur. (N. S.) (2) Oldham v. James, 13 Tr. Ch. Rep. 322 ; Edehten v. Edehtep, 1 De G. J. & 393. R. 185; 9 Jur. (N. S.) 479; 11 W. R. (3) 31 Beav. 292 ; 8 Jur. (N. S.) 328. 183. 320 TEADE MARKS. Pabt I. down by Lord Chancellor Westbury in the case of Edehten v. Sect. i. Edelsfen (1). At Law the proper remedy is by an action for deceit, and proof of fraud on the part of the defendant is of the essence of It is not that action ; but this Court will act on the principle of protectin? necessary to , , ■,■,-, ,i n /. i • . prove fraud property alone, and it is not therefore necessary for the injunction anlnfunction *° P^ove fraud (although it is necessary to do so to entitle the against using plaintiff to an account of profits), or that the credit of the plaintiff a trade mark, ^ _ ... or that de- was injured by the sale of an inferior article. And an injury by credit is loss of custom is Sufficient to support a title to relief, and it is iujured, but ^q^ necessary that proof should be given of persons having been entitle to an actually deceived in having bought goods with the defendant's Loss of profit Di^-rk under the belief that they were of the manufacture of the supports title plaintiff J however, the Court must be satisfied that the resemblance Proof of was such as would be likely to cause the one mark to be taken for ttnnof"^^'theother(2). necessary, but Court must be satisfied resemblance likely to mislead. If a decree 22. Where a decree has been made directing the defendant to defendant to ^ccount for all goods sold by him with a particular stamp thereon, account for \^q jg compellable to disclose the names of all persons to whom he goods sold -^ _ '■ _ ^ with par- has sold any such goods, and if he be unable to give such informa- defendant tion precisely, he may then (but not otherwise) be required to dis- to disetee ^lose the names of all persons to whom he has sold any_'goods which names of lie will not swcar positively were unstamped (3). persons to . . . , , whom he sold 23. A person who has appropriated to himself a particular label, if umfble ^~ sign, or trade mark, indicating that a certain article is made or sold then to dis- j^y j^jj^ qj, ]jjg authority, and with which Jabel or trade mark the close to whom •' •" he sold goods article has become identified, is entitled to the protection of a which he wOl . ,.,.„.. . . not swear Court ot Jbquity, which Will enjoin any one who attempts to pirate stampe'd upon the goodwill of his friends or customers by using such label, sign, or trade mark, without his authority ; but there must be between the genuine and fictitious marks such general similarity or resem- blance of form, colour, symbols, designs, and such identity of words and their arrangement, as to have a direct tendency of misleading buyers who exercise the usual amount of prudence and caution, and there must also be such a distinctive individuality in the mark (1) 1 De G. J. & S. 185 ; 9 Jur. (N. (2) lb. S.) 479; 11 W. E. 328; Yoimg v. (a) Leather Cloth CompavyY. Hirsh- Macrae, 9 Jur. (N. S.) 322 ; v. pi. 6, JieM, 1 H. & U. 295. ante. TEADE MAEKS. 321 employed by the counterfeiter as to procure to him the benefit of Pabt I. Chapter II the deception resulting from the general resemblance between the seot. 4. genuine and counterfeit labels, or trade marks (1). "^ ~ 24. Where a bill had been filed by an American company for where an manufacturing edge-tools of a superior description, incorporated eoXadioted by the law of the State of Connecticut in the United States of ^^* '^P ^ „ •' . . . , custom of America, for an injunction to restrain a manufacturer of Birmmg- manufacturers ham from continuing the fraudulent use of the trade marks and marks as labels of the company on tools made and sold by the defendant, ^j^'^^"^*<"^ ^y and for an account of the profits made by him from such use ; and and that 1-T1 nn ^ 1 plaintiffs, it the manufacturer, by his answer, admitted the use of the trade marks foreign com- complained of, but by way of rebuttal of the charge of fraud ordered goods stated, that in so using the trade marks he had only followed a *° ^^ mjnu- ' ° •' lactured m custom prevalent at Birmingham for manufacturers of goods of the England with kind sold by the company to afifix on the goods ordered by trade mark as merchants a particular trade mark, relying on the respectability of j^^X^^tj^i^"^ the merchants, when known to them, for the fact that those merchants pountry— interim had authority to act as agents of, or by way of license from, the injunction person entitled to the exclusive use of the trade marks ; and that year, with he had been informed that the company themselves had ordered piaintiffrio goods to be manufactured at Birmingham with their own trade *''y ^^^^ir right T 1111T1 /. -, ■ at Law, — but marks upon them as though they had been manufactured m the not doing so United States, for the purpose of sale in foreign countries, and dismissed. these statements were uncontradicted by the company ; Vice-Chan- cellor Sir J. Stuart, upon motion for a decree, after observing that the plaintiffs insisted upon their right to an account of profits, without any trial at Law upon the question how far their alleged legal right might be affected by the facts stated in the defen- dant's answer, but that such a course would be improper, citing Motley y. Bownman (2) in support of that view, ordered that an interim injunction which the defendant had previously submitted to, should be continued for a year, with liberty to the company to bring an action within that time to try their right at Law ; and in case of their not proceeding at Law, or not proceeding to trial within that time, then that their bill should stand dismissed with costs, otherwise further consideration of the costs of the (1) Colladay v. Baird, 7 Upp. Can, Law J. 132. (2) 3 My. & Cr. 1. ■'"'3 322 TEADE MARKS. Part I. suit and all further directions were observed until after such Chapter II. , . i /, ^ Sect. i. trial (1). If the matm- ^^' ^^^^® ■^' ^^ Ordered by B. to manufacture an article and faetuier of an stamp it with a trade mark not B.'s, that alone would lead to a article with a . . trade mark, at suspicion that Some party may exist entitled to it ; and A. having another, caused the article to be manufactured, and admitting having party entitled casually heard of the party entitled to use such trade mark, must to it, he can not Only Submit to a perpetual injunction, but pay the costs of the and must pay Suit, though the defendant had admitted the plaintiff's title and no account was asked ; however, he had refused to pay the plaintiff's costs (2). And in BurgeBs v. Hill (3), where the defendant innocently used the plaintiff's trade marks, and on being served with the biU he removed the labels, and gave an undertaking not to sell any more, but refused to pay the costs, and the suit was continued to a hear- . ing, and the account of profits, which were very trifling, was waived ; Vice-Chancellor Sir E. T. Kindersley held, that the defendant must pay the whole costs of the suit. And where a suit had been institiited to restrain the user of a trade mark and for an account, but no application had been made to the defendant before suit, and he said he would have desisted if he had been applied to, and at the hearing the account was abandoned, but a perpetual injunction was granted ; the Master of the Rolls held, that the defendant must pay the costs (4). 26. Where upon the dissolution of a partnership, which had been carried on for a considerable time by John Douglas and others, as stuff merchants, under the style or firm of " John Douglas & Co.," John Douglas had assigned all his shares, rights, and interests in the business, and the goodwill thereof, to his late partners and another, who thereupon proceeded to carry on business under a new style or firm, consisting of their own names, with the ad- dition of the words " late John Douglas & Co. ;" upon a bill filed by them John Douglas was restrained from resuming or carry- ing on business of a stuff merchant at or in the immediate neigh- bourhood, either alone or in partnership with any other persons whatever, under the style or firm of " John Douglas & Co.," or in (1) Collins Company v. Beeves, 28 7 W. E. 222. L. J. (Ch.) 56 ; 4 Jur. (N. S.) 865. (3) 26 Beav. 244 ; 5 Jiir. (N. S.) 233. (2) Collins Company v. Walker, (4) Burgess v. ffately, 26 Beav. 249. TKADE MAEKS. 323 any other manner holdine; out that he was carryins' on the Part I. . . . „ . . Chaptee II. business of a stuff merchant in contmuation oi, or m succession to, Seot. 4. the business carried on by the late firm of John Douglas & Co. ; and the Vice-Ohancellor (Sir W. P. Wood) said, that the question to be considered was what is included in the term "goodwill"? and observed that the authorities, he thought, were conclusive upon this point, that the sale of the goodwill of a business, without more, does not imply a contract on the part of the vendor not to set up again a similar business himself ; and that he used the expression " similar business " purposely, in order to distinguish the case he was supposing from one where, as here, the vendor seeks to set up again the identical business which he has professed to sell ; and that upon a sale of the goodwill of a business the vendor was not precluded from carrying on a precisely similar business, with all the advantages he might be able to acquire from his own industry and labour, and from the regard people might have for him ; and that in a place next door, for example, to the very place where the former business was carried on ; and that, upon the authorities, it was settled, that if the purchaser wishes to prevent that step from being taken, it is his fault if he does not take care to insert pro- visions to that effect in the deed ; and that the judgment in Cruttwell V. Lye (1) distinctly admitted that although you may set up a similar business you are not entitled, when you have sold the goodwill of a business, to represent that you are continuing the identical business — you are not to say, I am the owner of that which I have sold ; for it really came to nothing less than that (2). 27. In Farina y. Silverloch (3), Vice-Chancellor Sir W. P. Wood granted a perpetual injunction to restrain a printer from printing or selling labels similar to those used by the plaintiff as his trade mark, notwithstanding the possibility that some labels so printed and sold might be purchased lond fide, and for the purpose of being applied to articles of the plaintiff's own manufacture, from which his labels had been lost ; and as the defendant had insisted on an adverse right after having been made aware that the plaintiff had been defrauded through his agency, he was ordered to pay the costs of all proceedings both at Law and in Equity. 28. Where the plaintifi's made and sold soda-water in their own (1) 17 Ves. 335. (2) GhuHon v. Douglas, 1 Job. 174. (3) 4 K. & J. 650. Y 2 324 TEADE MAEKS. Paut I. bottles, marked in the glass with their own name, and pasted over the Chapter II, i ■ i i , . i i i , i i • Sect. 4. corks With reddish labels, bearmg a royal crown and their own name, and they charged the bottles and contents in one price per dozen to their customers, and allowed 3s. per dozen for the empty bottles, the bottles only costing them Is. 6d. per dozen ; and the defendant, who had been a customer of theirs to some extent, being asked for a dozen of soda-water by the plaintiffs' agent, sent for that purpose, supplied twelve bottles, seven of which were not stamped in the glass with the plaintiffs' name, and about which no deceit nor mistake could arise, but the remaining five bottles so supplied bore the plaintiffs' name on the glass, and had been originally made and supplied by the plaintiffs, but to whom in particular did not appear, and the labels on all the bottles so sold were similar in colour to the plaintiffs' labels, and had a royal crown, but had not the plaintiffs' name on them, but the water was not the plaintiffs' water ; and they, on such purchase, without asking for any explanation, filed a bill for an injunction to restrain the use, or vending by the defendant of the plaintiffs' No injunction bottles generally ; Vice-Chancellor Sir W. P. Wood dissolved an dant not ex parte injunction which they had obtained, with costs, the Court hadan inten^*^ being of Opinion, upon the evidence, that the defendant was not tiontomis- ghewn either with an intention, or so as in fact to mislead the lead, nor to ha.ve in fact public (1). But the use of such bottles so as in fact to mislead the public— but if public, though Unintentionally, would be restrained (2). m'itied!'^° ^ 29. It is a serious error to allege in a bill to restrain the im- though un- proper use of a trade mark, that the trade mark complained of intentionally, . . tbe Court will is " similar," when it is in fact the same, or vice versa (3). tion. 30. A man has no property in a trade mark, but he has a right There is no ^^ prevent anybody else from usina; it, so as to attract custom property in a ^ j j o ' trade mark which would otherwise flow to himself (4) ; for though there is no ^sed vide post, . ■, /■^\ i i i ■ ii, pi. 56). property in a trade mark (5), yet a person who has been m tne habit of using a particular mark may prevent other persons from fraudulently taking advantage of the reputation which his goods have acquired, by using his mark in order to pass off their goods as his, to his injury ; and where the plaintiff, an alien ami, manu- (1) Welch y. Knott, iK.& J. 747; (4) Collins Company v. £rotim, 4 Jur. (N. S.) 330. Same v. Cohen, 3 K. & J. 423 ; 3 Jur. (2) lb. (N. S.) 929. (3) lb. (5) Sed vide post, pi. 56. TRADE MASKS. 325 factured, in his own country, goods, which he distinguished by a Paet I. pecuh'ar trade mark, and the goods obtained considerable reputa- seot. i. tion, both in his own country and in various other foreign countries, An alien ami and also in some British colonies, but it was not shewn that any i^ entitled to _ " restrain imita- of such goods had ever been even introduced or imported into tion of trade England ; and the defendant was in the habit of manufacturing in manufactured and selling in this country goods similar in appearance, and with coun'try— Vd an exact copy of the plaintiff's peculiar trade mark, and some of though his , . ' II- • goods not un- these imitative articles were sold and used abroad in countries ported here. where the plaintiff's goods had obtained a reputation ; Vice-Chan- J™^ ^n alien cellor Sir W. P. Wood held, that the plaintiff was entitled to an ^^/^jg^i^a injunction restraining the defendant from copying or imitating the entitled. trade mark ; and, senible, a person on whom an injury is fraudulently committed may have a remedy in the Courts of any country where the fraud occurs, and even though he be at the time an alien enemy ; and a foreign manufacturer has a remedy by suit in this country for an injunction to restrain the fraudulent appropriation of his trade mark, and for an account of profits against a manufac- facturer here who has committed a fraud upon him by using his trade mark for the purpose of inducing the public to believe that the goods marked are manufactured by the foreigner ; and this relief is founded upon the personal injury caused to the foreigner by the defendant's fraud, and exists^ although he resides and carries on his business in another country, and has no establishment here, and does not even sell, or usually sell, the goods on which such trade mark is aiHxed in this country (1). 31. A manufacturer who has adopted a trade mark to desig- nate some particular article as made by him, has a right to the assistance of a Court of Equity to prevent any one from so using the same, or any similar mark, as to induce purchasers to believe, contrary to the fact, that they are buying that particular article to which the mark was originally applied; but where a manu- facturer of Eau de Cologne claimed a trade mark in the labels of his bottles in a certain form, and had obtained an interlocutory injunction from Vice-Chancellor Sir W. P. Wood (2) against a (1) Collins Company v. Brown, Jur. (N. S.) 865. Same v. Cohen, 3 K. <& J. 423 ; 3 Jur. (2) Farina v. Silverlock, 1 K. & J. (N. S.) 929 ; et v. Collins v. Eeeves, 4 509. 326 TRADE MARKS. Part I. printer, who printed and sold similar labels to many persons, but it Sect. 4. * was shewn that in many instances labels the same as, or similar to it, might be sold for a legitimate purpose ; Lord Chancellor Cran- worth dissolved the injunction (giving the plaintiff liberty to bring his action), on the ground, that as many persons were in the habit of retailing the plaintiff's Eau de Cologne, and therefore might rightly use the label, it was not to be assumed that the printer sold the labels for an illegal purpose (1) ; though, according to the Vice-Chancellor in this case (2), the ground of the equity is, that A person ^jjg defendant by knowingly printing labels in imitation of the printinglabels plaintiff's trade mark, and selling them to any one who asked for in imitation of , ■, ■ ^ n ■ ■ ■, ■, atrademaik, them, was supplymg the means oi committmg, and was thus a theni to™ny P^^'^Y to, frauds .which Courts of Equity would interfere to stop at one, is a party their Source. However, the Vice-Chancellor said, in the same case C3'), to a fraud, _ ' ^ " and will be that he thought that in the observations of the Lord Chancellor, cited above, the Court was not pronouncing a judgment on what was to be done in a case like the present, but was giving a reason for directing the question to stand over until after the trial ; and that he thought the cause was not ripe for decision in this Court until an action had been tried ; that the action had been tried, and a verdict found for the plaintiff, and made a decree for a perpetual injunction in the same terms as the above-mentioned order for an interlocutory one. 32. There is no copyright in a trade mark (4). In colourable 33. In cases of alleged colourable imitations of trade marks the trade marks Court has not to consider whether manufacturers could distinguish Court con- between the articles, but whether the public would probably be aiders whether _ '^ ^ •' public would deceived by the alleged spurious imitation (5). deceived, not 34. Where the plaintiffs, who represented T., the original patentees of an article, the patent for the manufacture of which had expired, continued to use labels on their goods printed from the original blocks belonging to the patentees, on which labels the goods were described as patented, and the defendants adopted and (1) Farina v. Silverloch, 6 De G. M. (4) Farina v. SUverlotk, 6 De G. M. & G. 214. & G. 214. (2) Farina v. Silverlock, 1 K. & J. (5) Shrimpton v. Laiyht, 18 BeaT. 509. 164. (3) 4 K. & J. 650. manufac- turers. TRADE MAEKS. 327 issued labels closely resembling those of the plaintiffs, although Part I. the description of the plaintiffs' goods as being patented had ceased seot. 4. to be strictly true ; the Court granted an injunction restraining the ^^^Tcourt defendants from using, being a palpable imitation, labels bearing will restrain ° . . , , . imitation of an inscription appearing to designate the goods contained therein label appear- as being manufactured by the plaintiffs ; and the Court held, that nate gooX^" the plaintiffs were not disentitled to sue by reason that the repre- ™^"iafj;tX^ sentations on their labels were no longer accurate, although the the repiesen- . , , tatives of goods (that is to say pins) were not now protected by patent, nor patentees of manufactured strictly according to the patent, nor exclusively or patent^nd at all by the patentees, who had long since retired ; but that the Jj^'^ *?°"f-ff . defendant was not to be precluded altogether from representing labels were that his pins were manufactured according to T.'s patent (now true in using expired) ; but that he was not to do so in a manner liable to I ^J'^^^^ « mislead (1). . ^^^ defendant entitled to represent his article as manufactured accord- ing to the patent. 35. Where, in 1847, Joseph E. & Sons had obtained an injunc- On an injunc- tion to restrain N. and William R. from using the trade mark ^ restrain " J. R. & Sons," and soon afterwards W. E. entered into partner- "N.& William ' J^ K. ' nsmg the ship with his father John E., and with a brother, and the three trade mark used the trade mark " J. R. & Sons," with a colourable addition ; Sotis ;" the upon the plaintiff moving, in 1853, to commit W. E., and denying ^l^^ .*j^j{ ^ notice of the breach of the iniunction before 1852, the Court held, §?"?/' ^7 „ ■' ' . . ' W.E., oneof that they were entitled to the order; and Lord Justice Sir G. J. the original Turner said, that on the question of acquiescence he thought that in wuiiam E.," a ease of this description, where there had been an injunction granted j^^^A^*^'.^'^ by this Court, there must, in order to deprive the party who had •^°^'^ K., and : -, , . . . r , • n ,. a brother, obtained the injunction of the right to move for committal upon formed a new the breach of it, be a case made out almost amounting to such a a contempt^ license to the party enjoined to do the act enjoined against as ^^ ^' ^' would entitle him to file a bill against others for doing that act ; and said that the party enjoined must, he thought, shew such an acquiescence as would be sufficient to create a new right in him ; and it was also held that the plaintiffs might move to commit W. E. without bringing his partners before the Court (2). 36. Where a person is selling an article in his own name, fraud A person selling an (1) Edleston v. Vick, H Hare, 78 ; (2) Rodgers v. Nowill, 3 Be G. M. & G. 18 Jur. 7. 614. 328 TEADE MARKS. PautI. must be shewn to constitute a case for restraining him from so Ohaftsii II Sect. 4. ' doing, on the ground that the name is one in which another has article in his ^°'°S ^een selling a similar article ; thus where the manufacturer own name, of an article sells it under his own name, and the article attains not restrained by a person great Celebrity in the market under that name, the manufacturer same name, does not thereby acquire such an exclusive right in the use of the unless fraud, ^ame Or title under which the article has been sold as to prevent the use of it, without fraud, by another person having the same name, in the sale of a similar article manufactured by himself; and therefore, where a father had for many years exclusively sold a sauce under the title of "Burgess's Essence of Anchovies," the Court would not restrain his son from selling a similar article under that name, no fraud being proved (1). The Court also held, that delay, from October to March, in appealing from the refusal of a motion for an interlocutory injunction was fatal to the appeal (2). If strong 37. Where there is a strong resemblance in matter, colour, and in matter, arrangement, the Court will presume that it is not fortuitous, but colour, and ^^^^ j^ ,,^^g intentional, with a view to mislead purchasers (3) ; and Court pre- in an alleged infringement of a right to trade marks, the Court sumes it is • i i n i n-a- intentional, must ascertain whether the resemblances and the diiierences are mislead. ^'^''^ ^ naturally arise from the necessity of the case, and whether, The Court qq i]^q other hand, the differences are simply colourable, and the considers ' -"^ ■' whether resemblances such as are obviously intended to deceive the differences are , ... natural from purchaser (4). necessity, or colourable and intended to deceive. Where an 38. Where the plaintiff's father, to whose business the plaintiff patenteTwas Succeeded, had contrived a grate, which he termed " Flavel's Patent represented as Kitchener," but no patent was ever taken out, and the defendant such, and four > r j months H., formerly a servant of F., obtained surreptitiously lists of his pass without customers, and copies of his plans, &c., and used them in con- InlSfe?-*^^^' structiug an exactly similar article, which he sold under the name locutoryin- of "F.'s Patent Kitchener;" but there was no proof that he junction ^ refused, but represented the articles so sold by him as having been actually bring action, made by F., and the plaintiff suffered four months to elapse with- rSi.tVrovecl °^^ ^^^^^S any steps; Vice-Chancellor Sir W. P. Wood held, that right proved. (1) Burgess Y.Burgess,3DeQ.'M..&: (3) Edkston v. Vick, 11 Hare, 78 ; G. 896 ; 17 Juv. 292 ; 22 L. J. (Oh.) 18 Jur. 7. 675. (4) Taylor v. Taylor, 23 L. J. (Cb.) (2) lb. 2'25. TEADE MARKS. 329 as tlie misrepresentation as to the article being patent was so far Part I. fraudulent, and looking also to the lapse of time, the Court would ^^^t. i. not interfere summarily by an injunction in the first instance to au inun f n prevent the defendant using the plaintiff's name in such manner ; would be and therefore the bill was retained six months with liberty to bring an action in jthe meantime, the Court not deciding the question whether the plaintiff had or had not a legal remedy ; but if he should prove to have a legal right, the Court said that he would then be entitled to its aid to enforce it (1). In Morgan v. M' Adams (2), where the plaintiffs purchased from a firm esta- blished iu the United States, knowledge of a secret mode of making crucibles, which had acquired a reputation in America as " Patent Plumbago Crucibles," although the process never had been patented, Vice-Chancellor Sir W. P. Wood held, that they could not main- tain a bill to restrain others from pirating this designation, and dismissed the bill vvith costs. 39. In granting injunctions to prevent the infringement of trade Tlie juris- marks, the Court exercises its jurisdiction in aid of Courts of Law, this Court to i.e., where an action could be maintained in a Court of Law; but fn^ge^eS^of it does not exercise an independent jurisdiction (3). trade mark is a common law right of action. 40. Where the plaintiff, Thomas Holloway, sold a medicine as The sale of "Hollo way's Pills," and the defendant, Henry Holloway, commenced tive^boxes as' selling Pills as "H. Holloway 's Pills," but in boxes, &c., similar to "^■,-^J'°"„ ° _ J ' ' ' way s Pills ' the plaintiff's, and with a view of passing off his pills as the plain- restrained by tiff's, he was restrained by injunction (4). of pills as 41. The boxes of tin plates made at particular works at Car- p;]j° > °^*^ ^ marthen were for a long series of years branded with the mark " M. C." S., a lessee of those works, who had used that mark, subsequently removed his manufactory to other works at a distance of forty miles, and there used the same mark; the Carmarthen works were for some years unoccupied, but afterwards D. and others as co-partners, having taken a lease of them, carried them on, and branded their boxes with the mark " M. C," and styled (1) Flavell v. Harrison., 10 Hare, (3) Foot v. Lea, 13 Ir. Eq. Eep. 484 ; 467 ; 17 Jur. 368 ; 22 L. J. (Ch.) 866. Motley v. Downman, 3 My. & Cr. 1. (2) 36 L. J. (Ch.) 228 ; 15 L. T. (4) Holloway v. Holloioay, 13 Beav. (N. S.) 348. 209. 330 TEADE MAEKS. Pabt I. themselves " The ' M. C Tin Plate Company ; " S. then obtained Sect. 4. ^n injunction to restrain D. and his partners from using the mark "M. C./' or the designation of the « M. 0. Tin Plate Company;" but, upon appeal, Lord Chancellor Cottenham dissolved the in- junction, with liberty to S. to bring an action, the defendants not to be prejudiced in the meantime, with liberty for both parties The Court, in to apply^ and the costs reserved. The Lord Chancellor said, that jurisdiction the Court, when it interferes in cases of this sort, is exercising inMn'™'°™f a jurisdiction over legal rights; and that although, sometimes, of trade in a very strong case, it interferes in the first instance by ininnc- maiks, is. . . -, . . exercising tion, yet, m a general way, it puts the party upon asserting his orcr legal" right by trying it in an action at law. If it does not do that, it rights, and, permits the plaintiff, notwithstanding the suit in Equity, to brinar except ma-"^ '■ ° . very strong an action, and that in both cases the Court is only acting in aid poop P^ A general rule of, and is Only ancillary to, the legal right ; and, further, that he party upon could hardly conceive a case in which the Court would at once ^?5^^*™s l^is interfere by injunction, and prevent a defendant from disputing the The Court plaintiff's legal title, and that the present order appealed from aid of, and is interposed the injunction, and did not put the parties in a situation to'thTleeal^ ^o try the question at Law (1). And an injunction to restrain a right. defendant from using the particular style or title adopted by the plaintiff will not be granted, if the Court entertains the sh'ghtest doubt of the plaintiff's right to sustain his title at Law (2). tion of a™^" ^^' Where one company assumed a name somewhat similar to similar name, the name of another company, but it did not appear that the first but without . probability company was likely to suffer any injury thereby, the Court refused injury"not to grant an injunction, leaving the plaintiffs to bring their action sufficient for at la W (3). an injunction. "• '' 43. In ClarJc v. Freeman (4), the Court refused an injunction to No injunction i . p i p i j to restrain prevent a chemist from selling a quack medicine, under a false and mediciM^aa colourable representation that it was a medicine of the plaintiff's, e^nenr *° eminent physician. The Master of the KoUs (Lord Laugdale) physician, as the Court has no jurisdiction to restrain a libel. (1) Motley V. Downman, 3 My. & (3) London and Provincial Law Or. 1 ; Foot v. Lea, 13 Ir Bq. Eep. 48i. Assurance Society v. London and Pro- (2) Purcer v. Brain, 17 L, J. (N. S.) vinciu! Joint Stock Life Iniurance Gh. 141. Company, 11 Jur. 938. (4) 11 Be:iv. 111'. TEADE MAEKS. 331 said that he thought the granting the injunction in this case would Paet I. Ohapter II imply that the Court had jurisdiction to stay the publication of a seot. i. libel, and that he could not think it had. 44. Where the plaintiff had invented and sold a medicine under his own name, and the defendant had also made and sold a similar medicine, and on his labels had the plaintiff's name and certain certificates given of the efficacy of the plaintiff's medicine, in such an ingenious manner as prima facie, though not in fact, to appro- priate and apply them to his own medicine ; the Court held, that although there were other differences in the mode of selling, the proceeding was wrongful, and the defendant was restrained by injunction (1). 45. Where a blacking manufactory had long been carried on No man has under the firm of Day & Martin, at 97, High Holborn, and the sell Ms own executors of the survivor continued the business under the same |°°jg ^j ® name, and a person of the name of Day, having obtained the another— No authority of one Martin to use his name, set up the same trade at right to adopt 90 J, Holborn Hill, in bottles and with labels having a general -which he has resemblance to those of the original firm ; the Court restrained by ^ght^^and^^ injunction the defendant from selling, exposing for sale, or pro- thereby to curing to be sold, any composition described as, or purporting to another, to be, blacking manufactured by Day & Martin, in bottles having ^^hhc. affixed such labels as in the bill mentioned, or any other labels as, by colourable imitation or otherwise, to represent the blacking sold by the defendant to be the same composition or blacking manufactured and sold by J. W. (the manager) for the benefit of the estate of C. Day, the testator, and from using trade cards with the same object. And the Master of the Eolls (Lord Langdale) Injunction observed that it had been very correctly said that the principle in title esta- these cases was this : that no man had a right to sell his own goods ^j['^ntfff^*^d'^ as the goods of another, and that you might express the same ".^^d a con- principle m a different lorm, and say, that no man had a right to degree of mis- dress himself in colours, or adopt and bear symbols, to which he i^^s'tatementT had no peculiar or exclusive right, and thereby personate another *° *^® public, person, for the purpose of inducing the public to suppose, either that he was that other person, or that he was connected with and selling the manufacture of such other person, while he was really (1) Franks v Weaver, 10 Beav. 297. 332 TEADE MAEKS. Part I. selling his own, and that it was perfectly manifest that to do these Seot. 4. things was to commit a fraud, and a very gross fraud ; and that he had stated on a former occasion that, in his opinion, the right The right to which any person might have to the protection of the Court did does not ^ot depend upon any exclusive right which he might be supposed any'^exclusive ^^ i^BtYe to a particular name, or to a particular form of words : right to a that his right was to be protected against fraud, and fraud might name or fonn be practised against him by means of a name, though the person to be pro'- practising it might have a perfect right to use that name, provided frau/ ^^*™^' ie did not accompany the use of it with such other circumstances as to effect a fraud upon others : that it was perfectly manifest that two things were required for the accomplishment of a fraud such as was there contemplated ; first, there must be such a general resemblance of the forms, words, symbols, and accompaniments as to mislead the public ; and secondly, a sufficiently distinctive individuality must be preserved, so as to procure for the person himself the benefit of that deception which the general resemblance was calculated to produce, and that to have a copy of the thing would not do, for though it might mislead the public in one respect, it would lead them back to the place where they were to get the genuine article, an imitation of which was improperly sought to be sold : that for the accomplishment of such a fraud it was neces- sary in the first instance to mislead the public, and in the next place, to secure a benefit to the party practising the deception by Equity preserving his own individuality (1). And in Perry v TrueJUt (2) protects trade ^ jg q^^q i^^i^ down that the ground on which a Court of Equity marks on the ... . ground that a protects trade marks is, that it will not permit a party to sell his be allowed to own goods as the goods of another ; and that a party will not goods^as°ui^ therefore be allowed to use names, marks, letters, or other indicia, goods of ijy -vvhich he may pass off his own goods to purchasers as the another ; nor •' •' -^ . . 7 . will he be manufacture of another person. But if a plaintiff coming for an use indicia injunction in such a case appears to have been guilty of misre- mav pa*^ off presentation to the public, a Court of Equity will not interfere in bis own goods the first instance, and give its assistance in aid of a legal right ; as the manu- o -j facturo of another. But if plaintiff appears to have been guilty of misrepresentation to the public, no injunction in first instance until legal right estiiblislied. (1) Vrnft V. Day, 7 I'.oav. 84. (2) 6 Bcav. (3H. TRADE MAEK8. 333 and the case was ordered to stand over, with liberty to bring an Past I. action (1). In Gout v. Ahfloglu (2), the Court granted an injunc- sj-qt. 4. tion to restrain the making and sending to Turkey watches having the plaintiff's name, or the word " Bessendede" (which signifies " warranted " or " approved ") engraved thereon in Turkish cha- racters, in imitation of the plaintiff's watches. And in Day v. Imitation of Binning: (3), the Court granted an injunction against imitating a restrained, blacking label, though the difference appeared on a careful read- ence appeared ing. In Enoti v. Morgan (4), the Court granted an injunction to °° careful restrain a defendant from running an omnibus having upon it such injunction names, words, and devices, as to form a colourable imitation of the fgainst words, names, and devices on the omnibuses of the plaintiff. ranning an •^ omnibus with 46. In Perry v. Truefiit (5) Lord Langdale said, that he owned words, &o., that it did not seem to him that a man could acquire a property colourable merely in a name or mark, wd^*'Xc°^ 47. Where the plaintiff had used a considerable degree of mis- °^ plaintiffs omnibuses. representation m statements made to the public respecting the mode of procuring and making up a new description of tea, called " Howqua's Mixture," the Court refused an injunction to restrain the defendant from selling tea under the name employed by the plaintiff, and in a particular kind of package which the plaintiff had introduced, until the plaintiff had established his title in a Court of Oommon Law (6). 48. Where A., the inventor of a medicine, employed B., a foreigner residing abroad, to manufacture it for him there, and sold it in England for his own sole profit, and a label and seal denoting that the medicine was manufactured by B., and sold by A., were affixed to each of the bottles in which it was sold, and the defendants imitated the labels and seals, a demurrer was allowed to a bill by A. and B. to restrain the imitation, and for an account of the sales of the spurious labels and seals. The Court observed that the plaintiffs did not shew that they were entitled to an account from the defendants ; for that it could not understand from the bill that Pelletier (B.) had any interest in the labels and seals, (1) Perry v. TruefiU, 6 Bear. 66. (5) 6 Beav. 73. (2) 6 Beav. 69, n. (6) Bidding v. How, 8 Sim. 477 ; et (3) 0. P. 0. 489. V. Perry v. TruefiU, pi. 45. (4) 2 Keen, 213. 331 TEADE MAEKS. Paet I. Chapter II. Sect. 4. Though evidence of right to a mark as a trade mart very unsatis- factory, yet defendants, having made so complete a copy, must be taken to have intended to gain an to which they were not entitled. Upon dissolu- tion of part- nership, each partner may carry on business in name of old firm. and that the circumstance that he was the inventor of the seals would not justify the Court in interposing in his behalf, for he was a foreigner ; the Court said that it did not protect the copyright of a foreigner, and that it appeared, therefore, that Pelletier was not entitled to the account; that the injunction was ancillary to the account; and that the parties who asked joint relief were not entitled to joint relief; therefore on that gi-ound the demurrer must be allowed (1). 49. Where A. and B. filed their bill alleging a right to a trade mark in the word " Ethiopian " upon black cotton stockings, acquired by A. and a former partner deceased, praying an injunc- tion and account of profits, and the defendants denied plaintiffs' right to the mark as a trade mark, stating that other parties used the word prior to A. and his partner, but admitted that they (the defendants) had copied the mark from the plaintiffs' stockings, but denied any fraudulent attempt in so doing ; though the evidence as to the plaintiffs' right to the mark as a trade mark was very unsatisfactory, yet the Court held (refusing a motion to dissolve an injunction), that the defendants having made so complete a copy of the plaintiffs' mark, the difference being only nominal, must be taken to have done so with an intent to gain an advantage to which they were not entitled ; and also, that although the personal representative of A.'s deceased partner might have a right to participate in the property (if any) of the mark, A. had such an interest as to entitle him to file the bill (2). 50. When a partnership is dissolved each partner is entitled, in the absence of express agreement, to carry on business in the name of the old firm (3). 51. Charles I. having granted a charter to the Cardmakers' Company to use the Mogul stamp on cards, the plaintiff, suggest- ing a sole right to the stamp, as having appropriated it to himseK conformably to the charter, moved for an injunction to restrain the defendant ; but Lord Chancellor Hardwicke refused the in- junction, observing that he thought the intention of the charter (1) Delmdre v. Shaw, 2 Sim. 237. of trade marks, and the above was not But see pi. 30, ante, that protection is a case of copyright, but of trade mark, given to foreigners against infringement (2) Mine v. Lart, 10 Jur. 106. (8) Bmtks v. GibsoTj, 11 Jur. (N, S.) 680 ; 34 L. J. (Ch.) 591. TRADE MAEKS. 335 was illegal, except the clauses establishing the corporation, and Part I. Ottapter II giving them power to make by-laws, and said that he knew no seot. 4. instance of granting an injunction in Chancery to restrain one trader from using the same mark with another, and that it was not the single act of making use of the mark that was sufficient to maintain an action at law, but doing it with a fraudulent design to put off bad cloths, or to draw away customers ; and said that the Attorney-General had mentioned a case inPoph. 151, where an action at law was brought by a clothworker against another of the same trade for using the same mark, and judgment was given that such an action would lie ; the Lord Chancellor said, that there must be the fraudulent design above mentioned, and that the objection of the defendant taking away the plaintiffs' customers by using the same mark (the Mogul stamp on his cards), was of no more weight than if one innkeeper should set up the same sign as another ; and that the Court, however, would never establish a right claimed under a charter only from the Crown, unless the right had been first tried at Law (1). But if, without any intention to defraud, another person uses a trade mark, where a firm has for a consider- able time carried on their trade using a distinctive mark on their goods, the Court will interfere to restrain him (2). 52. Where wine marked with a counterfeit of the plaintiff's brand Where dock had been imported into this country, and A. had made fcowaj^cZe restrained advances on the security of the dock warrants ; an injunction having P^''ti°g.^'tli been granted to restrain the dock company from parting with counterfeit it, the Court, on the application of A., ordered the wine to be wine was delivered to him on the counterfeit brand being removed, but de]ivered°to'' made A. pay the costs of the application ; and also held, that the <'''e^i*°>' °° ■^ "^ '- ^ ' security of priority of charges on the wine was, first, the expenses of the dock warrants on company ; secondly, A.'s claim ; and thirdly, the plaintiffs costs of removed!™" suit (3). Priorities of 53. The Master of the EoUs (Sir J. Komilly) refused an applica- There can be tion by the " Colonial Life Assurance Company," for an injunction "f ^^^^^J to restrain another company (lately established) from using the " Colonial," (1) Blanchard v. Bill, 2 Atk. 484-, Company, Limited, 33 Beav. 548 ; Mil- 3rd Ed. ; et v. Poph. 144. lingtm v. Fox, 3 My. & Cr. 338. (2) Colonial Life Assurance Com- (3) Ponsardin v. Peto, JJmelli, Ex pany v. HoTne and Colonial Assurance parte, 33 Beav. 642. 336 TEADE MAEKS. Past I. Chapter II. Seot. 4. nor of the ■word " Home;'' they are not symbols. style of " the Home and Colonial Assurance Company (Limited) ;" observing that the object of the application was really to obtain the monopoly of the use of the word " Colonial," and said that if a company which did colonial business could not call itself " Colonial," it was obvious that under a species of assertion that the word " Colonial " was symbolical, the plaintiffs might prevent every other person using it as descriptive of his trade ; that it was obvious that such a claim could not be maintained, and that it would establish a monopoly of the use of the words "Home" and " Colonial," and that such a contention had never been advanced before (1). 54. Where a wharfinger received notice that a quantity of wine deposited at his wharf was branded with a fraudulent imitation of a trade mark of the " Veuve Cliquot Champagne," and that the owner of the trade mark was about to apply to the Court of Chancery for an injunction to prevent the sale of the goods, and after the injunction had been granted in a suit of Ponsardin v. Stear (2), but before the wharfinger had notice that it had been granted, he refused to deliver the goods to the holder of the dock warrants, who had advanced money on them ; the Master of the EoUs (Sir J. Eomilly) held, that he was justified in Equity in such refusal, and restrained the owner of the goods from suing him at Law for a wrongful conversion of the" goods ; and this decision was afSrmed by the Lords Justices (3). 55. Where a trade mark contains an emblem, with such a collo- cation of words as amounts to an advertisement of the character and quality of the goods, and contains statements which, though true which, though ^ •' . . , , i j true as as regards the original adopter of the trade mark, are calculated orfginal to deceive the public when used by his assignee, the assignee is "'^I'^uMeTto ^°* entitled to protection in the use of such trade mark (4). And deceive the public "when used by assignee, assignee not entitled to protection. A wharfinger with notice that wine with false brand is deposited at his dock, and of intention to apply for injunction, is justified in Equity in refusing to deliver wine to holder of dock warrants. Where a trade mark contained statements, (1) Colonial Life Assurance Com- pany V. Home and Colonial Assurance Omrvpany, Limited, 33 Beav. 548. (2) M V. Ponsardin v. Peto, 33 Beav. G42. (3) Hunt V. Maniere, 34 Beav. 157 ; 13 W. R. 212, 363. (4) Leather Cloth Co., Limited, v. American Leather Cloth Co., Limited, 11 H. L. 0. 523 (affirming a decision of the Lord Chancellor, reversing a deci- sion of Vice-chancellor Sir W. P. Wood) : 11 Jur. (N. S.) 513; 35 L. J. (Ch.) 53 ; 33 L. J. (Ch.) 199 ; 1 H. & M. 271 : 13 W. E. 873. TRADE MARKS. 337 where an advertisement or trade mark states that An advertise- Past i. ,.,. ^, ., ,, J,! 1-i.n mentor trade Chapter IT. which IS not true, it cannot be made the subject or m^rk stating Sect. 4. protection by the Court of Chancery (1). But where ^^tJ^'^l'j^oV' persons of the name of Crockett manufactured leather- entitled to . protection, cloth, and put on it a stamp describing it as manu- factured by them at New Jersey (U.S.) and West Ham, Essex, and as being patented, and being tanned ; and a company bought their manufactured articles, their materials for manufacture, goodwill, and premises at West Ham, and their trade marks ; senible, that on such a purchase the continued use by the purchaser of Crockett's original label was not a fraud on their part ; and if the use of it had been infringed, it might have been protected (2) ; Lord Cran worth (in the House of Lords) observing that the question in every such case must be, whether the purchaser of a manufactory using a trade mark in continuing the use of the original trade mark would, according to the ordinary usages of trade, be under- stood as saying more than that he was carrying on the same business as had been formerly carried on by the person whose name constituted the trade mark, and that in such a case he saw nothing to make it improper for the purchaser to use the old trade mark, as the mark would, in such a case, indicate only that the goods so marked were made at the manufactory which he had purchased. But where, in a stamp used by the defendant, the form of the printed words, the words themselves, and the pictured symbol introduced among them, so much differed from that of the plaintiff's that any person with reasonable care and observation must see the difference, and could not be misled into taking the one for the other, the House of Lords held, that there had been no infringement (3). 56. Lord Cranworth observed in the above case that if the word " property " is aptly used with reference to " copyright," he saw no reason for doubting that it might with equal propriety be applied to trade marks, and that the right which a manufacturer has in his trade mark is the exclusive right to use it for the purpose of indi- cating where, by whom, or at what manufactory the article to which it is afSxed was made ; and treating it as property, or as an (1) Leather Cloth Co., Limited, v. American Leather Cloth Co., Limited, 11 H. L. C. 523. (2) lb. (3) lb. Z 338 TEADE MAEKS. Part I. accessory of property, Lord Cranworth thought that a trade mark Chapter TI. . , ^ , , , , « , i , Sect. 4. might be Sold aud transferred upon a sale and transfer of the manufactory of the goods on which the trade mark has been used to be fixed, and might be lawfully used by the purchaser (1) ; and that where a company purchased all the property, utensils, goodwill of business, and trade marks of a manufacturer, this purchase would authorize the company, really carrying on business at the same place, to continue the use of the manufacturer's name and marks, so as to. be protected therein against the infringement of the same (2). 57. A trader may mark his own manufacture either by his name, or by using any symbol or emblem ; and if such symbol or emblem comes by use to be recognised in trade as the mark of the goods of such trader, no other trader has a right to stamp it upon his goods of a similar description ; and as the usage of trade does not confine the name of a firm to the original partners only, but The vise of a extends it to subsequent partners and transferees, the use of the trade mark , » , . . , by new trade mark by the new partners or successors of the original successorrof adopters is no fraud on the public, but only a statement that the original goods are the goods of the firm whose trade mark they bear. If, adopters is ^ ° _ _ •' _ not a fraud howcver, the trade mark contains statements materially afiecting the value of the goods, such statements must be judged as if made in separate labels or advertisements, the test being, whether they are material misstatements, and calculated to deceive the public (3) : •per Lord Kingsdown. If the goods 58. Although a trader may have a property in a trade mark, derive their gi^iug him a right to exclude all others from using it, if his goods iT'iuTfr'm derive their increased value from the personal skill or ability of the personal skill, adopter of the trade mark, he cannot give any other person the adopter, he right to af6x his name or mark upon their goods, for the effect any^other^^ thereof would be to give them the right to practise a fraud upon person the the public (4). nglit to ardx '^ ^ ' his name or mark upon their goods. Eepiesenta- 59. Representations contained on the blinds and brasses of a fronl"to°^^^°'''*hoP"f''0'^''j calculated to induce the public to believe that the (1) Leather Cloth Co., Limited, v. Amencan Leather Cloth Co., Limited, 11 H. L. C. 523. (2) lb. (3) lb. (4) lb. TRADE MARKS. 339 owner is connected in business with a firm of established reputa- Paet I. tion, will be considered upon the same principles as govern rights g^ox. i. in trade marks (1). Therefore, where a tradesman (the defendant), 7^^^ ~rp^ in addition to his own name upon his shop-front, placed upon his ^ believe owner coil" sunblind and upon his brass plate the words " from Thresher & neoted with Grlenny " (in whose employment he had been), the word " from " estaUished being much smaller than the words " Thresher & Glenny :" the reputaiion, ° •' restrained. Court, being of opinion that what the defendant was doing was Simulations calculated to mislead the unwary, the heedless, or the incautious iec'Sye the ° portion of the public (2), and there being evidence that persons ?°^^''''' had been actually misled, granted an injunction restraining the incautious, defendant from using the name of the firm " T. & G." about his shop in such a way as to mislead the public into the belief that his shop was the shop of " T. & G.," or that their business was carried on there (3). But before the Court will interfere to prevent one trader from making fraudulent use of the name of another, it requires to be satisfied not only that the course taken by the defendant is calculated to deceive the public, but that representa- tion has been made to him by the plaintiff that it will have that effect (4). 60. Where a defendant sold tobacco-pipes packed in boxes- or Use of labels, cases upon which were labels or descriptions of a similar character imUatinns to those of the plaintiff, using the plaintiff's name as being the v^^^^ "^ real manufacturer, the defendant having a person in his employ restrained, of that name; Vice-Chancellor Sir W. P. Wood held, that such colourable imitation and use of the labels aud descriptions could be restrained by injunction (5). In Barnett v. Leuehars (6) the defendant was restrained from selling or exposing for sale fireworks, not manufactured or sold by the plaintiff, in boxes bearing the plaintiff's labels. In Southorn v. Reynolds {!) two One of two persons, brothers, whose father had originated the manufacture fiie*a bnuo^ of pipes, and designated them as " Southern's Broseley Pipes," restrain in- , 1 . , J. , , . o . 1 „ J r > fringement of on the death oi their lather, manufactured at Broseley, but deceased father's trade mark. (1) Glenny v. Smith, 2 Dr. & Sm. (4) Williams v. Osborne, 13 L. T. 476. (N. S.) 498. (2) As to this point, see pi. 63. (5) Southorn v. Reynolds, 12 L. T. (3) lb. (N. S.) 575. (6) 14 W. R, 166. (7) Supra. 3 2 340 TEADE MAEKS. Part [. Chapter II. Sect, 4. Initmction is granted to restiain in- fringement of ti-ade mark, althougli the scientBr is not proved, but no account of proiits. The Court will not assume that plaintiff would liave sold all the articles sold by defendnnt niarlievi with plaintiff's trade mark ; damage must be proved. at separate establishments, and for their separate benefit, pipes of a like character, and one of the brothers instituted a suit to restrain the use of the trade mark, the other declining to join in such suit; Vice-Chancellor Sir W. P. Wood held, that the one brother might alone file a bill for an injunction and account. 61. In Harrison y. Taylor (1) the Court granted an injunction to restrain the use of the plaintiff's trade mark by the defendant, though the scienter was not proved ; but refused an account of profits, on the ground of delay by the plaintiff in commencing the suit. Howeyer, in Meet v. Couston (2), it was held, that a person innocently selling goods bearing the spurious trade mark of another person is not in Equity liable to account for the profits made thereby, but that the owner of the trade mark is entitled to an injunction. 62. Where the plaintiffs had obtained a decree restraining the defendants from the use of a trade mark in sales of cloth, and directing an inquiry whether the plaintiffs had sustained any and what damage, and the plaintiffs did not prove any direct damage, but, in the absence of evidence to what extent the defendants had used the trade marks, they claimed damages equal to the profits made by the defendants on all their sales of cloth ; Vice-Chan- cellor Sir W. P. Wood held, that they had failed to prove any damage. The Vice-Chancellor said that the plaintiffs had not proved that they had sold a yard less cloth since the acts of the defendants, or lost one customer by them, but they asked the Court to assume that they would have sold all the cloth which the defendant had sold marked with this trade mark ; that the Court, however, could not make this assumption, and that the authorities were to the same effect ; that in Blofeld v. Payne (3) nothing was proved but the fact of fraud, and the jury gave to the plaintiff one farthing damages ; so it was here ; and as the Court did not award nominal damages. His Honour declared that the plaintiffs had sustained no damage by the acts of the defendants, and ordered that the costs of the application (a summons adjourned from (1) llJur. (N. S.)408: (2) 33 Bear. 578 ; 10 Jur. (N. S.) 1012. (3) 4 B. & Ad. 410. TEADE MARKS. 341 Cbambers, to proceed with an inquiry as to damages) should be Part I. borne by the plaintiffs (1). Sect. 4. ' 63. To entitle a trader to relief against an illegal use of his to entitle to trade mark, it is not necessary that the imitation should be so f'f^i®*'' I'eeem- _ ■' _ _ blanoe of close as to deceive persons seeing the two marks side by side ; but trade mark the degree of resemblance must be such that ordinary purchasers, as likely to proceeding with ordinary caution (2), are likely to be misled (3) ; ^dinaiT and where the proprietors of a long-established weekly comic persons ... Tii-r> 1. T • IT.. with ordinary periodical called ' Punch moved to restrain the publication of caution. ' Punch and Judy,' a rival periodical of like character, and of the same size as, and of somewhat similar appearance to, ' Punch,' but with a somewhat different illustration on the cover, and sold at a lower price, and another well-known comic periodical was pub- lished weekly under the name of ' Judy ;' Vice-Chancellor Sir E. Malins held, that the adoption of the title 'Punch and Judy' was no infringement of the plaintiffs' right to use and property in the name ' Punch,' on the ground that persons of ordinary intelligence were not likely to be misled into purchasing the defendant's publi- cation by mistake for that of the plaintiffs, and refused an injunc- tion (4) ; and the actual physical resemblance of the two marks is Actual physi- not the sole question for the Court, for if the plaintiff's goods have, ^^ ^<^sem- from his trade mark, become known in the market by a particular ?o'e question, name, the adoption by the defendant of a mark or name which defendant's will cause his goods to bear the same name in the market is as fam^nameln much a violation of the plaintiff's rights as the actual conv of his ™°'''^^* ^^ ■^■' plaintiff's, and mark ; and although the defendant may have some title to the use ^^^^ public to of a name or mark, he will not be justified in adopting it, if the are'purohas- probable effect of his so doing is to lead the public to suppose g'ildf^^^hiT^ that in purchasing his goods they are purchasing those of the ^'^'**'^^ *° plaintiff (5). '"^""'^"*'''" 64. The name of a manufacturer, or a system of numbers The name of a adopted and used by him in order to designate goods of his make ™^°"facturer, ,,,.„, . ' or a system of may be the subject 01 the same protection in Equity as an ordinary "umbers to ■' designate goods — may (1) Leather Cloth Company v. 192 ; 12 Jur. (N. S.) 215. •» protected. Eirschfield, 14 W. R. 78 ; 13 L. T. (4) Bradlury v. Beeton 39 L J (i^; S-)427. (Ch.) 57; 18 W. E. 33:' 21 l' t' (2) As to this point, see pi. 59. (N. S.) 323 (3) Seixo V. Provezende, L. R. 1 Ch. (5) ih. 342 TRADE MAEKS. Part I. trade mark (1). But where, A. beius; a thread manufacturer of Chaptkb II, ' o Sect. 4. ' repute, B. bought in the market thread, wound on spools, not made by A., of inferior quality, and cheaper than A.'s, and not bearing his name, but marked with the name of a firm of winders of thread who were known to be accustomed to purchase of A. thread in the hank for the purpose of winding, and selling it when wound, and B. sold the goods to a wholesale customer, with the assurance (given, as he said, without knowledge of any misrepresentation) that they were of A.'s make, and invoiced them to the customer under the description of certain numbers, which A. had adopted and exclusively used in order to designate his particular manu- facture, and the customer attached A.'s name to the spools of thread, and retailed it to the public as of A.'s make ; Yice- Chancellor Sir W. P. Wood held, that there was not such a degree of wilful misrepresentation on the part of B. as would justify the Court in granting an injunction, and the bill was dismissed, but without costs (2). The use of a 65. A trader may establish a trade mark by the use of a crest, bliah a trade and anything which amounts to an imitation of the crest as a trade "^^ ' mark would be restrained by the Court. But the use of a different crest by another trader, if not accompanied by other indicia to make it a colourable imitation of the trade mark of the plaintiff, and the use of will not be restrained (3). And in Standish v. WTiitweU (4), Vice- fl. orpst rG" strained, Chancellor Sir W. P. Wood granted an injunction to restrain the dant^s'i^t'^up^"' ^^® ^^ ^ trade mark, though the defendant alleged that it was his (but without family crest, and had been so for many generations, but there was proof) that it no registiy at the Heralds' College of the alleged crest (an eagle) CTest." ^™^ ^ as being that of the defendant's family. Laches (here) 66. Where a plaintiff lay by for two years before filing a bill heidlo dfs^"' ^r an injunction, having seen labels of the defendant exhibited entitle to publicly, which he now complained of as being colourable imitations of his labels, Vice-Chancellor Sir W. P. Wood held, that such laches disentitled the plaintiff to relief (5). Plaintiff 67. Where an order had been made for an interim injunction to cairying suit (1) Ainsworth v. Walmsley, L. B. (3) Beard v. Tunier, 13 L. T. 1 Eq. 518. (N- S.) 746. ('2) lb. (4) 14 W. R. 51'-'. (5) Bou-d V. Turner, 13 L. T. (N. S.) 746. IIIADE-MAEKS. 343 restrain an alleged infringement of a trade mark, and the defendant, Part I. wishing to avoid farther litigation, agreed to pay all costs, and to Sect™. give an undertaking not to use the trade mark complained of ;, u .■ ^ Vice-Chancellor Sir J. Stuart held, that the plaintiff persisting in where defen- 1 . 1 . -Ill- /-IN dant agreed carrymg on the suit to a hearmg, was not entitled to his costs (1). to pay costs But in Tonffe v. Ward (2), where a manager, without the personal undertaking knowledge of his master, W., affixed tickets with the defendant's '^"^ *° "^®, ° _ _ _ mark— not name printed thereon to certain goods of inferior quality to the entitled to liia defendant's and made by another manufacturer, and on the de- conti^ne fendant's complaining of this, W. offered to give an undertaking '^^^)- that he would not use sucji tickets again, and to pay a certain sum, but declined to make a public admission that he had used the tickets in order to defraud the defendant; the Court held, that, notwithstanding W.'s offer, the defendant was entitled to an in- junction with costs, and also to an inquiry as to damages at his own risk. 68. The Court will not restrain the use of a label on the ground No injuuction of its general resemblance to the trade mark of another manufac- genlia™!"^ turer, if it is different in the points which a customer would look at semblance, where diffe- m order to see whose manufacture he was purchasing (3). rent in points which a ciis- tomer would look at. 69. Where a trader produced and sold an ink which he de- " steelpen's signated " Stephen's Blue Black," and it was shewn to the public "^^i^Hbel"* in a label in white capital letters of large type, and the defendant ^'^^^ ^ colour- sold an ink in bottles similar in size, designated as "Steelpen's of '^SiepAen's Blue Black," also in white capital letters of large type ; Vice-Chan- '''"^ ^^'" cellor Sir W. P. Wood held, that this was a colourable imitation of the trade mark, and the defendant was restrained by injunction from the further use of it (4). 70. In 1847 Baron von Liebig discovered and published a process A term of for making an extract of meat. The extract was made extensively tect^dTs*f '"" at the Eoyal Pharmacy, Munich, and sold there, with the permission ^^^^'^ '^'^^■ of the Baron, as "Liebig's Extract of Meat" from 1861 to 1864. It became generally known in Germany and other countries, and the term "Liebig's Extract of Meat" became used as a term of art in (1) Eudson V. Bennett, 12 Jiir. (S) Slackwell v. Crabb, 36 L J (Ch) (N. S.)519. 504. (2) 21 L. T. (N. S.) 480. (4) Stephen y. Peel, 16 L. T. (N. S.) 145. 344 TEADE MARKS. Part I. scientific treatises. In 1864 Baron Liebig gave the Fray Bentos Sect. 4. Company the right of using his name in connection with the extract of meat manufactured by them. In 1864 a company bought the business and property of the Fray Bentos Company, and by a deed-poll dated the 12th of April, 1866, the Baron granted to the plaintiff company the exclusive right and privilege to use his name in connection with the extract manufactured by them. The defendants, who had previously sold extract manufactured by the Fray Bentos Company, in 1866 began to sell as " Liebig's Extract of Meat " an extract manufactured by Mr. Tooth, in Australia, after Liebig's process. On a suit being instituted by the plaintiff company to restrain the defendants from so using the name "Liebig's Extract of Meat," Vice-Chancellor Sir W. P. Wood held, that the term having been used as a term of art to designate a well-known process long before 1861, the defendants were fully justified in using it, and the bill was dismissed with costs (1). Au inscription 71. Where E. Scott and W. Scott carried on business at N. and a representa- G. in partnership under the firm of " E. & W. Scott," and by an p'artibB^ad^ agreement for dissolution it was agreed that one of the partners succeeded to gijould remain at N., but there was no stipulation bv which either the business . -^ -^ of a late firm party bound himself not to continue the business, but only that at suit of one they would not carry it on together, and there was no disposition firm who had ^^ *^^ goodwill to the partner who remained at N., and neither set up business p^rtv was to use the name of the firm except so far as might be near one of^-' ,.^. ■, i ■, i- the places of necessary in winding up the partnership affairs ; and shortly after late firm. the date of the agreement W. Scott retired from the business, and set up for himself at T., near N. ; and the inscription used by the firm over the door of their place of business at G. had been " E. & W. Scott of N. ; " E. Scott made over his business at N. and G. to the defendants, who, at their premises at G., made use of the inscription " Scott & Nixon, late E. & W. Scott of N. ; " on the application of W. Scott, Vice- Chancellor Sir W. P. Wood granted an injunction restraining them from using such an inscrip- tion, inasmuch as it amounted to a representation that they had succeeded to the business of the late firm (2). 72. An infant who had sold spurious articles, representing them (1) Liebig's Extract of Meat Com- (2) Scott v. .'^colf, 16 L. T. (N. S.) party v. Ilanburtj, 17 L, T. (N. S.) 2n8. 143. TEADE MAEKS 345 to have been manufactured by the plaintiff, was ordered by the Paet I. Master of the EoUs (Lord Romilly) to pay the costs of a suit for 's^eot'^'4. ' an injunction (1). 73. In a case of alleged fraudulent imitation of a musical publica- ^ug^gj f^.^^^_ tion (independently of copyright), where the Court did not consider dulent imita- the fraud clearly made out, it held that an injunction ought only lication, not to be continued on the terms of the plaintiff undertaking to bring out, iiyunction an action, and to be answerable in damages (2). 9?^^ j°"" terms of undertaking to bring an action and being answerable in damages. 74. The use of the word " patent " having come to be applied in The word common language to various manufactured articles as a word of a^ordof art art, and descriptive of a particular class of goods, without any f?'^ desorip- reference to letters-patent, the use of the words " patent thread " as ticuiar class part of the description in a label or trade mark on an unpatented not such a article, is not such a misrepresentation as to deprive the owner of ^on asbf de-^" his right to be protected against the infringement of his label, P""'"^® °^ "S^^ , 1 /. 1 p *° protection where the goods, from the usage of many years, have acquired the of trade mark. designation in the trade generally of " patent " (3). 75. In substance there is no distinction between the sale of a No distinction business and goodwill by a trader himself, and a sale by his of business'^ assignees in bankruptcy (4). Therefore, on a sale of a business bv f^^ goodwill 1 > • ■ 1 1 "y trader, or a trader s assignees m bankruptcy, the trader has no right, upon by bis assig- setting up a fresh business after his discharge, to use the trade mpto™ and'^' marks of his own business, or in any other way to represent him- afiM h°°d'^^* self as carrying on the identical business which was sold, although '''^arge to use he has a right set up again in business of the same kind next door of sold busi- to his old place of business (5). In such a case it is no objection present that^" to the purchaser coming for the assistance of the Court, that he ^'* ^? carrying . . 'on the identi- has continued to use the name of the old business which he found <=al business there (6). '°^'^- 76. In Lee v. Haley (7), Vice-Chancellor Sir K. Malins said that No one is (1) Ghubb V. Griffiths, 35 Beav. 127. (6) lb. allowed to (2) Ghappell v. Davidson, 8 De G. (7) 39 L. J. (Oh.) 284; L. E. 5 Ch M. &G. 1. 155; 18 W. E. 181, 242; 22' L T (3) Marshall v. Boss, L. E. 8 Eq. (N. S.) 251, 546 ; v. Croft v Bav 651 ; 39 L. J. (Ob.) 225 ; 17 W. E. 7 Beav. 86 ; Perry v. Truefitt, 6 Beav' 1086 ; 21 L. T. (N. S.) 261. 66 ; Kelly v. ffutton, L. E. 3 Ch. 708 ; (4) Hudson v. Osborne, 39 L. J. 16 W. E. 1182 ; Bradbury v. Beeton, (Oh.) 79. 18 W. E. 33. (5) lb. 346 TRADE MAEKS. Pakt I, whenever a name was established {i.e., as a trade mark) and its use Sect. i. ' bad obtained, no one else could adopt the same name, because by use a trade doing SO he might lead the public into believing they were dealing mark so as it with one person when they were really dealing with another ; that may mislead ^ r, . . . , and deceive the Court said, you shall not so deceive the public ; that the Court would restrain anything which might have the effect of so deceiv- ing the public, and that its doctrines were not restricted by any Injunction to technical rules as to property. In this case plaintiffs were, in the name^™^ August, 1869, and had for some time previously, been carrying "Pall Mall „Q business under the style of the Guinea Coal Company, their Guinea Coal _ •' r J> Company "in offices being at No. 22, Pall Mall; and in the early part of granted to 1869 the defendant, who had formerly managed their business. Company" °^ '^^^ ^^^ known personally and by his handwriting to the plaintiffs' liaving offices customers, established a business on his own account under the m Pall Mall. style of the "Pall Mall Guinea Coal Company," his offices being first at Beaufort Buildings, whence, in August, 1869, he removed to No. 46, Pall Mall, and the words "Pall Mall Guinea Coal Company " were on his blind ; and the defendant solicited orders principally by circular, sending circulars to many of plaintiffs' customers, and had succeeeded in obtaining orders, which the customers afterwards said they had intended for the plaintiffs ; Lord Justice Giffard held, affirming a decision of Vice-Chancellor Malins, that they were entitled to restrain him from using the But no relief name " The Pall Mall Guinea Coal Company " in Pall Mall. But had^sy^tema- if ^^^ plaintiffs had, as alleged, been systematically and knowingly tically and carryinff on a fraudulent trade, and delivering short weight. Lord knowingly jo i i n been deliver- Justice Sir G. M. Giffard said it was beyond all question that this weight. Court would not interfere to protect them in carrying on such trade. Although the bill was not filed till the 24th of November, 1869, the Court held, that there M'as no laches, inasmuch as the plaintiffs were obliged to wait until sufficient proof of the injury they had received was collected (1). A trade secret 77. When a man has learnt a trade secret from his employer, Ira^o^eHnd and practised it after the employer's death, selling the article the article sold mj(jgj. tj^Q q\^ name, he will not acquire such a right to the after em- (1) Lee V. llahy, 39 L, J. (Ch.) 284 ; L. R. 5 Ch. 155 ; 18 W. K. 181, 242; 22 L. T. (N. S.) 251, 546. TEADE MARKS. 347 exclusive use of the name as a trade mark as will be ployer's death, Pakt I. , ^ 1 . r\ i J -CI -i /I \ under old Chaptee II. protected m a Court oi liiquity (IJ. name, gives Seop. 4. no right of use of name as a trade mart. 78. Where W. originally manufactured starch at a place called Glenfidd, and for this reason he called his starch the " Glenfield Starch," and it became well known in the market by that name, and he continued to use this name, though he removed his manu- factory from Glenfield, and on the labels which were placed on the packets of his starch it was called the " G-lenfield Starch," and 0. set up a starch manufactory at Glenfield, and called his starch by a different name, and his labels were of the same colour as those of W., but labels of this colour were used by all starch manufac- turers, and at the bottom of O.'s labels were these words, " 0. & Co., manufacturers, Glenfield ;" and a bill was filed to restrain C. from making useof the word " Glenfield ;" Lord Justice Sir W. M. James „ i, ° ' It there is no held, reversing a decision of Vice-Chancellor Sir E. Malins, that 0. false represen- had done nothing to represent his starch to be the same as that of article is the W., and that the words " G. & Co., manufacturers, Glenfield," were ofThVpllin^- true, and not told in a way to deceive, and, consequently, no injunc- tiff'?— a trade tion ought to be granted (2). be enjoined— the words here " Glenfield, &o." being true, and not told in a way to deceive. 79. In England the assumption of a name, the patronymic of a The assump- family, by a stranger, who has never before been called by that thTpatrony™' name, is not the subject of a civil action, as by the English law ™^° °^ another , . . , „ . family, will there is no right of property m a person to the use of a particular "ot be name to the extent of enabling him to prevent the assumption of ^™^ ' his name by another (3). But it is otherwise as to the exclusive Unless the use of a name in connection with a trade or business, which rio-ht ?*""* *^ "f'''^ ' '"x^" *&"" m connection is recognised in this country, and a party using it is considered ^'"^ ^ trade. to iave been guilty of a fraud, or at least of an invasion of another's right, and renders himself liable to an action, or he may be re- strained from using the name (4). 80. Where B. & Co. for many years had afiSxed a label or trade mark to the bottles in which their ale was sold, and D. & Co. adopted a label bearing a general resemblance to that of B. & Co., (1) Hovenden v. Lloyd, 18 W. E. (3) Du Boulay v. Du Boulay, L. R. 1132. 2 R C. 430; 1.7 W. R. 594 ; 38 L. J. (2) Wotherspoon v. Gurrie, 18 W. R. (R C.) 35 ; 6 Moo. R. C. 0. (N S ) 31 ■ 942 ; 23 L. T. (N. S.) 443, 22 L. T. (N. S.) 228. (4) lb. ' 348 TEADE MARKS. Part I. but differing from it in several particulars, the Court dismissed a Sect. 4. ' bill by B. & Co. to restrain D. & Co. from using such label with Costs not costs. But if a trader imitates another person's label or trade gWen where ^^^k, and sails SO near the wind as just to avoid an injunction, infiinKfment though the Court does not grant the injunction, it will not will- sailing near ingly give him any costs of the proceedings (1). Any person ^^' When articles of a particular kind of an original manufac- raay manufac- turer (or patentee, as the case may be) have become generally (and if a known in commerce, any person has a right after the expiration of expiration of the patent to manufacture such articles and sell them under that patent) which j^ame ; but he may not, in inscribing the name as a proper name known by a on his shop-front, or otherwise, lead the public to believe that he is name, and use r> i • i /> /r,\ that name, sellmg as the agent for the origmal manufacturer (2). but he must not lead public to believe he is agent of original manufacturer. A defendant 82. A defendant whom the Court held, on the chi^f point in fimid^ though issue, to have been guilty of a fraudulent misrepresentation, was, successful on thousrh successful on another point, ordered to pay the whole another point ° ^ ^ ■' — ordered to costs (3). costs. 83. Where the plaintiff, carrying on business as " H. Schweitzer Aft'^^^*^^^' ^ Co.," sold a preparation of cocoa labelled, " Schweitzer's Cocoa- Co. 's Cocoa- tina, or Anti-dyspeptic Cocoa," and the defendant, who had been colourable in his employ, set up business in partnership with a man also ™Schwe1tzer's Ji^med Schweitzer, and sold a similar preparation of cocoa, labelled Cocoatina or " Schweitzer, Atkins, & Co.'s Cocoatina ;" Vice-Chancellor Sir E. &c. Cocoa. Malins held, that this was a fraudulent and colourable imitation, and an injunction Was granted accordingly (4). 84. The general rule is, that where a manufacturer adopts a certain trade mark, and stamps it upon the article manufactured, he is (subject to the question of the extent of user necessary (5)), entitled to the exclusive use of it, and a Court of Equity will restrain by injunction any other person who pirates such trade mark from using it. It is no defence that the article simulating the genuine one is of equal value with the genuine one (6). But (1) .Bass V. Dawber, 19 L. T. (N. S.) (3) lb. (326. (4) Schweitzer v. Atl-ins, 37 L. J. (2) Wheeler and Wilson Manu- (Oh.) 847 ; 16 W. E. 1080; 19 L. T. facturing Company v. Shakespeare, (N. S.) 6. 39 L. J. (Ch.) 36. (5) Mandreiu v. Bassett, post. (6) Hilliard, [nj. 2nd Ed. p. 490. TEADE MAEKS. 349 the article must be a yendible article, and in the market. In Pakt I. M' Andrew v. Bassett (1), Lord Chancellor Westbury said : " The sect. 4. elements of the right to that property (i.e., in a trade mark) may be represented as being the fact of the article being in the market as a vendible article with that stamp or trade mark at the time when the defendants imitate it." 85. An alien manufacturer may maintain a bill in the United An alien is States for an injunction against a citizen of the United States to fj^g u. s. in restrain the use of a trade mark (2). *e ™e of a trade mark. 86. Slight differences, which would not be perceived without Slight differ- strict examination, will not protect the imitation from the injunc- protect the tion (3). So a provisional injunction was granted to the assignee }^-'^*yo/™" of a trade mark, restraining the use of a very similar trade mark, And the add- which was calculated to mislead the public into the belief that it dant's name in was the plaintiff's, although it bore the defendant's name in very T^^J ^""."l^ l6tt6rSj IS not small letters (4). And an action to enjoin the use of a trade sufficient to mark cannot be resisted by shewing that the names used on injunction, the trade mark are false and fictitious (5). The test of granting o^i'^dTmark an injunction is held to be a substantial similarity, and an intent ^° "°* diaen- to continue the manufacture, it may be had against an agent, tion. represented as the proprietor, without joining the real secret substantial' ^ owner (6). similarity. ^ ' Injunction may be granted against agent represented as proprietor, without joining real secret owner. 87. In order to procure an injunction : first, an intent must be To entitle to shewn to injure the originator, by disposing of the defendant's iXinten^ ' wares as his ; secondly, if consisting of words, they must indicate ^^^\ ^^ shewn ownership and origin, not merely quality, kind, texture, composi- nator by dia- tion, utility, intended use, or class of consumers. Names having wa^res°a3 his ■ a definite and established meaning, and not indicating ownership, ^"''^' ll origin, or something equivalent, cannot be exclusively appro- "i"^* indicate priated. Thus, the plaintiffs, being importers of gin, were accus- origin^ n^t™ tomed to label it " Club-house Gin." The defendants afterwards ^^aKty, &a. labelled their gin " Club-house, J. T. Daley," and painted, upon f aX^t'^^T established (1) 33 L. J. (Oh.) 561, 567 ; v. pi. 5, (4) Walton v. Crowley, 3 Blatchf. meaning, and ante. 0. C. 440 (Amr.). (2) Taylor v. Carpenter, 11 Paige, (5) Stewart v. Smithson, 1 Hilt. 119 2 royol, &c. ; held, the defendants should not be enjoined ownership, from their use of the word (1). iKc, Will not ^ ' be protected. Sect. 5. Letters. The Court 1. Where the plaintiff," who had been for some years manager of company'"^'" * * Company carrying on business at 190, Regent Street, severed opening tjj^g connection, and set up in the same line of business at 203, letters . addressed to Regent Street, and advertisements had been published stating manager at that he was no longer manager of the company ; and letters, the address of g^j^g pf them on his own private affairs, continued to be occasion- the company, i ' except in his ally addressed to the plaintiff by name, at 190, Regent Street, as to unless after which letters, forwarded by the Post Office to 190, the company Postinaster- claimed the right of opening and deciding whether they were General is not intended for the plaintiff or themselves ; upon motion by the a proper party ^ "■ . "^ to the bill as plaintiff to restrain the company from receiving and opening letters addressed to him by name, at 190, Regent Street, and bearing no external indication that they were intended for the company, and also to restrain the Postmaster-General from delivering letters so directed to any other than A.'s present address (203, Regent Street), Vice-Chancellor Sir W. P. Wood held, that as against the Postmaster-General, who had been improperly brought before the Court, the motion must be refused ; but that the company must give an undertaking until the hearing not to open, except in the plaintiff's presence, letters addressed to him at 190, Regent Street, unless, after due notice, the plaintiff should not attend at the The Court company's offices for the purpose by a specified hour (2). And in will restrain ggieHg y. BraMl (3), Vice-Chancellor Sir J. Stuart granted an successors to '• '' ° business open- injunction restraining the defendants from opening letters ad- address^ed to dressed to the plaintiffs, their predecessors in business, from whom predecessors. ^-^^^ -^^^ obtained exclusive licenses to work particular patents. The plaintiffs possessed many more patents than those for which they had granted exclusive licenses to the defendants ; the defen- (1) Cm-win v. Daly, 7 Bosw. 222 (2) Stapleton v. Foreign Viwyard CAmr.). Association, 12 \V. R. 976. (3) 11 W. li. 796. LETTERS. 351 dants had given notice to the postmaster at Oldham to send them Part I. all letters addressed to the Plaintiffs & Co., Oldham, and ac- ^Xot^s."' cordingly letters so addressed were received and opened by them. The Vice-Chancellor said that the defendants had persisted in receiving and opening letters bearing names upon them which were not their names, and that the defendants had no right what- ever to open letters merely because it happened that they were addressed to the town or the place where they carried on busi- ness ; that it had been argued they bad a right to do so because they had licenses to work patents belonging to the plaintiffs ; he said they might have contracted for that right, but had not; that one letter from India contained an order for a centrifugal pump, for the manufacture of which the plaintiffs possessed a patent, and that the defendants replied by sending their list to the correspondent ; and that the plaintiffs were clearly entitled to an injunction. 2. If a solicitor of a company writes a letter apparently on be- Solicitor of half of the company, he has no such property in the letter as to ^ritf^g ap. entitle him to prevent its publication, although he swears that it P^r'^J^"" was written in his private capacity (1). pany, no such 3. The sending of a letter bearing the character of a literary letter as to composition does not give the person to whom it is transmitted the vent*pubiicr- right to publish it for his own benefit ; otherwise, if published to *i°°- vindicate his character from false imputations cast upon him by the writer (2) ; and where a defendant moved (ou putting in an The Court answer) to dissolve an injunction obtained against his selling a book pubiicatio™of of ' Letters from Pope, Swift, and others,' the Lord Chancellor said letters. a collection of letters, as well as other books, is within the inten- tion of the Statute of 8 Anne ; but the receiver of a letter has at most but a joint property with the writer, and possession does not give him license to publish it, and the injunction was continued as to letters written by Mr. Pope, but not as to those written to him (3). But in HopMnson v. BurgUey (Lord) (4), it was held that the receiver of a letter is the owner of it, and may use it for all lawful purposes ; and that the only right which the writer of it has in (1) Howard v. Qunn, 32 Beav. 462. (3) Pope v. Ourl, 2 Atk. 342. (2) Perceval (Lord) v. Phipp!<, 2 V. (4) L. R. 2 Ch. 447 ; 36 L. J. (Ch.) & B. 19. 504. 352 CHATTELS— SPECIFIC CHATTELS. Pabt I. reference to it, is to restrain publication ; and it was also held that Sect. 5. " ^ defendant in Equity cannot refuse to produce private and con- But a defen- fi^^^iitial letters from a stranger, on the ground that the writer dant in a suit forbids their production. But the plaintiff will be put upon an cannot refuse . . to produce Undertaking not to use them or any copies of them for any confidential Collateral object. Lord Justice Sir Gr. J. Turner said that the riahi^dff^''"t ^I'it®'' of a letter trusts the receiver with the letter, and he must upon under- take the consequences of its being in his possession, and that the taking not to -i-ii i use them for question which then arose was between a stranger and the receiver ; object. *^** if the sender of a letter wishes to restrain the receiver from If the sender shewing it to any other person, he must file a bill for that purpose ; 01 a l6tter iiii i ^ • i • wishes to re- and that unless that was done the property was in the receiver ; shewing hYo"^ and Lord Justice Lord Cairns said that the question in aU these any other per- cases was, what was the purpose or object in the mind of the person file a bill. sending the letter ; that the writer was supposed to intend that the receiver might use it for any lawful purpose, and that it had been held that publication was not such a lawful purpose; but that if there was a lawful purpose for which a letter could be used, it was the production of it in a Court of Justice for the further- ance of the ends of justice ; that in the present case the recipients were justified in declining to produce the letters without the direc- tion of the Court, but that they could not then refuse to produce them, and that the costs would be costs in the cause. The author 4. The author of any letter or letters, or his representatives, hasmetxclu- whether literary compositions, or familiar letters, or letters of si'^^ T'g^* °? business, possesses the exclusive right of publishing them ; and the except to vin- receiver can only justify their publication, without the consent of the or'character^of writer, by a necessity of vindicating his own rights or character (1). Sect 6. Chattels — Specific Chattels. Court has 1. Upon a bill to restrain parting with a picture, Vice-Chancellor Mte deUv"ery ^i^' W- P- Wood held that the Court has jurisdiction to order the t^th \rtisr^ delivery up to an artist of a picture painted by himself, as having but the juris- a special value, or as being a specific chattel of a peculiarly valuable diction not (1) Woohey v. Jtidd, 4 Duer. 379 (Amr.) ; Hilliard, Inj. 2nd ed. 479 : Fer- ceval V. PJiijipK, 2 V. & B. 19. CHATTELS-SPECIFIC CHATTELS. 353 kind, the legal remedy being inadequate (1). But where by the Paet I. terms of an agreement, and the frame of the pleadings, an artist' ^^^ q seeking restitution of a picture had, in effect, put a iixed price exercised if upon it, the Vice-Chancellor held, that damages would be an ade- damages . , . 11^" adequate quate remedy, and that this circumstance raised an jnsuperable remedy. diflSculty to the exercise of the jurisdiction of a Court of Equity in such cases (2). 2. Where a chattel (in this case coal-wagons), from being used gale or deten- in business or otherwise, has a peculiar value, the Court will enter- ofThattek"^ tain a bill for an iniunction to restrain its sale or detention (3) ; and ^'^^s peou- •' . "^' value, where specific things necessary for conducting a particular business from being are in the possession of persons who claim a lien upon them, and business. threaten an immediate sale, this Court has undoubted jurisdiction to interfere by injunction, and prevent irreparable injury to the debtor, by giving him an opportunity of redeeming (4). 3. Where a bill was filed for the delivery up of specific chattels (furniture and household effects) deposited by the plaintiff with A., his agent, which A. fraudulently contracted to assign to B., and B. advertised to be sold ; and for an injunction to restrain the sale by B., and to restrain A. and B. from parting with the goods, the goods being still in the possession of A., the agent, the Court over- ruled a demurrer by B. (5) ; Vice-Chancellor Sir J. Wigram said. The Court the question here was, whether a Court of Equity would not, at Tgenrparting the suit of the principal, restrain his agent from parting with the '«Ti*^^pe<'iflo possession of his property, by which the plaintiff's title would be deposited by embarrassed, if not defeated ; and that he had not the slightest doubt that the plaintiff was entitled to the protection of the Court against the wrongful act which was threatened by his agent, and that he had known many bills to have been filed in the Court of Exchequer (then) formerly, on behalf of the owners of cargoes, to prevent improper dealings with the goods by their agents, or persons in the situation of agents, and that the right to be protected The right to in the use or beneficial enjoyment of property in specie is not the^benefioiaT enjoyment of (1) Bowling v. Betjtmann, 2 J. & H. Co., 2 Giff. 64. 544 ; V. nils V. Bead, 3 Ves. 70 ; The (4) lb. Fusey Earn Case, 1 Vera. 273. (5) Wood v.BowcUffe, 3 Hare, 304 ; (2) lb. 6 Hare, 187 ; 2 Ph. 382. (3) North V. Oreat Northern Baihv. 2 A 354 CHATTELS— SPECIFIO CHATTELS. Part I. property in Confined to articles possessing any peculiar or intrinsic Sect. G. ' confined to" Value, and that in this case the plaintiff was clearly articles poa- entitled to the iniunction to restrain the sale of the Bessmg pecu- •' liar or intrin- goods, in order to carry into effect the attempted The jurisdic- alienation of the property (1). And the jurisdiction of confinedto *^® Court by injunction to protect the possession, and to decree chattels, the the delivery up of specific chattels, is not merely as to such the which would loss or injury to which would not be adequately compensated by quateiy com- damages, but extends to all cases where the possession has been damages but ^cq^ired through an alleged abuse of a party standing in a fiduciary extends to all relation to the plaintiff (2). cases where ' possession is acquired through abuse of a fiduciary relation. Party privy to 4. Where A., the owner of certain chattels (tea- warrants), pledged dealing with them to B., who was a tea-broker, to secure advances made on his hS'own^not behalf by B. ; and B. afterwards, in his own name, and unknown to permitted to A., repledged the same chattels to C. to secure advances made by assert his own ^ „ title against C. to B., but of which, unknown to C, A. was to have the benefit; by that other. ^^^ ^- having subsequently applied in vain to B. for payment of his advances, threatened' to realize his security by a sale, which, however, he was from time to time induced to postpone by the solicitations of B., and his assurances of speedy payment ; and this was communicated by B. to A., his principal; in a suit by A_ against B. and C, praying to redeem the property in pledge on payment of any balance found due on the account between himself and B., it was held by Lord Chancellor Cottenham, overruling a decision of Vice-Chancellor Sir L. Shadwell, that A. had no equity to restrain C. from proceeding to an immediate sale, for a party claiming a title in himself, but privy to the fact of another dealiog with the property as his owq, will not, in Equity, be permitted to assert his own title against a title created by that other, although he derives no benefit from the transaction (3). (1) Wood V. Bowcliffe, 3 Hare, 304; (2) Wood v. Smvdiffe, 2 Ph. 382; 6 Have, 187 ; 2 Ph. 382. S.C. 3 Hare, 304; 6 Hare, 187. (3) Nkliohon v. Eooper, 4 My. & Or. 179 ; reversing S. C. 2 Jur. 9. ( 355 ) Sect. 7. Fisdures. PaetI. Chaptek II. 1. In Bichardson v. Ardley (1) the Court overruled a demurrer g^ie of fix- to a bill filed by a landlord, alleging that, under an execution *"''e,s re- against his tenant, the sheriff was about to sell all the property on the demised premises, and it appeared by the handbills that it was intended to sell the fixtures on the premises. 2. Trade fixtures may, by contract, be rendered irremovable ; Trade fixtures and where a lease had been made to an oil-refiner of some land, ^^ll ^^ °°^_ " and also the erections and buildings then already erected and '^^'^^^ }^^- ° •' moveable. built, or to be erected and biiilt thereon ;" and the lessee covenanted to deliver up at the end of the term " pumps, pipes, cisterns, and other things which then were, or at any time during the said term shall be, fixed or fastened to the freehold of the premises, or belong thereto ;" the Master of the Eolls, Lord Eomilly, held, that the general words included the trade fixtures of the oil-refinery, and that they were consequently irremoveable by the lessee, and granted an injunction to restrain a purchaser of boilers supported by brick- work from removing them and other trade fixtures (2). 3. Unless the tenant protects himself by a contract giving him Tenant' s fix- a right to take away the tenant's fixtures (in this case gas-fittings, b^removed* shop and other fixtures) after the expiration of the term, either f^®"" s^P"7 °^ ^ . . -^ term, unless by effluxion, or lapse of time, or his own act, or re-entry on for- by special c ouiirfl,cii feiture, he cannot do so, and the Court will restrain their sale or removal (3). 4. Greenhouses built in a garden, and constructed of wooden frames fixed with mortar to foundation- walls of brickwork, were held by Vice-Chancellor Sir W. P. Wood to be fixtures, and not removeable by the occupier who built them ; so a boiler built in the masonry of the greenhouse is also irremoveable, also pits and a propagating-house ; and the Vice-Chancellor granted a perpetual injunction against the removal of these erections, claimed as fix- tures by the plaintiffs, the owners of the freehold, against two of the defendants, trustees under a deed for the creditors of the other (1) 38 L. J. (Ch.) 508. (3) Pugh v. Arton, L. R. 8 Eq. 626 ; (2) Bidder v. Trinidad Petroleum 17 W. R. 984; 38 L. J. (Ch.) 619; Company, 17 W. R. 153. 20 L. T. (N. S.) 865. 2 A 2 356 FIXTUBES. Paet I. defendant, the former occupier of the house and garden, the trus- Chapter II. . . '^ O ' Seot. 7. tees having advertised for sale two greenhouses, the pits or frames, and the heating apparatus ; but the pipes of a heating apparatus, which were connected with the boiler by screws, are removeable (1). But in Syme v. Harvey (2) the Court of Session (Scotland) held, that greenhouses, forcing-pits, and hotbed frames, erected by nursery-gardeners for the purposes of their trade, may, in so far as not consisting of brickwork, be removed by them at the expira- tion of their lease. 5. Where coal and ironworks were demised, together with lands, and mines under other lands not included in the demise, with liberty to the lessees to make and use roads and ways over any of the lands, and to do all such other acts upon the lands as should be necessary for the purposes of the works ; and the lessees cove- nanted to uphold and keep in good repair the furnaces and other works, houses and other buildings, then standing, and which during the term should be erected and built on the demised land, and all other the demised premises, and at the expiration of the term to deliver up the property, and all ways and roads in, upon, or under the same lands, in such good order that the works might be con- tinued by the lessor ; the Court held, that this covenant did not extend to trams fastened to sleepers not affixed to the freehold, which the tenant had placed upon roads for the purpose of using them as tramways, and that the landlord, therefore, was not entitled to an injunction to restrain the tenant from disposing of them during the term (3). 6. Where a lessor during the term enjoins the removal of fix- tures, a reasonable time shall be allowed the lessee, after dissolu- tion, to demand and remove them, though the term expires pending the injunction (4). (1) Jenkins v. Gething, 2 J. & H. (3) Duke of Beaufort v. Bates, 3 De 520. G. F. & J. 381. (2) 24 Sc. Sess. Cas. 202. (4) Bircher v. Parker, 38 Miss. US (Amr.). ( 357 ) Sect. 8. Game. Pabt i. Chapteb II. 1. In Frogley v. Earl Lovelace (1), Viee-Chancellor Sir W. P. Z'^ ~ Wood restrained a landlord by an injunction from interfering with where agree- , .(.1 1--1I. • 1 ™ent not his tenant m the exercise of the exclusive right ol sporting, and under seal, killing game, according to an agreement not imder seal, until a landbrd inter- lease should be executed under seal, according to such agreement, fermg with pursuant to the decree in the cause ; but the Vice-Chancellor said, exercise of that if the agreement had been entered into by a deed — an instru- right of sport- ment under a seal — he should have felt a good deal of difficulty as |^| game^^' to whether he ought not to leave both parties to their rights at s»«™, whe- ^ . . , . theritwilldo Law ; and that Wood v. Leadhitter (2) had decided, that in order to so where the acquire a right such as here claimed by the plaintiff, an instrument ]Z (jeed. under seal is necessary ; and that at Law an instrument purporting to grant such a right, though given for a valuable consideration, is revocable at any time, and without paying back the money ; there- fore that the plaintiff had no remedy at Law until the defendant should have executed a deed containing a proper and legal grant of the exclusive right of sporting in accordance with the terms of the agreement. 2. Deer in a park, when reclaimed, become personal chattels. Deer in a park, and cease to be parcel of the inheritance. Therefore, in a suit by dahneTare incumbrancers of a tenant for life of a deer-park and other pro- P^™™8,1 perty, upon a summons taken out at Chambers, and adjourned into Court, by the remaindermen to obtain a direction that the deer-park should not be let otherwise than as a deer-park, with proper covenants for preserving the deer, the application was refused on evidence that the deer were reclaimed (3). 3. A demise of the exclusive right of sporting over a farm does Demise of not justify the lessee in turning out on it game not bred thereon r^hnrspori- in the ordinary way ; and the Master of the EoUs, Lord Eomilly, i°^ °^*'' * said that he thought he could not prevent the defendant, the lessor, justify turning from reasonably exercising the right of keeping down any excess not bred of rabbits that might have been brought upon his farm, but that * ^'^^°"' . that was not a question which he could determine, and that it must (1) Joh. 333. (2) 13 M. & W. 838. (3) Ford V. Tynte, 2 J. & H. 150. 358 PICTURES— PAINTINGS. Part I. be settled by an action at law after the lease had been executed (1). Sect. 8. This was a bill for specific performance of an agreement for a lease, ~~ and for an injunction to restrain an ejectment, and to restrain the defendant from destroying, or permitting to be destroyed, any game upon the farm. The Master of the Eolls made a decree for specific performance, and restrained the ejectment, but required the plaintiff to give an undertaking not to breed and turn out on the farm rabbits and pheasants bred on other lands. Sect. 9. Pidwres — Paintings. A painter has !• ^* Common Law a painter has, before publication of his before Pfl^li" picture, a right to prevent any person copying it ; and the owner to prevent of the picture who has purchased it from the painter has the same ture, so pur- right ; but after publication that right is lost, but the sale of a samTrighi^ picture is not a publication of the picture (2). the sale of a picture is not a publication. Publication of 2. The publication of a wood-engraving in a magazine, with an w° with '^^^" article describing the picture, is not a publication of the picture desoriptiYe itself (3). article, not "^ ' publication of the picture itself. Nor exhibition 3. The exhibition of a picture at a public exhibition or gallery, gallery, where where copying it would not be permitted, is not a publication of ''ermUted^nor ^^^ picture, nor is the exhibition of the picture for the purpose of exhibition to obtaining subscribers to an engraving of it, a publication (-4) ; and soribers to an where A., the painter of a picture, sold it to B., who, for valuable Purehaser of consideration, agreed to sell to C. the sole right to make and right to make publish an engraving of the picture, and to exhibit it for short au engraving ^ « 7 . and of right periods at any of the principal towns either in Great Britain painting, en- or Ireland, in order that C might obtain subscribers, and other- titled to an^ ^jgg derive a full advantage in the publication and sale of the restrain the engraving ; and the picture having been exhibited for that pur- publioation of ^ j\, j , i • , . ■,. coloured pho- pose, and the respondent arranged in his own studio a group a'eroup^ ° which bore an exact resemblance to the picture, and took photo- arranged to resemble the (-j) Birkheck v. Paget,Z\ Beav. 403. Eep. 121 ; afSrmed on appeal, 10 Ir. lucture. ^2) Turner v. Robinson, 10 Ir. Ch. Ch. Eep. 510. (3) lb. (4) lb. STOCK— CONSOLS. 359 graphs for the stereoscope (coloured so as to correspond with the Paet i. picture), which he published and sold, the Court of Chancery in sect. 9. Ireland held that C. was entitled to an injunction to restrain the publication and sale of the photographs if the picture had not previously been published ; but, it appearing that the picture had been previously exhibited at the Eoyal Academy, London, and at the Manchester Exhibition of 1857, the Court referred it to the Master to inquire whether there were rules, resolutions, by-laws or regulations to prevent the taking of copies, sketches, or drawings of paintings or works of art sent there for exhibition (1). Sect. 10. Stock — Consols. 1. Where an old woman had been induced, without considera- Upon trans- tion, to transfer her stock into the name of another person, who, by -^thout oon- his answer, swore that there had been a gift of it to him subject sideration, by ' o J an old woman, to a trust for the transferror for life ; the Master of the Eolls (Lord alleged to be .. . i-iiii 1 ^ gif' subject Langdale) continued an injunction which had been granted to re- to a life strain the transfer and receipt of the dividends, saying that the tranaferiOT circumstances of the case were so fraught with suspicion that he C°irt re- '^ ■"• _ strained trana- could not bring himself to allow the defendant that the injunction fer and receipt obtained might be dissolved altogether, or that the defendant pending suit, might have the income pending the suit (2). 2. Where a transfer is about to be made of stock to wrong Transfer of persons through mistake, the Court will not grant an injunction Lreonbymi^ ex parte against the defendant to restrain the transfer, unless the ^^^^.' °9* ^^' plaintiff swears that he believes the defendant will avail himself of i^nless, upon the error, and will refuse to make a retransfer (3). belief defen- 3. The remedies given by the 4th and 5th sections of 5 Vict. f^^eZ^^ ""*' c. 5, are in substitution for the writ of distringas under the former i^etransfer. practice in the Exchequer; and therefore, where a party had put a distringas upon a sum of stock before the passing of that Act, and that distringas had been removed upon the usual notice, the Court held that it was not competent to him, after the passing of the Act, (1) Turner v. Edbinson, 10 Ir. Ch. (2) Custance v. Cunningham, 13 Eep. 121 ; affirmed on appeal, 10 Ir. Beav. 363. Ch. Eep. 510. • (3) Arhwright v. Gryles, 13 L. J. (N. S.) Ch. 303. 360 STOCK-CONSOLS. Part I. to apply for an injunction under the 4th section of that Act (1). Sect. 10. The Lord Chancellor, in Ex parte Marquis of Hertford (2), said that he had not intended to lay down any such rule as that a party who had sued out a distrmgas under the 5th section of the statute could not afterwards obtain an injunction under the 4th section, having merely decided in Ex parte Amyot that a party who had exhausted his remedy under the old practice in the Exchequer could not afterwards avail himself of the remedies given by the then recent statute (the 5 Viet. c. 5) ; and the Lord Chancellor said he desired that it might not be understood to be his opinion that a party was precluded, by suing out a distringas under the 5th section, from afterwards applying for an injunction under the 4th section. 4. In Lord Chedworth v. Edwards (3), Lord Chancellor Eldon granted an injunction until answer, restraining a transfer of stock standing in the name of a steward, on strong evidence by aflBdavit that it was (though it may have been mixed with his own) the produce of his master's property, rents, &c., received for many years without account ; and Lord Eldon said that he did less mischief by iixing the injunction upon the whole, till the defendant informed him what was his master's, than by not iixing the injunction upon any part, giving him the opportunity of doing enormous injustice ; but upon reconsideration refused an injunction as to money at his bankers in his name, as that payment was made two years pre- viously, and that it was too much to infer that it was the same money unconverted. 5. In King v. King (4), the Court granted an injunction to restrain the transfer of stock or dividends standing in the name of the testator, or in the defendant's own name, belonging to the testator, and appointed a receiver to collect tlie outstanding property pendente lite in the Ecclesiastical Court upon different wills of the testator. 6. Where a widow (whose husband had died leaving children) was, as administratrix, possessed of property of the intestate, consist- ing of Bank Stock, a motion to restrain her from disposing of it, and to pay the same into Court, was refused ; but, being clearly entitled to her third, she was ordered to pay two-thirds into Court (5). (1) E.r parte Amyot, 1 Ph. 130. (2) 1 Ph. 129. (3) 8 A^es. 40. (4) d Vcs. 172. (5) Rugers v. Sogers, 1 Anstr. 174. ( 361 ) Sect. 11. Policies. partI. Chap. II. 1. A policy-holder, by whose policy the funds of a company were made liable to pay the sum insured, and shares of profit by way of bonus, was held entitled to an injunction to restrain the company from transferring its business and assets to another com- pany contrary to the provisions of the deed of settlement, and without making provision out of its own assets for payment of the policy (1). 2. Where the defendant, a creditor, had agreed that judgment should not be entered up against the plaintiff, his debtor, upon a warrant of attorney, unless default should be made in payment of the premiums of a policy of life insurance, which was effected to secure the debt, and that payment of the debt should not be required so long as the policy was kept on foot, and the plaintiff permitted the time for payment of the premium to expire, and four days afterwards the defendant paid the premium and procured the policy to be revived ; the Court refused to relieve the plaintiff against the consequences of his default in payment of the premium, and dismissed a bill brought by him to restrain the defendant from suing out execution against the plaintiff on the judgment (2). 3. Where J. H., having effected a policy of insurance on his own life, had assigned it to the defendant, T. M., in trust for J. M., a minor, but the deed contained no exonerating clause or declaration that the trustees' receipt should be a good discharge, and the insurance company had notice of the trust, and after the death of J. H. refused to pay T. M., who was also the executor of J. H., on the grounds that there was no exonerating clause or declaration that T. M.'s receipt should be a good discharge, and also, that he had attempted to obtain the money to apply it to his own uses, in breach of the trust ; on an injunction bill filed by the company against T. M. and J. M., to restrain proceedings at Law by T. M., alleging those facts, and offering to bring the money into Court, it was held, on the motion, that though the bill might probably be dismissed, yet as there was a question for the hearing, the Court (1) Kearns v. Leaf, Aldebert v. (2) Winthrop v. Murray, 8 Hare, Keai-ns, 1 H. & M. 681. 214. 362 POLICIES. Part I. would not anticipate the decision of the cause, but would grant the Chapter II. . . , . ,, . Sect. 11. injunction (1), Concealment ^" ^^®''® ^ merchant, having a doubtful account of his ship, of ship's which was at sea, viz. that a ship described like his was taken, danger on . . , . „ . , . insurance, insured her, without giving any information to the insurers of what delivered up. ^^ ^^^ heard, either as to the hazard, or circumstances which might induce him to believe that his ship was in great danger, if not actually lost ; upon a bill by the insurers for an injunction, and to be relieved against the insurance as fraudulent. Lord Chancellor Macclesfield, — observing that the insured had not dealt fairly with the insurers in this case, and that he ought to have disclosed to them what intelligence he had of the ship being in danger, which might have induced him, at least, to fear that it was lost, though he had no certain account of it; and that if this had been discovered, it was impossible to think that the insurers would have insured the ship at so small a premium as they had done, but either would not have insured at all, or would have insisted on a larger premium, so that the concealing of this intelligence was a fraud : — decreed the policy to be delivered up with costs, but the premium to be paid back, and allowed out of the costs (2). 5. Where the parties to a suit in Equity restrained an insurance company to retain in their possession, during the progress of the suit, moneys due by the company to one of the parties, the Court (Ire- land), upon an appeal, held, that the company was merely acting as stakeholders, and in such capacity was not liable to pay interest upon the said sums while so remaining in their possession (3). 6. Where plaintiffs, underwriters, having executed to the defen- dants, iron merchants, a policy of a marine insurance on a cargo which suffered loss, filed a bill for the rectification of the policy, so as to make it conformable to that which they said was the real contract between the agents, in proof of which they produced in evidence the slip which was signed by their agent when presented at Lloyd's by a clerk of the defendants' insurance broker, but the defendants denied that they ever entered, or intended to enter, into any contract other than that expressed by the policy ; Vice-Chan- (1) Fernie v. Maguire, 6 Ir. Eq. (2) Be Costa v. Scandret, 2 P. Wms. Kep. 137. 170. (3) Farmer v. Farmer, 15 W. E. 371. DEEDS. 363 cellor Sir W. M. James held, that, as the slip formed no contract, Paet I. and there was no binding agreement between the parties until the seois. il, 12. policy was signed, and the premium paid, the bill for the rectifica- tion of, and^for an injunction to restrain actions upon, the policy, must be dismissed with costs (1). Sect. 12. Deeds. 1. Where a conveyance executed for the purpose of giving the where deeda grantee, his younger son, a colourable qualification to kill game, ^ot™parties remained without being made use of in the grantor's hands, and ^itii fraudu- ° ° . lent intent, after his death in his eldest son's hands, and the grantee, by deceit, no relief to r, J i,i. • J • r -J. J J J J. either, nemile. aiterwards obtained possession oi it, and proceeded to recover pos- ' session by ejectment ; Lord Chancellor Eldon, upon a bill brought to obtain the delivery up of the deeds, and to restrain the action, said that his idea was, that the bill ought to have been dismissed in the first instance, and that if it came on to be heard on appeal, it would be very difficult to persuade him that the bill ought to have been entertained, and that the inclination of his opinion was that it was not a case in which either party had a right to apply to a Court of Equity (2). 2. No injunction will be granted until an instrument is pro- duced, which, being lost, may not be capable ever to be produced ; but the import of an instrument lost by negligence is to be taken most strongly against the negligent party, even although free from suspicion of spoliation (3). Sect. 13. Bills of Exchange — I. 0. U.s — Promissory Notes. 1. Where a bill-discounter obtained from a young man atBiu-dis- college bills of exchange, I. O. U.'s, &c., for money advanced at co'^^ter only •' allowed yiere) high rates of interest; and subsequently a document, purporting to money be an account of the advances, but being only a list of such bills of fs^peroeiS! exchange, &c., was sent to the young man, the Lords Justices, S young (1) Mackenzie r. Coulson,L.'R. 8 Eci. (2) Brackmhury v. Br ackenburt/, college. 368. 2 J. & W. 391. (3) Poiuer V. Shell, i Moll. 296. 364 BILLS OP EXCHANGE— I.O.U.'S—PEOMISSOEY NOTES, Pakt I. affirming a decision of Vice-Chancellor Sir J. Stuart, held, that a Sect. 13. " letter signed by him acknowledging that the account between ~ himself and the moneylender had been settled was not binding on him ; and the Court ordered an account to be taken of the moneys actually advanced, with interest at £5 per cent., and that when the amount found to be due should be paid, the securities should be delivered up and cancelled (1). 2. It is a fraud on the bankrupt laws for any creditor secretly to bargain for or obtain a larger dividend than the other creditors ; and this principle applies to a secret bargain after the bankruptcy, and before any composition under the arrangement clauses was agreed to ; and on a bill by a bankrupt praying that it might be declared that the consideration for a certain bill of exchange for £394 14s. 8d,, (namely a bill to secure a larger dividend than was received by the other creditors under the arrangement clauses, by private agreement made before the composition under the arrange- ment clauses was made) accepted by the plaintiff was illegal, and that such bill was void in the hands of the defendants, and that the defendants might be ordered to enter up satisfaction of the judgment for £408 lis. which had been signed by them ; and in the third paragraph praying that the defendants might be restrained from taking the plaintiff in execution under the judgment, or from taking any other proceedings against the plaintiff's person or property under the judgment ; Vice-Chancellor Sir J. Stuart decreed the bill of exchange to be delivered up, and declared that the bill was illegal and void in the hands of the defendants, and ordered them to enter up satisfaction on the judgment, and ordered the injunction to be made perpetual in the terms of the third paragraph of the prayer, and the costs to be paid by the defen- dants (2). SurgeoA 3. In BiUage v. Southee (3) relief, on the principle of correcting (here) from abuses of Confidence, was given against the liability of the maker recovering on ^j g^ promissory note, taken from a poor patient on the occasion of note obtained a change in his position in life, by his medical attendant, without confidence. any account having been rendered, and for an amount beyond (1) Croft V. Graham, 9 Jur. (N. S.) (3) 9 Hare, 534 ; S. C. nom. BiUing 1032 ; 9 L. T. (N. S.) 589. v. Southee, 21 L. J. (N. S.) Ch. 472 ; (2) Mare v. Sandford, 1 Giff. 288. 1(3 Jur. 188. BILLS OF EXCHANGE— LO.U.'S-PEOMISSOET NOTES. 365 what was due for his attendance on the most extravagant scale of Part i. charges. If the right to a benefit taken by a person in a con- seot. 13. fidential situation be questioned in Equity, and it is sought to be sustained as an exercise of liberality, it must be shewn that it was the intention of the party from whom the benefit emanated to be liberal; but intention imports knowledge, and liberality imports the absence of influence, and the onus of establishing a gift in such cir- cumstances rests with the party who has received it. In this case the promissory note having been given under undue influence, the sur- geon was restrained from recovering the whole amount, but the note was retained as a security for what should prove to be justly due. 4. Where a bill of exchange has been negotiated by means of a forgery of the name of the payee as indorser, a Court of Equity will restrain even a bond fide holder of the bill from suing the acceptor, and will direct the forged instrument to be delivered up to be cancelled (1). 5. Courts of Equity have a concurrent jurisdiction with Courts of Law in relieving against promissory notes, taken when over- due (2). The bill, in this case, alleged that S. had agreed to ad- vance £8000 to the plaintiff, but that in the events nothing had been advanced on the note given for the sum, and that the note had inadvertently been left in S.'s hands, who had after it became due delivered it to the defendant as a security for a debt to a greater amount due from him to the defendant ; and the Vice- Chancellor granted an injimction restraining an action commenced on the note. But this order was reversed by Lord Chancellor Lyndhurst (3) ; the Lord Chancellor observing that if the facts alleged were true, the equities disclosed would furnish a clear deieace at Law, in which the question could be tried in a much more satisfactory manner. 6. In Hood V. Aston {4:), an injunction was granted ex parte to Negotiation of restrain the negotiation of a bill of exchange, by a holder who had ^^^°^ given valuable consideration for it, but who had notice that it had stained by been improperly accepted by a partner of the plaintiff in the notic^e that it partnership's name. improperly accepted by a partner of^plaintiff. (1) Esdaile v. La Nauze, 1 Y. & C. (2) Eodgsm v. Murrny, 'i Sim. 515. 394 ; S. 0. mom. Esdaile v. Lanoge, (.S) lb, 3 Sim. 283. 4 L. J. (N. 8.) Ex. Eq. 46. (4) 1 Russ. 412. 3()6 BILLS OF EXCHANGE— I.O.U.'S—PEOMISSOEY NOTES. PaetI. 7. In Patrick v. Harrison (1), the Court granted an injunction Sect. 13. to restrain a defendant from negotiating a bill of exchange given Negotiation of ^°'' goo'^s not delivered, the injunction being issued on certificate bill of ex- of bill filed, and to be served with the subpoena. change for goods not delivered, restrained. Bill to secure 8. A bill of exchange given to secure procuration money agreed money for a ^o be given to the colonel of a regiment for a commission is void, Toid°anT" " ^"^^ *'^® Court will interfere even after the money is in the hands Court inter- of the sheriff on an execution at Law (2). feres even after money is in sheriff's hands. Negotiation of 9. Where the plaintiff had given the defendant a note for under- riage brocage, taking to procure him a marriage, and the fact was supported by restrained. affidavit, the Court made an order upon the defendant to keep the note in his possession, and not assign or indorse it, but would not extend the injunction to prevent his proceeding at Law (3) ; and where a bill of exchange had been given on marriage bro- cage consideration, the Court granted an injunction to prevent proceedings on it in the hands of an indorsee under the circum- stances (4). 10. The Court will grant an injunction to restrain the negotia- tion of bills void in their creation (5). 11. The result of an examination of the authorities seems to be, that if a party has wrongfully obtained possession of a bill of exchange, although under circumstances which would give a com- plete defence at Law, Equity will nevertheless interfere, if from lapse of time or death of witnesses such defence is hkely to fail ; but that if the objection, being apparent on the face of the instru- ment, must always be open to the defendant whenever such action be brought against him, he is not entitled to apply to a Court of Equity for relief. Therefore, where A. had possession of a bill of exchange accepted by B., which, for reasons dehors the instrument, he could not enforce against B. in an action ; Baron Alderson held, nevertheless, that B. had no equity to have the biU delivered up to be cancelled, unless he could shew that A. had the wi-ongful possession of it. And the cases of fraud where a bill has been (1) 3 Bro. C. C. 476. (3) Smith v. Ayhwdl, 3 Atk. 566. (2) Whillingham v. Burgoyne, 3 (4) Coiion-v. Catlyn, 2Eq. Ahr. 525. Aiistr. 900. (r.) Hoyd v. Ourdon, 2 Sw. 180. BILLS OP EXCHANGE— I.O.U.'S—PEOMISSOET NOTES. 367 ordered to be given up, are confined to those where the possession, Past i. but for the fraud, would be that of the plaintiff in Equity (1). sbot. 13. " 12. Where an overdue bill or note is indorsed after action brought, the indorsee with notice of the action has no right of action upon it (2). 13. Under an assignment of a ship and her present and future cargo, freight, and earnings, by the owner, for securing to the assignees all naoney which they had advanced, or might become liable to pay, on account of the vessel and her cargo, which they had furnished the means of purchasing, the assignees, who were also the ship's agents, were held entitled to retain a bill which was given for the purchase of part of the homeward cargo, and was remitted but not indorsed to them by the owner, notwithstanding he denied that it was remitted in payment, and stated that they had not paid, and, contrary to an express understanding, had left him per- sonally liable to some of the debts incurred in fitting-out the vessel ; and an injunction which had been obtained by the assignees, restrain- ing an action of trover for the bill, was continued until the hearing (3). 14. Where the acceptor of a bill of exchange, who had, by the hands of the drawer, as his agent, paid the amount of the bill after it became due to an indorsee for value, without procuring it to be delivered up, filed his bill against such indorsee for value, and a subsequent indorsee, charging that the indorsee to whom the pay- ment had been made had afterwards indorsed the bill to the other defendant without consideration, in order to recover the money from the plaintiff a second time, and praying that an action com- menced against him for the amount might be restrained, and the bill be delivered up to be cancelled; the Court overruled a demurrer for want of the drawer as a party to the suit ; for, taking the facts alleged in bill to be true, the plaintiff was entitled to relief without the presence of the drawer upon the record (4). 15. Vice-Chancellor Sir L. Shadwell allowed a demurrer to a bill for the delivery up of a bill of exchange the amount of which the defendant had recovered at Law, and had received from the plaintiff. The Viee-Chancellor said that he never remembered (1) Jones V. Lane, 3 T. &: Coll. 281. (3) Gurtis v. Auher, 1 Jao. & W. (2) lb. 526. (4) Ear'/e v. ffolf, 5 Hare, 180. 3()8 BILLS OP EXCHANGE— I.O.U.'S-PEOMISSOET NOTES. Pakt I. any instance of a bill being filed, to have a bond or bill of exchange Chapter [[. , ^. • , , , , i -, • ■, Seot. 13. aeiivered up, after an action had been brought and judgment recovered on it at Law (1). 16. Sernhle, where the parties intend that a promissory note shall be joint and several, but, through ignorance, it is expressed to be joint only, a Court of Equity will relieve as well against the surety as the principal (2). But the judgment of the Master of the Eolls was reversed by the Lord Chancellor (3) ; the Lord Chancellor observing, that he saw no ground for saying that anything more was intended than that there should be a joint liability, and that he could not alter the instrument on conjecture. 17. The indorsee of a bill of exchange which has been lost, has a remedy against the acceptor by a bill in Equity, and that although he might have recovered on the bill of exchange at Law, and the bill were a mere accommodation bill, and the plaintiff might have applied before, or though the drawer has since become insolvent ; nor is the plaintiff in such a case bound to file his bill within any particular time (4) ; and in a bill by the indorsee of a bill of exchange which has been lost against the acceptor, it is not necessary to make the drawer a party (5). 18. In Stevenson v. Anderson (6) a bill of interpleader was sus- tained upon bills of exchange received by the plaintiff, as agent to procure payment for his principal in Scotland, to whom they were remitted against an order for goods, pursued in an action of trover by the party who so remitted them, and by attachment in Scotland by a creditor of that party. Court rniieves 19. In Dyer V. Tymewell (7) the Court granted relief against a bill of exchange^ of exchange, said to be for value received, but gained by fraud, gamed by ^nd for a fictitious consideration : and in Robinson v. Cox (8) a note iraud, or upon _ _ ^ -' _ fictitious con- given ex turpi causa was set aside, and the purchase of a share in ex turpi causa, mines which proved to be a bubble, or money paid for effecting mines or ille- illegal assurances, are not such considerations as will support a gal assui'- \){\\ of exchange in Equity (9) ; and in Bishop of Winchester v. (1) Thrdfall v. Ltmt, 7 Sim. 627. (fi) 2 Ves. & B. 407. (2) Bawstone v. Parr, 3 Russ. 424. (7) 2 Yern. 122 ; 2 Preem. 112. (3) lb. 539. (B) 9 Mod. 263. (4) Vavies v. Dodd, 4 Price, 176. (9) Broume v. Marsh, Gilb. Eq. Rep. (■""j) lb. I.''i4; Ex parte Mather, 3 Yes. '613. BILLS OF EXCHANGE-LO.U.'S— PEOMISSOEY NOTES. 369 Fournier (1) a promissory note, suspicious in itself under the Part I. circumstances, and the admitted object of it being an improper seot. is. ' one, even if the note were actually genuine, was decreed, at the " instance of the person alleged to have given it, to be deposited with the registrar of the Court in the first instance, with a declara- tion that the plaintiff was entitled to be relieved against it, with- out preventing the defendant from bringing an action on it within a reasonable time, and if delay in so doing, then to be delivered up. 20. Where a bill stated numerous transactions between the Court relieves plaintiff and C, and that the plaintiff had given him a bill of ex- of exchange change for £1500 without consideration, which he had indorsed to consideration* M., who held it merely as a trustee, and had recently commenced indorsed to . •' . _ •' holder as a an action upon it, and the bill prayed for an injunction, and for trustee; an account ; a demurrer by M., for want of equity and for multi- fariousness, was overruled (2). 21. In Wynne v. Callander (3) bills of exchange made in France Or for gam- on French stamps, and substituted in France for English bills of ^^^°^ ^^^^^' exchange, which were originally given for a gambling debt, were ordered to be delivered up; but the Master of the Eolls, Lord Gifford, said that, considering that the plaintiff was partieeps criminis, and that the transaction took place in 1819 (the bill in Chancery was filed in 1824), and that the bills had been renewed from time to time, he ought not to give the costs of the suit, and under the old practice it was held that the Court would grant an injunction to prevent the negotiation of a note obtained at play upon affidavit before service of subpoena (4). 22. Where the plaintiff prayed a discovery, injunction, and if right clear delivery of a bill of exchange, upon the answers and evidence the d^i™ ^^^^of right being clear, the Court refused an opportunity of trying it at ^^ ordered. Law, and decreed an immediate delivery (5). 23. Where an action has been commenced by an indorsee of a Oourt wOl note against the maker, which is impeached on the OTound of ''^^*''^'°' ™*^l °. n-i ^ ^ "^ answer or fur- fraud, and a distinct allegation that such note was not to be *^^r order, negotiated, but to be an item in the further settling of accounts upon" a judg- ment upon a (1) 2 Ves. Sen. 445. (4) v. Blackwood, 3 Anstr. ^'^li'^Peaclied (2) Knill V. Ohadwich, 16 L, J. 35L (N.S.) Ch. 410. (5) Newman v. Milner, 2 Ves. J. (3) 1 Euss. 293. 483. 2 B 370 BILLS OF EXOHANGE-I.O.U.'S— PEOmSSOEY NOTES. Paet I. between the parties, and also an allegation that the indorsee had Sect. 13. received such note with notice of the terms on which it was given, for fraud— and *^® Coiirt will restrain the indorsee and his alleged agent from alleging issuing execution on any judgment he may obtain in such action indorsee. until answer or further order (1). No relief 24. "Where abill of exchange given for the price of a guaranteed negcrtfated ''^ article, which turned out to be worthless, was negotiated by the before notice ggUer b'efore notice of the failure of consideration, Vice-Chancellor of failure of consideration gir W. P. Wood refused relief by way of indemnity for the losses price of a in respect of the bill, after notice that the bill had been parted arScie'fwhich '"'ith ; the remedy of the purchaser being at Law, it being simply a turned out gg^gg £qj, g^jj action for damages for a breach of warranty, and there worthless). ° . . being no signs, in the bill filed, of a charge of having knowingly sold a worthless engine, the consideration for the biU of exchange (2). 25. Where A. filed a bill in Equity against B., for the cancella- tion of bills of exchange drawn by B. and accepted by A. in part performance of a contract of which B. failed to perform his part, and for an injunction to restrain B. from parting with or suing on the bills, and pending the suit A. commenced an action against B. for damages for breach of contract ; the Master of the Eolls, Lord Eomilly, held that the suit and action were not for the same matter, and an order to elect obtained by B. was discharged (3). 26. Where a bank presented to a firm of merchants bills of exchange for acceptance, and to the bills were attached memo- randa stating that the bank held bills of lading for a specified quantity of cotton, and the firm, without asking to see the biUs of lading, accepted the bills of exchange and retired them ; and the bank and the firm had been in the habit of transacting business together, and had confidence in each other ; and the biUs of lading turned out to be forgeries, but the bank were ignorant of it, and acted in perfect good faith : on a bill filed by the firm seeking to obtain repayment of the money, and asking for an injunction to restrain the bank from making any payment of the money incon- sistent with the plaintifi"s' claim ; Vice-Chancellor Sir R. Malins held, that the firm would have accepted the bills of exchange (1) Bainbridge v. Hemingway, 12 (2) JacJcson v. Shanks, 15 W. R. 55 ; L. T. (N.S.) 74. 12 Jur. (N.S.)917. (3) Anglo- Danuhian Company v. Bogerson, L. R. 4 Bq. 3. BILLS OF EXCHANGE— LO.U.'S—PEOMISSOEY NOTES. 371 whether they had seen the bills of lading or not, and that there Part i. had not been such representation by the bank as to the genuine- seot. 13. ' ness of the bills of lading as entitled the plaintiffs to recover (1). 27. Where T. purchased from the New Orleans Bank a bill drawn by them upon the Bank of Liverpool, and was told by the manager of the New Orleans Bank, at the time of the purchase, that the Liverpool Bank had, or would have, funds of the New Orleans Bank sufficient and applicable to meet the bill, 'and ap- propriated for the purpose ; and before the bill was presented for acceptance the New Orleans Bank stopped payment, and the Liverpool Bank declined to accept the bill on presentation or to pay it at maturity, on the ground that though they had sufficient funds of the New Orleans Bank to meet the bill, none of such funds were specifically appropriated to the payment of it, and the course of business between the two banks was for the New Orleans Bank to remit to the Liverpool Bank bills for collection, and to draw bills against the remittances, taking care to keep them always in funds to meet the bills drawn upon them ; the Court of Appeal (Lord Chancellor Hatherley and Lord Justice James) held — revers- ing a decision of Vice-Chancellor Sir J. Stuart — that there was no specific appropriation of the funds of the New Orleans Bank in the hands of the Bank of Liverpool to meet the bill, and that the statement of the manager was no more than a correct statement of the course of business between the two banks (2). 28. Where an absolute note was given, but, from a memorandum Note absolute made at the time, and accompanying circumstances, it appeared contingenrin that the note was to be collected only on a contingency which had ^*°'.' '^^^i^'^^'i not occurred ; it was held, that Equity ought to grant relief (3). 29. Equity will, in general, enjoin the transfer of a specific Transfer of thing, which, if transferred, will be irretrievably lost ; as in the gefurities*^ case of negotiable securities and stocks (4). So, where a person restrained, . ... \ / ' r where irre- has negotiable securities in his possession under a void contract, trievable loss would follow. Negotiation of securities under a void contract, restrained. (1) Leather v. Simpson, 19 W. R. (3) Clayton v. Lyle, 2 Jones, Eq. 431. 188 (Amr.) (2) Thompson v. Simpson, L. R. 5 (4) Oshorn v. Bank, dtc, 9 Wheat. Cb. 659 ; 39 L. J. (Oh.) 857 ; 18 W. E. 738 (Amr.) 1090. 2 B 2 372 BONDS. Part I. and is not of sufficient responsibility to answer for the value Chapter H- , „ , , . , , . . Sect. 13. thereof, the negotiation of them may be restramed by mjune- A State Court ^ion (1). So a State Court of Chancery (U. S.) has jurisdiction to "aiPr^T^P grant an injunction at the suit of another State to restrain the transfer of transfer, within the former State, of negotiable securities issued issued by by the latter (2). The neeotia- ^^' W^^^® ^ ^i^^ o'" ^ote has been obtained fraudulently, or tion of bills upon an illegal transaction, as at play, upon a bill filed charging tained fraud- these facts, supported by an affidavit, an injunction to prevent the upoaanillegal negotiating or parting with the bill or note will be granted im- tiuQsaction^, as mediately upon filing the bill, and even before the service of the restrained. subpoena to appear (3). So, in Louisiana (U.S.), if the plaintiff conditionally came improperly into possession of a* note which was left con- person re"*^ ditionally with a third person, the defendant's remedy is by injunc- lieved against tion, not by an appeal from the order of seizure and sale (4). in Equity, ' J rr V / where obtained by a party improperly. Belief against 31. Chancery will take jurisdiction and grant relief where a destroyed pro- promissory note has been lost or destroyed, if the complainant upon tende'/of tenders adequate security against loss to the defendant ; otherwise adequate he will be turned over to the Courts of Law (5). security. 32. The drawer of a bill cannot enjoin an innocent holder from collecting it of an accommodation acceptor, on the ground of fraud in the payee (6). Sect. 14. Bonds. 1 . Where E. purchased from 0. a strip of land to which T. had set up a claim, and to secure E. from proceedings at the suit of T., a bond was executed by 0. in an amount double that of the pur- chase-money ; and the condition of the bond was declared to be, that if after twelve months had expired from the possession of the property being given to the vendee, there should not be any suit (1) Delafleld v. Illinois, 2 Hill. 159 (4) Weerns v. Vmtress, 14 La. An. (Amr.) 267 (Amr.) (2) Delafleld v. Illinois, 26 Wend, (5) Moss v. Wright, 12 Geo. 507 192 (Amr.) (Amr.) (3) 4 Bouv. Inst. 128 (Amr.) (6) Winn v. Wilkins, 35 Miss. 186 (Amr.) BONDS. 373 or other proceedinff at Law or in Equity pending against 0., PabtI. Chapter II wherehy the title to the land of E. might be prejudicially affected, seot. u. ' or if 0. should, on the 21st of July, 1853, pay to E. £2000 with interest at 6 per cent,, the obligation should be void ; and T. com- menced proceedings to obtain security upon the land before one year had expired, and 0. failed to pay the £2000 on the 21st of July, 1853, but offered, a few weeks later, to do so, and this offer was rejected ; and T., being declared entitled to an equitable mortgage upon the land, E. paid off her claims to an amount equal to that secured by the bond ; the Privy Council — affirming the decision of the Court of Appeal, which had affirmed that of the Court below — held, upon a bill to restrain an action, and execution on, and deli- very up of the bond, upon payment of the £2000 and interest, with costs of action, that he was entitled to enforce the bond against 0. and his representatives to its full amount (1). 2. Where a plaintiff had entered into an agreement with C, Assignee of a who represented himself to be a solicitor acting for the owner of secure ante- an estate, for the purchase of the estate, the purchase-money to be *'^t;k"*t'^^''t' g paid by means of certain bonds ; and in pursuance of the condi- of fraud by tions of sale one of the bonds was assigned to C. as deposit, and restrained the remaining bonds were to be transferred upon the completion of iJiTit^^'^" the sale, but the contract turned out to be a fraud on the part of C, and was never carried out ; and in the meantime C. assigned the bond to the defendant to secure an antecedent debt, and the defendant took it without notice of the fraud ; the Court refused a motion to obtain the delivery up of the bond, and to restrain the defendant from assigning it (2). 8. The law does not favour general liens, and a general lien The law does can only be claimed as arising from dealings in a particular trade general'Kens, or line of business — such as wharfingers, factors, and bankers — in ^^^ *''^y ''*" _ only arise which the existence of a general lien has been judicially acknow- where their ledged, or in other trades where there is express evidence ofbeenjudi- custom. And where G., a firm of London factors and merchants, ledged^l^""''" were agents of L., a Hamburg firm ; and Gr. purchased foreign particular tr&cLGSj otC, or bonds for L., to be held at L. s disposal, and drew bills upon L. to where there balance the transaction ; and, in reply to a letter advising these evidence of drafts, L. requested Gr. to keep the bonds in sate custodv, and to ""^*°™- (1) Osiome v. Kales, 12 W. R. 654, (2) Ashwiny. Burton, 9 Jur, (N.S.) 319. 374 BONDS. Part I. give L. the numbers of the same until the bills were honoured, Sect. 14. and after the bills were duly honoured, G. stopped payment ; the Lord Chancellor Campbell, upon a bill filed to recover possession of, and to restrain the selling and disposing of the bonds, which the defendants retained on the ground that they had a lien on them for the general balance of their account with the Hamburg firm, held — reversing a decision of the Master of the Rolls, Sir J. Eomilly, dismissing the plaintifif's bill — that G. had no lien upon the bonds for a general balance (1). Transferable 4. Where the defendant had commissioned a stockbroker to deposited as a Obtain a loan on security of bonds, transferable by delivery, seeunty for a ^iiich he deposited with him for that purpose, and shortly after- owner— and wards the broker obtained the loan from the plaintifi', a member owner upon of the Stock Exchange, and the defendant subsequently gave his tharcheques" b''other the money to redeem the bonds, but he applied a portion given to Qf j^ ^q }^{g q^^q ^gg ^j^j .^^^s Unable to redeem the bonds, of which redeem the bonds would fact he informed the defendant, and it was then agreed that the are charge- defendant should advance the broker a sufficient sum, by way of Sn ^^^'^ ^^^ ^°*^' *° enable him to redeem the bonds ; and that if the broker redeemed the bonds upon a particular day, the defendant would call and give him a cheque for the amounts to be advanced, and the broker gave the plaintiff his crossed cheque (upon the fciith and in the belief that it would be honoured by means of the cheque to be given by the defendant), and the bonds were delivered up to him, and they were afterwards handed over to the defendant, but the defendant refused to give his cheque, and the broker's cheque was dishonoured ; the Master of the Rolls, Lord Romilly, upon a bill filed for a declaration that the plaintiff was entitled to a charge upon the bonds, and for an injunction to restrain the defendant from parting with the bonds, held that the defend- ant was bound to make good to the plaintiff the representation which he had made to the broker, and upon the faith of which he had given his cheque to the plaintiff; and an account was decreed of what was due, and the defendant was directed to pay to the plaintiff the amount due upon the bonds, or, in default, the secu- rities to be delivered up to the plaintiff ; and in the meantime the defendant was restrained from iiartiug with the bonds, and ordered (1) Bock V. GoiiiSicn, 7 Jur. (KS ) bl ; W. E. 209. BONDS. 375 to pay the costs of the suit ; and the Master of the EoUs held, Paet I. ™. .1 <. -1 • • I ■ J Chai'ter II. that the plaintiff was not guilty of negligence in taking a crossed seot. 14. cheque, in accordance with the practice of the Stock Exchange, and delivering up the bonds, without first inquiring whether the broker had assets to meet the cheque (1). 5. In Fox V. Wright (2) the Court relieved against post-obit Foat-dbit bonds of a young man, put up to sale by him without reserve. young man ^ •without reserve, relieved against. 6. In Barker v. Vansommer (3) the Court ordered a bond given Bonds for for silks, taken up in order to sell and to raise money, to be deli" money, oharge- vered up upon payment of the sum really raised ; Lord Chancellor ^^ "a/s^d ^*^ Thurlow said, that he took it as an advancement of goods, instead of money, to supply the young man's necessities. 7. To set aside bargains at Law, fraud must be proved, but Equity re- ° '■ lieves against Equity relieves against presumptive fraud (4) ; and where S., a presumptive man of intemperate habits, aged thirty, in order to pay trades- ^ mst-obit men's biUs and other debts, for £5000 in hand, bound himself in ^°^^ gi'^en by a man of the penalty of £20,000 to pay £10,000 upon the death of M., a intemperate lady aged seventy-eight, if he survived her, and M. died aged neved against, eighty-four, and S. survived her two years ; and at M.'s death a ^^^s T^pon an o J ' J 7 unoonscion- new bond was entered into, with the same penalty, for the payment able bargain „ nt r\ nnr\ 1 • , in ,1 n and usurious. 01 £10,000 and interest, and b. executed a warrant of attorney to empower judgment to be recorded against him in the King's Bench, which was done accordingly, and £2000 were paid by S. in about five months from the death of M. ; and before his death S. devised the residue of his personal estate, after paying debts, &c., to his son, a minor ; and the plaintiffs, his guardians and executors in trust, brought a biU to be relieved against the defendant's demand as an unconscionable bargain and usurious contract, and for an injunction to restrain proceedings at Law until the hearing of the cause ; the Court relieved the plaintiffs against the penalty and judgment, by directing the defendant to deliver up the second bond to be cancelled, and to acknowledge satisfaction on the judg- ment, upon being paid by plaintiffs what should be due at Law, but would not give the defendant costs against the plaintiff, as they (1) Mocatta v. Bell, 24 Beav. ^585 ; (3) 1 Bro. C. G. 149. 27 L. J. (Oh.) 237 ; 4 Jur. (N.S.) 77. (4) Earl of Chesterfield v. Janssev, (2) 6 Madd. 111. 1 Atk. 352. 376 BONDS. Part I. had prdbalilis causa litigand/i, and as trustees greatly to be com- Seot. 14. mended for submitting a question of this nature to the Court, and defendant's case was far from entitling him to the favour of the Court (1). Bonds with a 8. Bonds taken by the captain of a ship, on an outward-bound condition not voyage, from his seamen to himself, in £200 penalty, conditioned wage"until *^^* *^®y should not demand any wages until the ship arrived in ship returned the port of London : upon the ship being lost, and the seamen back to port . . x ■= —unjust and suing the Captain for their wages, were held to be unjust and void in Law (2). Weakness 9. Although, in Osmond v, Fitzroy (3), Sir J. Jeckyl, Master of incapacityris ^^ Eolls, ruled that where a weak man gives a bond, if there be almost always jjQ fraud or breach of trust in the obtaining it, Equity will not ingredient in get aside the bond only for the weakness of the obligor, if he be cases of bonds, , -n i • /-i i • <• &o., set aside compos mentis ; neither will this Court measure the size oi people s fraiS^°&a ° understandings or capacities, there being no such thing as an equitable incapacity, where there is a legal capacity (4); yet in Griffin v. Deveuille (5), the Lord Chancellor observed, that in almost every case upon this subject a principal ingredient was a degree of weakness short of legal incapacity, and that in this very case of Osmond v. Fitzroy no relief would probably have been given if the Court had not considered Lord S. (the heir-apparent in that case, whose bond upon a cross bill to be relieved against the bond to an original bill to recover the money on the bond, on an allegation that it was mislaid, was set aside on the ground of fraud and breach of trust of the party who obtained it), as more liable to imposition than the generality of mankind. 10. Where the defendant found the plaintiff naked, and going to bed with his wife, drunk (as was suggested by the plaintiff), and the defendant took up an axe, and, under terror, the plaintiff gave him a note for £500, and this was in June ; and in August the plaintiff gave the defendant a bond and judgment, and in October he surrendered a copyhold as a further security, and the plaintiff had told several persons that bis debt to the defendant (1) Earl of Chesterfield v. Janssen, (3) 3 P. Wms. 130, 5th Ed. 1 Atk. 301. (4) lb. (2) Buck V. RawUnson, 1 Bro. P. C. (.5) 3 P. Wms. 130, u. (1), 5th Ed. V6S. BONDS. 377 was a bargain for grass ; on a bill to set aside these securities, P/et i. C yHAPTER T T the Court refused to relieve further than against the penalties (1). sect. 14. ' 11. Where one settled land upon his daughter in tail, and took ^^bondupon" a bond from her not to commit waste, the bond is not binding in creating a --Y • • Ti 1 T T 1 •!! tenancy in tail Equity (2). And, per Owriam, it is an idle bond, and upon a bill not to commit to stay proceedings at Law upon the bond it was decreed to be Ending. delivered up, the defendants to pay the costs at Law and in the suit ; and the Court said it was like Poole's Case, cited in Tatton v. Molleneux, in Moore's Keports (809, 810), where a recognizance conditioned that the tenant in tail should not suffer a recovery, was decreed to be delivered up, as creating a perpetuity ; and though in Freeman v. Freeman (3), where the father settled land upon his son in tail, and took a bond from him that he should not dock the entail, on a bill to be relieved against the bond by the issue of son, the bond was decreed to be good, for if the son would not have given the bond the father might have made him only tenant for life ; yet it is submitted this case is not good Law. 12. Where a son, differing with his mother, a jointress, relating Bond not to to the repairs of the mansion-house, settled the estate on his ^oti^g^tg brother, but first took a bond from him, in his sister's name, that <=°™<^ ™to ^^ . son 3 house, the brother should never suffer his mother to come into the house, decreed to be the bond was decreed to be delivered up and cancelled, it being against the against the law of nature to prohibit a son to cherish his mother (4). '"^^ °^ nature. t 13. A bond given as a remuneration to the obligee for having A bond in assisted the obligor in effecting an elopement and a marriage with- of asairtiag'iii out the consent of the friends of the wife, was declared void, ^n elopement ' and marriage, though given voluntarily after the marriage, and without any pre- without cou- , „ ,, ._. sent of wife's vious agreement tor the same (5). friends, is void. 14. A bond given as a reward for using influence over another's Bond in con- estate, for the benefit of the obligor, was decreed to be delivered ^^^5 uggf up, but without costs, the plaintiff himself being pariiceps i^flience over . •. ii- T..1. . ,., o 1- XT another's cnmims, and having solicited to give the bond, and having got it estate, for P^-eP^^ed (6). af,„,^ delivered up. (1) Goodman v. Sense, Grilb. Bq. (4) Traiton v. Traitm, 1 Vem. 413, Eep. 9 ; 2 Bq. Abr. 183, pi. 2. 414. (2) Jervis v. Bruton, 2 Vem. 251. (5) Williamson v. Gihon, 2 Sch. & (3) 2 Vern. 233 ; Prec. Ch. 28 ; see Lef. 357. contra, 1 Bq. Abr. 87. (6) Debenham v. Ox, 1 Ves. 277. 378 BONDS. PaktI. 15. Bonds in fraud of marriage agreements are set aside on Ohaptek II. , , . , . ... Sbot. 14. public policy (1). jj^jj,; 16. In SrMth v. Briming (2), a marriage brocage bond was brocage bonds decreed to be delivered up, and a gratuity of iifty guineas actually 09 S6t , _ / ~\\ aside. paid to be refunded ; and in JJrury v. Ex>oke (3) a marriage brocage bond was decreed to be delivered up, the marriage being had without the consent of the woman's parents. Such bonds are not to be countenanced ; and in Keat t. AUen (4) a bond given to the wife's father in order to obtain his consent to the marriage of his daughter, to repay part of the portion if the daughter died without issue, where the daughter was entitled to her portion by a collateral ancestor, was set aside as a marriage brocage bond. Bond for pro- 17. Where a bond had been given by A. to B., for B.'s procuring Snoels''^"""" -^- ^ ^^ admitted purser to one of the King's ships, the Court purser in the reKeved against the bond on payment of principal, but without relieved ' interest or costs (5) ; but as to the disallowance of interest the law payment°of of that is questioned by Lord Mansfield and Lord Chancellor principal. Loughborough in the cases in the note to the case (6). And Bond in con- ^ ^ . -, ■, r^ ■ . t^ sideratlon of where A., by his interest with the Commissioners of Excise, got an curedln office office In that branch of the revenue for his brother, B., who, in from the Com- (jQjjgj(jgj.g^^jQjj tj^ereof, gave a bond to A. to pay him £10 per missioners oi ' ° tr j r Excise, annum as long as B. enjoyed the place. Equity will relieve against relieved * . against. the bond (7). The Lord Chancellor (Lord Talbot) said that bonds and engagements of this nature were liighly to be discouraged, and that merit, industry, and fidelity ought to recommend persons to these places, and not interest with the Commissioners, who, it was to be presumed, had they known from what motive the plaintiff at Law applied to them on behalf of his brother, would have rejected him : that the officer's giving money to a friend of the Commis- sioners for his interest was altogether as bad as giving money, or a bond for money, to the Commissioners themselves, which undoubtedly would have been relieved against ; and that it was a fraud on the public, and would open a door for the sale of ofBces (1) Debenham v. Ox, 1 Ves. 277. (4) Keat v. AUen, 2 Vem. 58S ; (2) 2 Vern. 392. Anon. Prec. Ch. 267 ; semb. S. C. (3) 1 Vern. 412; 2 Ch. Ca. 176; (5) Symondsv. Alison, 2 Vem. 308, S. I'. Arundel v. Trevillian, 1 Ch. 2nd Ed. Kcp. 187. (6) lb. (7) Law V. Law, 2. V. Wras. 391. BONDS. 379 relating to the revenue: that the taking away from the officer Part I. what the Commissioners and the Treasury thought to be but a ssor. 14. reasonable reward for his care and trouble, and an encouragement to his fidelity, must needs be of the most pernicious consequence, and induce him to make it up by some unlawful means, such as corruption and extortion; and that though the excise was no part of the revenue at the time of making the statute of 5 & 6 Edw. 6, against the sale of offices, yet there must be good ground to construe it within the reason and mischief of that law, which was rather a remedial than a penal one : but that, supposing it to be a good bond at Law, so were all marriage brocage bonds, which yet are justly condemned in Equity as introductive of infinite mischief; and their having been much litigated and contested, fortified the opinion that prevailed at last, for it shewed what was the sense of the supreme Court of Judicature after the incon- veniences of such bonds had been fully weighed and experienced. Wherefore, since engagements of this kind were likely to occasion corruption and extortion in offices, by having the profits of places separated from the places themselves, the Lord Chancellor directed the bond to be delivered up, and a perpetual injunction awarded thereon ; and he decreed that, though this might be a new case, the defendant should pay costs. But where A. agreed to surrendei his commission in the army to B. for £100, for which B. gave his bond, and B. was refused the commission, no relief was given save against the interest and costs, the defendant being ordered to accept of the principal money (1). 18. Where A., being a widow, gave a bond to pay B. £100 if she married again, and B. gave a bond to the widow to pay her executors the like sum if she should not marry again, and the widow soon after married, her bond was decreed to be delivered up, and also the bond from the defendant to the plaintiff A. (2). 19. If money be borrowed on a wife's estate for payment of her debts, and the husband at the same time gives a bond for payment of the amount, and he is afterwards sued on this bond for payment of the money, the Court will give him relief if he come to be repaid out of the wife's estate (3). (1) Btrrisford v. Done, 1 Vein. 98. 2nd Ed. (2) Baker v. While, 2 Vcm. 215, (3) Lewis v. Nangle, Ambl. 151. 380 BONDS. Pabt I. 20. Where A. agreed to be bound in a bond as surety to B., and Sect. 14. signed and sealed it accordingly, but by the neglect of the clerk A.'s name was not inserted, and the obligee shewed the condition, and his name and seal, demanded payment, and threatened to sue him unless he wotild give fresh security, which A. agreed to, but after finding the mistake refused, although not bound by Law, yet Equity will compel him (1). 21. Where a mother gave her son other lands in lieu of lands entailed, and by her will gave the entailed lands to her daughter, and took a bond from her son to permit her daughter to enjoy the entailed lands, and the son died leaving an infant son, who, being in possession of the lands that came in recompense, brought an ejectment of the entailed lands, and by reason of the infancy of the grandson the bond could not be sued ; the daughter filed a bill, and was decreed to be quieted in possession of the entailed lands until six months after the infant came of age, and then the infant might shew cause (2). Promissory 22. Where a woman at the time of her marriage was indebted TOon eivSig^ °^ *^^ promissory notes, and after the marriage her husband gave bond by jjig bond for the amount to the creditor, who thereupon delivered infant, ordered i i i i i • i ■ . to be returned, up the notes, and the bond having been put in suit, the husband iSanc^.'^'* ™^ pleaded his infancy at the time of giving the bond ; on a bill filed in this Court for relief, the Court ordered the notes to be returned to the plaintiff, with directions that the defendant should not plead the Statute of Limitations to any action the plaintiff should bring on the notes, or any other plea which the defendant could not have pleaded at the time the bond was given ; but this Court would not order the immediate payment of the money (3). Relief against 23. In Eo]/ V. Buhe of BeaufoH (4), a bill was filed against a bond'not to ^ judgment on a bond in which the plaintiff was jointly bound with commit tres- his SOU in the penalty of £100, that the son should not commit pass — the . i -n» i /• t> trespass being trespass in the Duke of Beaufort's royalty by shooting, hunting, instance of fishing, &c., except with the license of the gamekeeper, or in owlgeo^ °^ company with a qualified person ; and the son having caught two flounders with an angling-rod, the bond was put in suit, and a (1) Crosby v. Middletoi!,' Prec. Ch. (2) Thomas v. Gyles, 2 Vern. 232. aOO. (3) Clarke v. Cobley, 2 Cox, 173. (i) 2 Atk. 190. BONDS. 381 judgment obtained for the penalty. The gamekeeper's broth er-in- Part I. law and another servant of the Duke having asked the plaintiff's seot. 14. son to angle with them, when he caught the two flounders, and the ^ verdict having been found merely on their evidence, the Court (Lord Hardwicke) decreed that the plaintiff should be relieved against the verdict, and that the Duke should refund the £100 recovered on the bond, and the £40 damages ; but gave no costs in this Court, on either side, on the ground, as to the Duke, that he did not appear to have the least knowledge of the circumstances of the case, being -carried on merely by his agent, against whom costs in Equity would have been decreed had he been a party to the suit. Where the motives to an action are unjust, though the cause if motive of of action is just, a Court of Equity will always take this into con- thou^^cause sideration, though they cannot at Law pay any regard to it (1). °jf ^°l'°"a^e*' this into consideration, though Law cannot. 24. The Court allowed a demurrer to a bill, filed after a verdict No discovery at Law on a. bond, praying discovery whether the consideration ^(jeraUou°of was not an agreement by the defendant to cohabit with the plaintiff ^°^'^ ^'^^ ^°\ '^ •> '^ an agreement as his wife, and whether the defendant was not guilty of general to cohabit. incontinence, and for delivery up of the bond, and an injunction to restrain the proceedings at Law ; the Lord Chancellor observing that the necessity for the interposition of this Court was entirely taken away when all that matter that would have avoided the bond might have been pleaded at Law (for a bond in consideration of future cohabitation is void at Law), which had been done, but that the plea had not been supported, and the plaintiff's counsel alleged that no defence had been made beyond the plea ; and the Lord Chancellor said that the plaintiff had no right to call upon the defendant to discover that turpitude which was common to him and to her, the defendant ; and that he, the Lord Chancellor, could not compel her to discover whether before the connection she capitulated with the defendant for this provision, and that that would make her liable, not only to the reproach, but to the conse- quence of having lived in this illicit course of life (2). But a bond Bond to secure to secure a provision for a woman seduced by the obligor, and for a'^^^^an and her children, given by a man, though married at the time of the "l^ildren after connection, to a woman after the cohabitation ceased to exist, is good. (1) Soy V. Duke of Beaufort, 2 Atk. 190. (2) Franco v. BoUon, 3 Yes. 368. 382 BONDS. Part I. Ohapteb II. Sect. 14. A yoluntary bond given to a prostitute, after keeping her, will not be relieved against. Contra, if given pre- viously to cohabita- tion. is good (1) ; and a voluntary bond given by a person to the defendant, a common woman, after be bad kept her two years, was not relieved against, upon a bill by the executor of the,obligor (2). And the Lord Chancellor Camden said that he was clear in his opinion that the plaintiff was not entitled to relief; that the cases which had been determined against securities given to common prostitutes went upon the circumstance of the securities being given previous to the cohabitation, a consideration which, being iwfis in its nature, the Court had relieved against them ; that in this case the bond was not given for a consideration, but was voluntary ; that Hill, the obligor, had resort to her for nearly two years before he gave her the bond ; that past service could not be a consideration at Law, and nothing was stipulated for the future ; that there was no principle in Equity which says a man may not give a voluntary bond to a common prostitute, and that it would be going but a little further to say that he could not give her money without her being liable to be called upon for it ; that there was no circumstance of fraud in this case, and he did not think that in the case of a voluntary bond, the obligee being a common prostitute, is of itself a sufiBcient groimd for relief. And in Spicer v. Hayward (3), where the plaintiff had seduced his wife's sister, and had had several children by her, and had given her some bonds for payment of money as a provision for her and her children, and these bonds being sued, he brought a biU suggesting that the bonds were given for no valuable consideration, the Court dismissed the bill with what the case calls " good costs." 25. Where A. had put his son apprentice to B., and given a bond for his fidelity, and taken a covenant from B. that he would, at least once a month, see his apprentice make up his cash, and the apprentice embezzled the cash, and B. brought an action on the bond ; on a bill by A. to be relieved, the Court decreed that A. should be answerable for no more than B. could prove his apprentice had embezzled in the first month after the embezzlement began. The Lord Keeper said that the meaning of the covenant was, that defendant should not only see to the casting-up of his cash, that it (1) Krnje v. Moore, 2 Sim. & S. 2G0 ; S. G. nom. Knye v. Moseley, 3 L. J. (Ch.) 136. (2) Hill v. Spencer, Ambl. 641. (3) Preo. Ch. 114. BONDS. 383 was right in figures, but should see the cash effectually made up ; Paet I. " -, , , ,1 Ohaptee II. and that the bond and the covenant ought to be taken as one sect. 14. agreement, that the plaintiff would be answerable, provided accounts were taken monthly, and would be liable but for one month's embezzlement (1). 26. A bond executed for a sum of money lost at billiards is Bond for void (2), And in Bawden v. ShadweU (3), where a bond had been billiards, is given for money won at play, and a part of it paid, the Court g^^^g ^^^ ordered the money to be repaid and relieved against the bond money won at T)l£LV rGliGVCd for the remainder. In Woodroffe v. FarnJiam (4), where one against. apprentice gave a bond to another apprentice for 501. won at play, the bond was decreed to be delivered up, gaming among apprentices being of the worst consequence, and by the custom of London a master may justify turning away his apprentice if he frequents gaming (5). But where a bond executed for a sum of money lost But a bond at billiards had been assigned with the privity of the obligor, aTbTlSard^"" and upon his assurance that it was valid, and where he paid part of ^e relievS^'^^^ the money, and prevailed on the assignee to enter satisfaction upon against— as the judgment obtained on the bond, and accept a new security for assignee, -with the remainder of the debt. Equity will not relieve him (6). obligor and 27. In Taylor v. Bell (7), where a woman resorted to places of hoM^'^^^w" gaming at Court, and borrowed money to supply persons of quality in their gaming, and gave the lenders great rewards and after- wards borrowed more, and was arrested for the last money lent, and gave a bond and judgment for it, and then brought a bill to have an allowance for the former excessive premiums which she allowed, the Court would not relieve otherwise than on payment of principal, interest, and costs at Law and in Equity, on the ground that the Court would not interfere or meddle with play-debts and things of that kind. 28. "Where A., on his deathbed, desired his executor not to trouble B. for a bond debt, but the executor nevertheless put the (1) Montague v. Tidcomle, 2 Vern. Act to amend the Law relating to Secu- 518. rities given for Considerations arising (2) Kenny v. Browne, 3 Eidg. P. 0. out of gaming, usurious, and certain 514. other illegal Transactions.'' (3) Amb. 269. (6) Kenny v. Browne, 3 Ridg. P. C. (4) 2 Vern. 291. 514. (5) Vide 5 & 6 Will. 4, c. 41 : " An (7) 2 Vern. 171. 384 BONDS. Pabt I. bond in suit, the bond was ordered to be delivered up to be can- Chapter II Sect. 14. Celled, and the costs of Law and Equity to be paid by the executor ; but as to costs this decision was reversed (1). Equity will in 29. Though Equity will in some cases carry a debt secured by carry a debt ^ bond, beyond the penalty, as where a man is kept out of^liis bond^be^'^nd i^oneybyan injunction, or is prevented from going on at Law (2), the penalty, the creditor being restrained by an injunction obtained by the debtor from proceeding at Law, and there being no misconduct on the part of the creditor (3) ; yet (subject to such exceptions) where a man has judgment for the penalty of a bond, though the principal and interest exceed the penalty, he shall recover no more than the penalty (4). So, where the vendor of lands enters into a recognizance for the quiet enjoyment of the vendee, the Court will not go beyond the penalty, though the vendee's loss by eviction be greater(5). So, where a master of a ship covenanted to pay a penalty for all cloth carried in his ship, and in like man- ner bound his mate not to carry cloth under the penalty of £50, though the mate carried cloth to the value of £70 unkno\vn to the captain, and the captain was obliged to pay the money, he could not, on his own application, charge the mate beyond the penalty (6). Suit for 30. Where the penalty of a bond is only to secure the enjoy- restoined ment of a collateral object. Equity will grant an injunction against where only g, g^jt for the recovery ; and in Sloman v. Walier (7) an issue, to secure eol- "^ . ^ ' lateral object, quantum damnificatus, was directed to try the real damage ; and penaUy re- Chancery will not suffer a penalty to be demanded if the party strained, yj\]\ perform that for the non-performance of which the penalty is where party -^ '■ •' will perform given (8). And where the defendant had the plaintiff in exe- performance cution, and refused to discharge him without payment of the penalty, the defendant was decreed to refund all he had received, except principal, interest, and costs (9), and sureties are relievable (1) Wekett V. Rahy, 2 Bro. P. 0. 386. (8) Hele v. Hde, 2 Ch. Ca. 88. (2) Duval r. Terry, Show. P. C. 15. (9) Friend v. Burgh, Finch, 437; (3) Orant v. Grant, 3 Kuss. 598. v. 8 & 9 Will. 3, c. 11, s. 8, and 4 & 5 (4) Stewart v. Bumhall, 2 Vern. 509. Anne, c. 16, ss. 12, 13, for relief at law (5) Bidlake v. Arundel, 1 Ch. Eep. from penalties : the first, for non-per- 95. formance of covenants ; the second, (6) Davis V. Curtis, 1 Ch. Ca. 226. against the penalties of bonds. (7) 1 Bro. C. 0. 418. of which it is given. BONDS. 385 against the penalties of bonds (1). And if a man agree not to do Part i. an act, and enter into a bond with a penalty to be forfeited on his Sbc™14. ' doing it, the penalty is never to be considered as the price for doing such act ; but the Court will relieve by injunction until the actual damage sustained shall be ascertained by an issue (2). 31. Where the plaintiff was sued upon a bond at Law, and pleaded solvit ad diem, and by his bill in Equity he charged fraud and want of consideration, the Court relieved against the penalty, but decreed the principal, interest, and costs to be paid (3). And in Earl Ches- terfield V. Janssen (4), where A., aged thirty, borrowed £5000 on a post-obit bond to pay £10,000, if he survived B., aged seventy-eight, and A. survived a year and eight months, no relief was given except as to the penalty ; A. having, on the death of B., confirmed the bar- gain by a new bond, &c., freely ; and the Court directed an account of the principal and interest due on the bond and judgment thereon. And in Hill v. Gaillovel (5), upon a post-obit bond by A., aged twenty- four, in 1720, for payment in six months after his father's death, if he survived, otherwise to be void, and the father was then seventy, and died in 1781, and A. in 1734, Lord Chancellor Hardwicke gave no relief except against the penalty ; there being no proof of imposition, although suspicious circumstances in it. 32. In a suit to set aside post-obit securities, upon an injunction being granted the principal and interest will be ordered into Court, and will not be paid out to the defendant (6). 33. Where A., intending to go a voyage, entered into a bottomry bond whereby the plaintiff was bound, in consideration of £400, as well to perform the voyage within six months as at the six months' end to pay the £400 and £40 premium in case the vessel arrived safe and was not lost in the voyage, but it fell out that the plaintiff never went the voyage, whereupon his bond became forfeited, and he filed his bill for relief ; the Court decreed the defendant should lose the premium of £40, and be content with his principal and" ordinary interest (7). 34. No interest will be allowed beyond the penalty of the bond No interest allowed be- (1) Gary, 12. (5) 1 Ves. Sen. 122, 4tli Ed. ^""'^ P'"^'*^ (2) Eardy v. Uartin, 1 Cox, 26. (6) Marsack v. Farlaw, Jac. 572. (3) Duval V. Terry, Show. P. 0. 15. (7> Deguilder v. Depeister, 1 Vern. (4) 2 Ves. Sen. 125. 263. 2 C 386 BONDS. Part I. except on special grounds (1). And in Denny v. Lord EnnisldUin (2) Seot!^14. ' interest bej'ond the penalty of the bond was not allowed to the "TT 7 7 assignee of a judgment, although he had been restrained by an special injunction for a short time from proceeding at Law. grounds. i i i • 35. Where A., entitled fo an estate, gave a bond to his coun- sellor, B., to give him half of it if he recovered, the bond was declared void ; and although it is said in the case B. shall only recover his reasonable charges (3), yet now there is no right what- ever of recovering them. A bond 36. Where a father having advanced a child in his infancy, upon undue his coming of age took a bond from him to a greater amount than ence°set IsWe' *^® ^"™® advanced, the Court held that the bond had been obtained by parental influence, and decreed the bond not to stand as a security for the sums advanced, but to be set aside altogether ; and loose expressions, in a letter from the son, were held not to be a confirmation (4). 37. Where A., having previously borrowed £1000 of B., executed to him a bond for that sum, and B., two days afterwards, executed a deed whereby he covenanted that the bond should not be enforced ; and some years afterwards B., having become bankrupt, his assignees brought an action on the bond, and filed a bill to have the deed of covenant declared fraudulent; the Court held, that it would not interfere against the legal operation of the deed, there being nothing to shew that B. was insolvent when he executed it, and there being evidence that A. had, also, at that time, pecuniary claims on B., and that execution of the bond was accompanied by an agreement that payment of it should not be enforced (5). 38. In Sleeper v. Carver (6), bonds for resignation (being at that time considered legal) were held good where no improper use was made of them. But though bonds of resignation were not then prohibited by law, yet if they were made use of to extort money from the incumbent, or to turn him out for anything but (1) Clarke v. Seton., 6 Ves. 411 ; (2) 2 Moll. 535. S. P. Bx parte Mills, 2 Ves. Jun. 301 ; (3) Skapholme v. Sart, Ca. temp. Orosvenor v. Coo7c, Dick. 305; Oib- Finch, 477. son V. Erjerton, Id. 408 ; Krttldnj v. (4) Carpenter v. Heriot, 1 Eden, Kettlehy, and Itiiiidle v. Pettit, Id. 338. 514. (5) Slack V. Tolson, 1 Euss. 553. (6) 2 Eq. Abr. 183. BONDS. 387 ill behaviour or immorality, Equity would grant an injunction (1). Part I. Ohapter it In Pede v. Capel (2), upon a bond to resign in favour of the sect. m. ' patron's nephew when of age, and at that time, instead of in- sisting on resignation, the incumbent agreed to pay £30 per annum for seven years, and stopped, the patron was restrained from suing on the bond ; but the incumbent was left to his remedy at Law to recover back the money paid (3). 39. Where, in a suit for the administration of the assets of obligors in a common money bond, the Master, under an order of reference made by consent, enabling him to inquire into the con- sideration and all the circumstances relative to the bond, reported that it was a voluntary bond given as a bounty to the obligee; and the representatives of the obligors and the obligee took exceptions to the report, the former alleging that it was a bond of indemnity, the obligee claiming it partly for money advanced, and partly for services performed ; the Court below refused leave to withdraw the obligee's exceptions, and directed issues to try whether the bond was given for money and services, or as a gift, or for indemnity. The House of Lords, on appeal, reversed that order, and remitted the case to the Court below to decide these questions on the evi- dence before it. The Court below decided accordingly upon a new hearing, and declared the bond to be partly for counter security, partly as gifts for services. The House of Lords, upon appeal, reversed that decision also, and ordered the Master's report to be confirmed ; and the Court below subsequently, upon the hearing of the counter petitions, one presented by the representative of the obligee, praying payment of the bond and interest ; the other by the representative of the obligors, praying for leave to institute a new suit to impeach the bond, on the ground that a gift from a principal to an agent was invalid in Equity ; made an order for such (1) Hawkins v. Turner, Free. Cb. in favour of one of two particular per- 513. sons was void. But see now 9 Geo. 4, (2) 1 Str. 534. c. 94, enacting that in certain cases an (3) V. 1 Bli. (N. S.) 148 ; et v. Bishop engagement before presentation, Sec, to of London, v. Ffytche, 2 Bro. P. 0. 211 ; resign a benefice in favour of one per- Tom. Ed. Cunn. Sim. 52 ; deciding that son, or one of two persons specially general bonds of resignation are void. named, should, in the circumstances Fletcher v. Lord Sondes, 1 Bli. (N. S.) there mentioned, be valid. 144, deciding a special bond to resign 2 2 388 BONDS. Paut I. suit, and granted an injunction against any proceedings on the Seot. 14. bond in the meantime. The House of Lords, upon appeal, reversed that order, holding, that as the respondent omitted to take advan- tage of any of the opportunities of raising that objection to the bond in the preceding inquiries, it was not now competent to him to harass the other party by a new suit in which no new evidence could be produced (1). WTieic re- 40. Where a plaintiff, while lodging at an hotel, and seriously payments are ill, executed a bond to the landlord for £1000 payable at six and trans'ao^-^' months' date, to secure moneys paid and advanced for the plaintiff ^^Td ""'^P''" for hotel and other charges, the landlord undertaking to rectify all settled account errors in the accounts ; Vice-Chancellor Sir J. Stuart, upon a bill only stand for for an account, restrained an action on the bond, the plaintiff tbeolai'™ " &^^^S judgment for the amount of the claim, the receipts and payments being on both sides, and defendant, in his evidence, shewing a statement of complicated transactions, with receipts and payments on both sides, and no evidence that vouchers had been produced and signed to shew a settled account (2). Bond to 41. A bond given for the purpose of enabling the obligee to to raise money raise money passes to an assignee for value, subject to the subsist- assT'mee'for ™S equities in favour of the obligor, unless the intention with value, subject which it is given is expressed on the face of it (3). And where G., to subsisting . equities in an officer, twenty-six years old, gave a bond for a £1000 to J., a obligor, unless barrister, thirty-two years old, without consideration, and at his it'iTimKie instance wrote him a letter to the effect that the bond was given negotiable. for the purpose of enabling J. to raise money ; and G. testified that he thought that he was signing something for J.'s accommodation, and that J. would indemnify him ; and J. afterwards told G. that G. was under no liability for him ; but later he assigned the bond and gave the letter to B., who took hond fide and for value ; and B. refrained from suing on the bond, on the strength of a promise by G. to pay as soon as he should come into certain property, G. not knowing his right to have the bond set aside ; the Master of (1) Nicol V. Vaughaii, 1 01. & F. Giff. 613; 9 Jur. (N.S.) 1280: 495; 5 Bli. (N. S.) 505, reversing finZ (3) Graham v. Johnson, 38 L. J. Winchilsea v. GaretUj, 1 My. & K. 253 ; (Cli.) 374 ; L. R. S Eq. 3() ; 17 W. K. 2 h. J. (N. S.) Ch. 115. 810; 20 L. T. (N. S.) 77. ('2) EdiminJa-Wood v. Bahhrin, 4 SHIPPING— SHIPMENTS. 389 the Eolls, Lord Komilly, held, that G. had a right to have both J. Part I. and B. restrained from suing on the bond ; and that as against J. seot. 14. Gr. was entitled to have the bond cancelled ; and that although G. gave the bond with the intention that it should be used as a nego- tiable instrument, yet that, as there was nothing on the face of the bond to shew such intention, B. took it subject to the equities between G. and J., and therefore could not be allowed to enforce it against G., a bond not being a negotiable instrument, although it may upon its face be made so (1). 42. Where B., for the purposes of a society of which he was the solicitor, borrowed £600 on the security of a joint bond entered into by himself and C, and the bond wa& conditioned to be void if the obligors, their heirs, executors, or administrators, should, within one month after the death of such one of three persons named in the bond as should first die, pay to the obligee £2000, and the bond also charged the interest to which the obligors might become entitled in any personal estate under the wills of the said three persons, with payment of the £2000 j on the death of the last survivor of the three persons the obligors sought to be relieved of their obligation under the bond, on the ground that it had been entered into under circumstances which were inequitable, and that the whole transaction amounted, in fact, to a sale of a reversionary interest for an insuiEcient consideration ; Vice-Ohancellor Sir J. Stuart held that the bond was good (2). Sect. 15. Bhipjpinff — Shipments. 1. The effect of the Merchant Shipping Act, 1854 (17 & 18 Under ss. 70, Vict. c. 104), ss. 70, 71, upon the siaius of a mortgagee of a ship is ch^nt ^hip- as follows : — It first declares that the mortgagee is not the owner pingActmoit- ' gagee of ship then that the mortgagor has not ceased to be the owner, then that is not owner the mortgagor shall be the owner, save so far as may be necessary isownef,^save for making the ship an available security for the mortgage debt (3). bein<'*avaa-^ (1) Graham v. Johnson, 38 L. J. (2) Gardner v. Cowper, 18 L. T. f'^'' security (Ch.) 374; L. R. 8 Eq. 36 ; 17 W. E. (N.S.) 627. debt™ "^ 810 ; 20 L. T. (N. S.) 77 ; v. Agra and (3) OoUins v. Lamport, 11 L. T. (N.S.) Master-man's Bank Case^h. E. 2 Ch.497; 11 Jur. (N. S.) 1; 13 W. E. 2*^3; 301. ' 34 L. J. (Ch.) 19C ; v. pi. 11, post. 390 SHIPPING— SHIPMENTS. Part I. Therefore a mortgagor of a ship remaining in possession has full Sect. 15. power to enter into contracts with respect to the ship, provided they do not impair the security ; but the mortgagee may at any time enter into the benefit of such contracts by giving notice of his having required payment of his debt. And where K., the owner of a ship, having mortgaged it to the defendant, had contracted with L. for the sale of the ship to him, and before R. became finally bound by the contract L. entered into a charterparty with the plaintiffs, but before the vessel started on her voyage E. stopped payment, whereupon the mortgagees took steps towards selling the ship, it appearing that the terms of the charterparty would Mortgagee not damage the security ; Lord Chancellor Westbury (reversing a rcsT rSiin 6 u. dealing witli decision of Vice-Chancellor Sir R. T. Kindersley) granted an injunc- sistenrwith a tion to restrain any dealings witli the ship inconsistent with the "party, ^^rms of the charterparty (1). 2. In Heriot v. Nicholas (2), where a vessel had been chartered to convey a cargo of coals to China, and, having become damaged, the master was forced to discharge the cargo, and the owner de- clined to reship it, on the ground that having become wet it was Owner re- liable to Spontaneous combustion : on a bill by the charterers to strained em- . -^ ■' ploying ship restrain the owner from employing the ship in any manner incon- with charter- sistently with the charterparty, the Lords Justices directed an an'inqSby^^"^ inquiry as to the state of the cargo, and granted an injunction Purchasers of pending .such inquiry. And where the master of an American noticr'of a vessel arriving in England, authorized by the owners to sell or enteredi^\*o ^^^"^^^^ *^^ ^'"P' entered into a charterparty with the plaintiff for by master duly a voyage to Ceylon and back, and a few days afterwards the defen- restrained ' dant purchased the ship from a party acting under a power of wiih^r^Ung of atto™ey from one of the owners to sell her, and the greater part ship in pur- of the Cargo had been put on board under the charterparty, and suance ot u i. r j' cJiarterparty. the defendant attempted to stop the sailing of the ship; Vice- Chancellor Sir W. P. AVood held, that the master having authority to charter the ship, which he had done, and the defendant knowing of the charterparty, an injunction would lie to restrain the pur- chasers from interfering with the sailing of the ship in pursuance (1) ColUns V. Lamport, 11 L. T. W. K 283; 3i L. J. (Oh.) 196 ; t). pi. (N. S.) -I'M; 11 Jur. (N. S.) 1 ; 13 U, pnst. (2) 12 W. E. 84-1. SHIPPING-SHIPMENTS. 391 of the charterparty (1). And the Court will restrain an owner of Paut I. a Tessel from doing any act inconsistent with a charterparty into seot. 15. which he has entered ; and parties who have mutually bound owner ill h themselves will be restrained from doing any act inconsistent with restrained . ^ doing acts a charterparty which they have entered into hond fide (2). And inconsistent although the Court of Chancery cannot decree the specific perform- party— and ance of a charterparty, yet it can restrain the parties from employ- ^"tuaUv ing the ship in a manner inconsistent with the rights under a t)ound, restrained. charterparty (3). And although the Court will not affirmatively Though Court enforce the specific performance of a charterparty, yet it is implied affirmatively in such a contract that if a charterer provides a cargo the ship enforce specific per- shall not be employed for any other purpose ; and a mortgagee formance of a with notice of a prior charterparty effected with the mortgagor yetVarik's^' will, in general, be restrained from doing anything to prevent its gtrained'^em- performance (4), Where, however, a mortgagor in such case was ployi"g ship . . . inconsistent unable to put the ship m proper repair to make the voyage, with it. or otherwise to perform the contract, and the charterer took no steps for several months with respect to it, the Court of Appeal held, that, under the circumstances, the contract was virtually at an end upon the mortgagee taking possession of the ship, and that the mortgagee ought not to be further restrained from exercising the powers contained in the mortgage (5). And where a shipowner entered into a contract to carry a cargo of coals from Birkenhead to Bombay, and the charterparty contained the ordinary exception of perils of the sea ; and the ship, soon after sailing, was oveirtaken by a storm, and put into Belfast ; and the master of the ship had the coals unshipped, and being advised that they were in too dangerous a state to be reshipped, he had them sold; and the charterers filed a bill to restrain the shipowner from using the ship in a manner inconsistent with the charterparty ; Lord Cairns, L. J., held, upon an appeal from Vice-Chancellor Sir E. Malins, who had granted an injunction in those terms, putting the plaintiff upon an undertaking to provide a fresh cargo of coals, and indirectly (1) Messageries Imperiales Company (3) Le Blanch v. Granger, 35 Beav. V. Baines, 11 W. R. 322. 187. (2) Sevin v. Deslandes, 7 Jur. (N. S.) (4) De Mattos v. Gibson, 4 De G. & 837 : 30 L. J. (Oh.) 457 ; 9 W. R. 218. J. 276 ; 5 Jur. (N. S.) 347, 555 (5) lb. 392 SHIPPING-SHIPMENTS. Part I. compellirig the ship to return to Birkenhead for that purpose, that Sect. 15. ' ^o such injunction could be granted, on the ground that it com- " palled the plaintiffs to enter into an agreement which they had never entered into, while it forced the defendant to enter into the same agreement by putting a constraint upon him (1). It is a general 3< It is established as a general principle, that a legal title duly a legal title acquired in any one country is a good title all over the world (2). country is ^uly to acquire a legal title to real estate, such legal title must good all over be according to the lex loci rei sitae. But the due acquisition of a the world. . ° . -^ In acquiring legal title to moveables may give rise to the question whether the moveable! The ^^"^ ^°^* (Contractus, or the laws of the country wherein the contract- question may ing parties may be domiciled, or even the lex loci rei sUse, shall arise whether o i. ^ tlaelexlocicon- prevail. Howevcr, where all these circumstances are combined in law of 'the the acquisition of a legal title to a moveable, such title is, beyond the parties'are '^o^^*'' good all the world over ; and where assets are distributable, domiciled, or the Order and disposition of such assets will be in accordance with even the lex , loci rei sitx the lex fon where such assets are distributable, but not where such wherfall are" ^ssets are the produce of a chattel upon which a valid security has combined,iitle been given. And a judgment of a foreign Court is conclusive irder over the world, parfes where there is nothing on the face of the judgment which a maTdis- Court here can inquire into j but the Courts of this country may regard a review and disregard a foreign judgment inter partes if it appears ment inter on the record : first, to be manifestly contrary to natural justice ; 1, where con- Secondly, or to be based on domestic legislation not recognised by naTirrai jus- foreign Countries ; thirdly, or to be founded on a misapprehension g"^' of what is the law of this country ; and fourthly, or to be founded domestic legis- upon a distinct refusal to recognise the laws of the country under lation not i • t. i ■ i i i • recognised by which the title to the subject-matter of litigation arose ; and the trfesfal^or^' Same rules apply to judgments of colonial Courts. And a foreign misa'^^r iTn J'^'^g^^ut may be reviewed by the Courts of this country if any sion of law of error appears on the face of the record ; therefore, where a ship, 4, or founded the property of British subjects, had been duly mortgaged in Great reoJgSseMws l^ritain to other British subjects, and being in the mortgagors' of country possession proceeded to New Orleans, and whilst there it was under winch ' -^ _ the title arose ; attached by creditors of the mortgagors, resident in New Orleans, error appears '"^nd after due intervention and hearing of the British mortgagees record! ° (,!■) -^damson v. Oill, 16 W. R, 639, (2) Simpson v. Fogo, 1 H. & M. 195 ; 306 ; 18 L. T, (N. S.) 278. 11 W. JR. 418. SHIPPING— SHIPMENTS. 393 before and by the Courts of Louisiana, sold under process of the Paet i. T -r. • • 1 1 • J. 1. OHAPTEK II. Court, to satisfy the attaching creditors, to a British subject, who sect. 15. had notice of the mortgagees' intervention ; on a bill by the mort- gagees against the purchaser, the defendant Fogo and the con- signee and the captain of the ship, alleging that the defendants, the consignee and the captain, intended to pay the freight already accrued to the defendant Fogo, and that Fogo intended to dispose of the ship, and send her away from Liverpool (to which place Fogo had sent the ship with a cargo, and, on its arrival, had had it registered there), without regard to the claims of the bank, the mortgagees ; and praying an injunction to restrain the defendants from allowing the ship to leave Liverpool, and from dealing with her without the consent of the bank, and also from collecting the freight; and that a receiver might be appointed to collect the freight; and for a declaration that the Bank of Liverpool was entitled to the ship and freight, subject only to any disbursements properly payable thereout ; Vice-Chancellor Sir W. P. Wood held, that'the sale was subject to the right of the mortgagees ; and that the judgment of the Court of Louisiana was examinable for error on the face of it by reason of its disregard of the comity of nations ; and that the mortgagee was entitled to the ship and freight, sub- ject to a prior lien in respect of sums paid to privileged creditors ; and also that the judgment was of the nature of a judgment inier partes as regarded the inter venor; and, senible, that a foreign judg- ment, even in rem, may be examined and disregarded, if it appears on the face of it to have been founded on a perverse disregard of English law, in a case properly subject to that law by the comity of nations (1). But where the owner of a British ship having mortgaged it in England, employed a Liverpool firm to consign it to their agents at New Orleans, and as the New Orleans firm happened to be creditors of the owner, the Liverpool firm, in con- sideration of their having the consignment, instructed their agents not to proceed against the ship at New Orleans, but to remit the proceeds to the mortgagees; and afterwards, the Liverpool firm getting into difiiculties, some of the mortgagees insisted on the consignments being changed, and the Liverpool firm withdrew their instructions ; and when the ship arrived the New Orleans firm (1) Simpson v. Fogo, 1 H. & M. 195 ; 11 W. E. 418. 394 SHIPPING— SHIPMENTS. Part I. Chapter II. Sect. 15, brought actions in their Courts against the owner ; and as the Courts of Louisiana do not recognise the rights of mortgagees without possession, writs of attachment were obtained, under which the ship was seized ; and the mortgagees then, to prevent the ship being sold, gave to the New Orleans firm bonds for the amounts to be recovered in the actions, upon which the ship was released ; and the mortgagees filed a bill to restrain the holders of the bonds from suing on them in New Orleans or elsewhere, and to have the bonds delivered up ; Vice-Chancellor Sir W. P. Wood held, upon a demurrer, that the Court had no jurisdiction to stay proceedings on the bonds ; first, because the Court would not have restrained exe- cution of the attachment at New Orleans, as it could not have placed all the creditors, foreign and domestic, on an equal footing, and it would have given an advantage to the American creditors to which they were not entitled ; secondly, because if it could have done so, the mortgagees should not have placed themselves in a lower position by giving the bonds, but should have come into the English Court of Equity in the first instance to have restrained the attachment ; and the Vice-Chancellor said, further, that by acceding to the prayer of the bill he should be placing British subjects in a position in which it would be impossible for them to get their ships released at all (1). And this decision was affirmed by Lord Chancellor Chelmsford, who held that though the transfer of personal property must be regulated by the law of the owner's domicil, and that the disregard of that law by the Courts of a foreign country is an infraction of the comity of nations which justifies the Court of Chancery in decreeing a restitution, as in Simjison v. Fogo (2), upon the property coming within its juris- diction ; yet, that if a creditor pursues the chattel of his debtor to a foreign country in which he knows that the rights of a third cer/iu decree- pS'J^ty will be disregarded, this Court cannot interfere to restrain mgrestitution. ^.j^^ proceedings taken by the creditor in the foreign country (3). pursues a chattel to a foreign country where he knows the rights of a third party will be disregarded, this Court cannot interfere. 4. Where P. & Co., being registered mortgagees of vessels, de- (1) Liverpool Marine Credit Co. v. Hunter, L. R. 3 Ch. 479; 16 W. E. Hunter, h. R. 4 Eq. 62. 1090 ; 18 L. T. (N. S.) 749 ; 37 L. J. (2) Ante (Ob.) 386. (3) JAverpuul Marine Credit Co. v. Disregard of the law that the transfer of personal property is regulated by domicil, is an infraction of the comity of nations, and SHIPPING-SHIPMENTS. 395 posited on the 20th of December, 1858, before bankruptcy, the Part I. instruments of mortgage with their bankers to secure the amount seot. 15. of ■ an overdrawn account ; and on the 22nd of December two cheques were presented by P. & Co. for payment, but the bankers refused to pay them ; and thereupon a bill of sale was executed by P. & Co. of their goods and effects to secure the balance due, and further advances ; and on the 23rd of December the bankers paid the cheques, but transfers of the mortgages were not executed to the bankers ; and on the 28th the bankers sold under the bill of sale some of the effects ; and on the 80th P. & Co. were adjudicated bankrupts ; upon a bill by the bankers for an injunction to restrain the sale by the mortgagor of the vessels, and an action at law against the plaintiffs for the conversion of the chattels sold under the bill of sale ; and for declarations that the giving and executing the bill of sale was not an act of bankruptcy then committed by P. & Co. ; and that the plaintiffs had a lien upon the vessels and the proceeds of the same in respect of the equitable deposit of the mortgages ; and that the defendants, the assignees, might be directed to join in proper transfers of the mortgage securities to the plaintiffs ; Lord Chancellor Westbury held (afSrming the decision of Vice-Chancellor Sir J. Stuart), that the bill of sale, being an assignment of all the trader's property as a security for an antecedent debt, as well as for future advances, was an act of bankruptcy, and tlie bill in that respect was dismissed with costs ; but that the deposit of the instrument of mortgage took the ship The deposit of out of the order and disposition of the bankrupt, and constituted mm-tg^e°of'^ the creditor equitable mortgagee of the ship, and a decree on this ^^!p ^^^^l *J"^ . ° ° '-' ship out of the point was made m favour of the plaintiffs, with costs (1). order and 5. Where by an agreement in 1861, but not executed till the mOTt°|agor, ° nth of April, 1862, shipbuilders had agreed to build a schooner t^tts thf " for P., and on the 12th of April the agreement was assigned to the creditor 1 ■ -jv i>rr\r\ 111 equitable piaintm to secure i.oOO already advanced to them for the purpose mortgagee of of enabling them to complete her, and future advances up to a * '^ ^ ^^" certain amount ; and the vessel was assigned to the plaintiff to be held by him in lien for such advances and interest ; and on the 19th of May the agreement between the builders and F. was put an end to ; and on the 20th they entered into a new contract with (1) Lacon V. Liffcn, 9 Jur. (N. S.) 477 ; 32 L. J. (Cb.) 25, 315 ; 4 Giff. 75. 396 SmPPING— SHIPMENTS. Part I. the plaintiff to complete and sell the vessel to him for £1160, of Sect. 15. " which the advanced £500 was to be taken as part payment ; and no registration of the vessel ever took place, but on the 20th of May the builders certified, according to the provisions of the 17 & 18 Vict. c. 104, that they had built the schooner for the Plaintiff; and the advances did not appear to have been laid out exclusively upon the vessel ; and before the 20th of May the builders had discharged their workmen, and were virtually insolvent, though this was not proved to have been brought to the plaintiff's knowledge ; and the vessel was unfinished on the 2nd of June, when they were adjudi- cated bankrupts, and on the 19th the defendants were chosen assignees ; on a bill to support and enforce the lien as to the in- trument of the 12th of April, praying for a declaration that the plaintiff was entitled to a lien upon the ship, and that the defen- dants might be decreed specifically to perform the agreement of the 20th of May by completing the vessel themselves, or permit- ting the plaintiff to do so, and that they might be restrained from selling, mortgaging, or otherwise dealing with the vessel, the Court held that the lien under the 12th of April was destroyed, if not by the cancellation of the agreement with F., yet by the fact that the £500 thereby secured was merged into, and taken as part payment of the purchase-money, under the agreement of the 20th of May; but as to the memorandum of the 20th of May, the Court held that under it the plaintiff was entitled to a lien on the unfinished ship for the £500 actually advanced, and also that no registration under the Bills of Sale Act (17 & 18 Vict, c. 36), was necessary, and that the vessel was not within the order and disposition of the builders at the time of their bank- ruptcy (1). Master of 6. A master of a ship has no lien on the ship or freight for lien on'ship or wages, or for any expenditure which he may make in the ordinary freight for discharge of his duties as master, however necessary for the per- wagea or " •' ^ expenditure as formance of the voyage. But the case becomes one of ordinary But if master principal and agent where he makes a special contract, in itself makes a ^ ultra vires, in order to fulfil which he incurs special expenses ; if the tract ultra owner adopts the benefit of that contract he must, in Equity, also vires, if owner adopts the beneiit of contract he must boar its burthens. (1) Swainston v. Clay, 11 W. 1!.301, 811 ; 8 L. T. (N. S.) 363. SHIPPING-SHIPMENTS. 397 bear its burthens (I). Where, therefore, the master of an ordinary Paet I. . seeking ship, in April, 1856, entered into a charterparty under seot. 15. seal, therein describing himself as commander and owner, to carry troops from the Mauritius to England, and stipulated, on his own responsibility, in the charterparty, that he would make certain alterations in the ship in order to enable him to carry the troops ; and at the Cape of Good Hope, one month later, entered into another charterparty, not under seal, to a similar effect, and made the specified alterations, and paid money and drew bills to meet the expenses necessary to the making of these alterations ; and the voyage was performed ; and in October the owner became bankrupt, having previously mortgaged the vessel to E. & F., who, upon its arrival in the Thames, seized it ; and the bills drawn by the master upon the owner were dishonoured, and the master, the plaintiff, as the drawer, was threatened with actions upon them by the holders ; upon a bill by the master against the assignees of the owner, and E. & P. (the Commissioners of the Admiralty on whose behalf the charterparties had been entered into, having paid the amount of the freight into Court), the House of Lords, reversing a decision of Lord Chancellor Campbell, and affirming that of Vice-Chancellor Sir W. P. Wood, held that in Equity the master was first entitled out of the freight earned under these charterparties to be repaid the sums advanced, and to be indemnified against the bills, and that the owner (or his mortgagee) was only entitled to the net freight after deducting these charges (2). 7. A master of a ship who, having authority to employ the Master load- vessel on freight to the best advantage, but not to purchase a cargo auaraity ,"' on the owner's account, and being unable to procure remunerative ■"'*^ ^ "^^'S? freight ; loaded the ship with a cargo of his own ; was, upon a bill liable to by the owners of the ship against the late master for an account, profits ofmle. and to charge the defendant with the profits of the cargo, and for an injunction to restrain proceedings at Law, or in the Court of Admiralty, (an interim injunction having been obtained,) at the hearing by Vice-Chancellor Sir W. Page Wood, held liable to account to the owners for all profits made by the sale of the cargo, and not merely for a proper freight ; and the general principle that (1) Bristow V. Whitmore, 9 H. L. C. 391 ; Joh. 96 ; 28 L. J. (Ch.) 801 (2) lb. 398 SHIPPING-SHIPMENTS. Pabt 1. a trustee cannot make a profit for himself by the use of the trust Sect, 15. ' property applies to an agent intrusted with a ship or other chattel for the purpose of using it for the owners' benefit (1). Sembh, mort- 8. In De Mattos v. Gibson (2) Vice-Chancellur Sir W. P. Wood taking posses- intimated his opinion to be that a mortgagee of a ship taking pos- fo'iise^hcr'"^'^ session of her is entitled to use her and sail her, and upon doing so becomes an owner within the meaning of the Merchant Shipping Act, 17 & 18 Vict. c. 104, and subject to all the liabilities conse- quent thereon ; and consequently that where a mortgagee of a ship is improperly restrained by injunction from using the vessel, the plaintiff giving the usual undertaking as to damages, the Court, in dealing with the undertaking, will take into considera-' tion the loss of profit arising from non-user. But where such an injunction had been granted against a mortgagee who had declared his intention to sell, and who had not suggested loss by non-user as part of his case against the injunction, the Court held that the loss of such profit was too speculative to be taken into account, and limited the amount of damage to the expense of keeping the ship, and, the security being insufiScient, the deterioration she had consequently suffered, together with interest in the meantime (3). And so, in another case (4), the same Vice-Chancellor intimated his opinion to be that a mortgagee of a ship has power under the 70th section of the 17 & 18 Vict. c. 104, to use the ship for the purpose of navigating her, as well as to sell the ship. But where a mortgagee claimed under a special contract which did not contemplate a sale by him until two months had elapsed after a demand for payment, Vice-Chancellor Sir W. P. Wood held, upon the construction of the agreement, and especially having regard to the circumstance that the ship would otherwise remain useless in that interval, that he was at liberty to use the ship ; and in such a case the circumstance of the mortgagee being registered as absolute owner is not conclusive as to the rights of the parties (5). Mortgagee of 9. Where a mortgagee of a steamship took possession of her steamship (1) Shallcross v. Oldham, 2 J. & H. (4) European and Australian Boyal C09. 3fail Co. v. Eoyal Mail Steam Packet (2) 1 J. & H. 79 ; 7 Jur. (N. S.) 28l>. Co. 4 K. & J. 676. (.■1) lb. ^5) lb. taking posses- SHIPPING-SHIPMENTS. 399 and used her for the purposes of a speculation which resulted PaktI. in a loss, and subsequently sold her -disadvantageously ; the seot. 15. Court of Appeal held, affirming a decision of Vice-Chancellor Sir "T ~[ '. John Stuart, that he nulst himself bear such loss, and be charged in speculation 1 1 • 1 • r> resulting in With the value of the vessel at the time he took possession 01 loss, must , . /• I \ ^Si*r loss, and lier (^Ij. be charged 10. The Merchant Shipping Acts Eepeal Act of 1854, 17 & 18 value at time rr o L ' of taking pos- Vict. c. 120, did not repeal, but only modified or limited the session. 9 & 10 Vict. c. 93, so far as the latter created liability for the loss of life by collision at sea ; and by the joint operation of the 9 & 10 By joint opeia- Vict. c. 93, and the 25 & 26 Vict. c. 63, the liability of the owner Yict. c. 93, and of a sailing vessel for loss of life occasioned by collision with ^^ another Court, be dependent upon relief to be given in this Court, niitted the . ' ^ . ^ - ^ ' depositor (en- or if the relief which is properly a subject for this Court cannot titled to the be given, except that which belongs to another jurisdiction be also hold^himself° given, this Court, to prevent multiplicity of suits, may give both ""j^g ^^ofg^*^ kinds of relief ; but if the relief which is sought in a suit be of different kinds, within the jurisdiction of different Courts, and independent of each other, although relating to the same transac- tion, the right in this Court to one kind of relief will not neces- sarily draw along with it the right to the other ; and therefore. Although part where ^the bill by a part owner of a ship against the master and entitled to an the other part owners prayed an account of the past earnings of ^'''^°?"'°^P*^* '^ . . . . earnings of the ship, to which the plaintiff was entitled, his right to that relief ship, the ship afforded no reason for going on to restrain the sailing of the ship restrained until security, according to the practice of the Admiralty Court, seourSygi^n, was given for the plaintiff's shares (2). And, semhle, the Court of according to prs ciic G 01 Chancery will not, in a case within its jurisdiction, interfere be- Adnmalty yond or otherwise than the Court of Admiralty would interfere, at the suit of some part owners, to restrain the sailing of a ship or control her management, there being no question as to the owner- ship, and the only dispute being as to the powers of the owners inter se (3). The Court will not restrain a ship from sailing on the This Court application of the part owner of the smaller ascertained share, regtrahi* a ship The proper application is to the Court of Admiralty to compel the *^^°™ filing =^t larger part-owner to give security, and this Court interferes only owner of where the shares are unascertained ; and the application to restrain This CourT^ is too late when the ship is on the point of sailing with emi- °^}^ interferes '■ ° where shares grants (4). And in Christie v. Craigi (5), Lord Chancellor Eldon unascer- tained. (1) Mangles v. Dixon, 1 Mac. & G. (3) lb. 437 ; 1 H. & T. 542. (4) IMUran v. Donal, 9 Ir. Eq. (2) GastelU y. Cook, 7 Hare, 89. Eep. 217. (5) 2 Mer. 137. 412 SHIPPING— SHIPMENTS. Part I. (without any doubt being expressed as to the jurisdiction to Chapter II Sect. 15. ' restrain a ship from sailing on application of a part owner) refused an injunction to restrain the sailing of a ship, upon the application of a part owner, where the ship was intended to sail the next day, and it did not appear upon the application that there were any circumstances to account for the plaintiffs delay in applying, when he had lain by till after charterparties were made, and exposing the Defendants to the risk of demurrage and other like conse- quences. 28. Where the plaintiffs (who were part owners of the ship), have founded their title to relief on their rights as charterers, and stated that they were managing owners, not for the purpose of relief as managing owners, but in order to protect their right as charterers, they are not entitled to an injunction founded merely on their right as managing owners, but can only be so on the foundation of their right as charterers (1). A mortgage of 29. In Thompson v. Smith (2) the Court held that a mortgage validL ^ ^^^ ^^ °f ^ ^■'lip ^^ ^®^ i^^^ form of the Registry Act being observed) was valid, and granted an injunction to prevent an improper indorse- ment on the certificate of registry of the ship (3). 30. In Lidgett v. Williams (4) it is queeried whether the Court will grant an injunction restraining a party from taking a ship to any other than a certain port, thereby in effect compelling him to proceed to such port. A bill cannot 31. A bill by several members of a shipping company, dissoluble be sustained . ,, , ii-i j.i by several ^* ^^J nioment, to prevent a vessel bemg sent on a voyage they members of a disapproved, cannot be sustained (5). The Vice-Chancellor, Sir panydis- Lancelot Shadwell, said that he was of opinion that the Court soluble at any i • r i moment, to ought to interfere between co-partners wherever the act complamed vessefbSng °^ ^^® ^^^ ^^^^ tended to the destruction of the partnership pro- sent on a perty, notwithstanding a dissolution of the partnership might not disapproved, be prayed ; but that in this case, however, he was not asked to interfere because the ship which was the subject of dispute was in danger of being lost, but because she was about to be sent on a voyage which some of the members of the company disapproved. (1) Lidgett v. Williams, i Hare, (3) lb. 464. (4) 4 Hai-e, 465. (2) 1 Madd. 395. (5) iViles v. Thomas, 9 Sim. 606. SHIPPING— SHIPMENTS. 413 So that, in effect, he was asked to enforce the evanescent authority Pakt I. of a certain number of persons, which authority ceased as soon as sbct. 15. ' any one of the members chose to rebel. That that act was in itself a dissolution; and, rebus sic stantibus, he had no sort of jurisdiction to interfere, and allowed a demurrer to the bill (1). 32. Where a timber merchant, in Sweden, agreed to sell certain timber to L. and K., and by the original contract the goods were to be delivered " free on board, payable by buyers' acceptance of seller's draughts, at six months from date of bills of lading, shipment to London," &c. ; and the seller was to provide ships at rates not exceeding a certain limit ; and it was subsequently agreed that the buyers should themselves charter a ship to convey the timber to London, and the buyers accordingly chartered a ship, and the goods were loaded on board of her ; and the bill of lading named the seller as the shipper, and the goods were deliverable in London to " order or assigns," and the seller indorsed the bill of lading in blank, and delivered it to the buyers in exchange for their accept- ance, and the buyers deposited the bill of lading to secure an advance ; and the ship was obliged to put into Copenhagen, and there, the buyers having stopped payment before the acceptance became payable, the vendor caused a notice of stoppage in transitu to be served on the captain; Vice-Chancellor Sir W. P. Wood held, that the transitus was not ended by delivery on board the ship, and that the notice was effectual. In this case, the proceeds of the timber having been claimed by the trustees of a creditors' deed executed by the buyers, L. and E., the bill was filed by the timber merchant charging that, by the exercise of his right of stopping the timber in transitu, he was entitled in Equity to a valid and subsisting charge for the money due in respect of the price of the timber, together M'ith the interest due in respect thereof, and praying a declaration accordingly, and for an injunc- tion to restrain an action to recover the proceeds of the goods (2). 33. In Goodhart v. Lowe (3) Lord Chancellor Eldon refused an injunction to restrain the sailing of a vessel containing goods sold to a person who had become insolvent, but over which the plaintiff (1) Miles V. Thomas, 9 Sim. 606. (2) Berndtson v. Strang, L. R. 4 Eq. 481 ; 15 W. E. 1168. (3) 2 Jac. & W. 349. 414 SHIPPING-SHIPMENTS. Pabt I. retained a right of stoppage in transitu ; and the Chancellor said *^Seo™15"' that there was no instance that he recollected of stopping in tran- situ by a bill in Equity, and that it would be dangerous for this Court to assume a jurisdiction to stop in transitu. But in Newton v. The Court EubhacJc (1), where the plaintiffs had shipped goods to the order of propercMe Messrs. D., and received a receipt for them from the mate in exercise juris- charge of the vessel, and before the vessel sailed, and before the diction by ° ■!•/• -mt t\ i stopping in bill of lading had been given to the plaintiffs, Messrs. U. became insolvent, having previously indorsed the bill of lading to H. for valuable consideration, without the knowledge of the plaintiffs; the Master of the EoUs, Sir J. Komilly, held, that the plaintiffs had not parted with the control over the goods, and granted an injunction to restrain the ship from sailing with the goods on board. 34. The mortgagee of a ship, by bill of sale, who has omitted to procure an indorsement thereof on the certificate of registry within thirty days after the return of the ship to port, as required by the Eegistry Act, the registered owner having after that time become bankrupt, has no equity, distinct from his legal rights, to restrain the sale of the ship by the assignees ; the title to the ship, after the bankruptcy, depending upon the application of the rule of law with regard to order and disposition (2). But in Mestaer v. Gil- lespie (3) Lord Chancellor Eldon — after stating that the proposi- tion stated in the judgment in Moss v. Charnock (4) went to this extent, that if a man sold a ship at sea, the vendee having done everything required by the then Ship Registry Act that could be done, but afterwards, before the arrival of the ship in port, an act of bankruptcy was committed by the vendor, the assignees under the commission of bankruptcy, not the vendee, would take the ship ; that the proposition was not so stated in terms, but that the language in which the judgment was expressed covered that case — said, that he, the Lord Chancellor, could not concur in that. A mortgage of In Langion v. Morton (5) it was held, by Vice-Chancellor Sir J. voyage, -with Wigram, that a deed of assignment by way of mortgage of a ship, tackle ^"^^^1^ together with her tackle and appurtenances, and all oil, head- and future, is matter, and other cargo, which might be caught or brought home good against ' ^ ' 6 6 d (1) 2 W. R. 339. (2) Campbell v. Thompson, 2 Hare, 140. (3) 11 Ves. 637. (4) 2 E.ist, 399. (5) 1 Hare, 549. SHIPPING— SHIPMENTS. 41 5 in sucli ship, was, as against the assignor, a valid assignment Part I. CjTtapter TT in Equity, as well of the future cargo to be taken during the gECT. 15. particular voyage, as of the cargo (if any) which existed at the judgment time of the assignment. The ship was on her voyage at the time creditor of ° . . . assignor suing of the assignment ; the parties sent notice of the assignment to fi. fa. sub- the master of the ship, and the master delivered up possession of ^^1"'^" ^' the ship and cargo to the mortgagees immediately after her return from the voyage ; the Vice-Chancellor held, that the equitable title of the mortgagees to the cargo was perfected, and could not be defeated by a judgment creditor of the assignor, who had after- wards sued out a writ oi fi.fa., and proceeded to take the ship and cargo in execution. 35. Where a vessel has become unable to proceed on her voyage without repairs, the owners of goods shipped on board the vessel may obtain the assistance of the Court to restrain the captain from selling the cargo. But before the Court will grant such assistance the plaintiffs must shew their title to the goods, and must settle with the captain for what is due to him, and must exonerate the captain from his contract to deliver the goods at their place of destination, and from all liability on the bills of lading (1). 36. Where certain consignments of oil were made from Columbo to certain persons resident in England, and during the voyage several of the casks in which the oil was contained leaked, and some part of the oil which so escaped was wholly lost, but the greater part was collected together, and sold in one mass by the captain, in the course of the voyage, for £750, and the consignees then agreed to share the proceeds in proportion to their respective losses ; the Court held, first, that a bill in Equity was sustainable by the consignees against the shipowner for an account of the oil lost and the oil sold ; and that several actions having been brought by the shipowner against the consignees to recover freight and average, they might all join in one bill against him for an account and equitable set-off (2). 37. Where, under a charterparty entered into by a broker, on After assign- behalf of the owner of a vessel, whose name did not appear on notice, freight (1) Rayne v. Benedict, 10 L. J. (N. S.) Ch. 297 ; 5 Jur. 598. (2) Jones v. Moore, 4 Y. & Coll. Ch. 351. 416 SHIPPING— SHIPMENTS. Part I. the charterparty, the freight was to be paid to the broker, on Chaptt'"ti. TT Sect. 15. behalf of the owner, and the owner assigned the freight to A., is no ign^er in ^^^° S^^^ notice of the assignment to the broker, but not to the the order and Lords of the Treasury, by whom the freight was to be paid ; Lord disposition of J ' J o J. > assignor under Chancellor Cottenham — affirroing a decision of Vice-Chancellor Sir ruptcy Acts. Lancelot Shad«ell, upon a bill praying, amongst other things, that the plaintiff. A., might be declared to be entitled under the assign- ment to receive the sum due for freight, and for an injunction to restrain the payment of the same to the assignees in bankruptcy of the owner — held, that after such assignment and notice the freight was no longer in the order and disposition of the owner, and consequently did not, on his subsequently becoming bankrupt, pass to his assignees, and that the money due on the charterparty was not in his order and disposition at his bankruptcy (1). Where a trader assigns a debt, the only person to whom notice of the assign- ment need be given, in order to vest a good equitable title in the assignee, is the party from whom the trader was to have received payment of the money ; in other words, the party holding the pro- perty at the order and disposition of the trader (2). The Court has 38. The Court of Chancery has jurisdiction to restrain proceed- restrain pro- i^gs in the Admiralty Court on a bottomry bond, with the view of Admi^l^ '^^ administering justice in a more convenient form, and it granted an Court on a injunction on that ground in a case where the proceedings in the bottomry . . x o bond. Admiralty Court were not framed in the most effectual manner to the attainment of their purpose, and where the questions, parti- cularly one of apportionment, were such as could be better tried in Equity (3). And in Glascott v. Lang (4), Lord Chancellor Cotten- ham, affirming a decision of Vice-Chancellor Sir L. Shadwell, held, that the Court possessed and would exercise jurisdiction over a bottomry bond in a case of fraud ; and would, for that purpose, restrain proceedings upon the bond in the Admiralty Court, by injunction ; and it is not necessary, for the purpose of supporting an interlocutory injunction of that kind, that the Court should find a case which would entitle the plaintiff to relief at all events ; it is (1) Gardner v. Lachlan, 4 My. & (2) lb. Cr. 129, affirming S. C. 8 Sim. 123 ; (3) Duncan v. WCalmont, 3 Beav. see S. 0. 6 Sim. 407. 409, affirmed on apjrcal, 3 Aug. 1841. (4) 8 Rim. 3.'-)8 ; 3 My. & Cr. 451. SHIPPING— SHIPMENTS. 417 sufficient if the Court finds, upon the evidence then before it, a Pabt i. case which makes the transaction a proper subject of investigation sect?^15. in a Court of Equity. And after long acquiescence under such an order the Court will not readily entertain an application for dis- solving it (1). 39. A bottomry bond executed by the master of a ship cannot a bottomry be supported against the owners, if the master, at the time of exe- ^,3 supported cuting the bond, had other resources for obtaining the necessary ^^ the master supplies for the ship (2). This was a suit by the first mortgagee resources. of a ship seeking to set aside or postpone a bottomry bond subse- quently granted by the master and part owner of the ship. 40. Where upon a bill by an underwriter of a policy of marine insurance (the ship insured having been lost) to restrain an action brought by the insured for the amount of the policy, and to have the policy itself delivered up to be cancelled, on the ground of deviation and delay in the voyage, and the unseaworthiness of the ship ; and on the trial a verdict was given for the plaintiff, defen- dant at Law, on the ground that he proved the deviation, but he failed in proving unseaworthiness, and he then brought the suit to a hearing without evidence as to the unseaworthiness, insisting that the policy ought to be delivered up; the Court held, that the whole case turning upon a mere question of fact, and there being no fraud, as there would have been had there been a representation of seaworthiness upon insuring, there was no equity, and the bill was dismissed, with costs (3). 41. Where the plaintiffs advanced several sums of money to S., M., and W., on the security of shipments coming to them as return remittances from their correspondents in Hayti, which shipments they directed the Haytian house to consign to the plaintiffs, and the Haytian house was informed of the contracts, and promised the plaintiffs to make the remittances accordingly ; and in June, 1842, a cargo of goods was prepared by the Haytian house as return remittances, and they directed the plaintiffs to insure a part of the cargo on the account of S., and informed W. that a part of the cargo was intended for him, which W. communicated to the plain- (1) Glascott V. Lang, 8 Sim. 358 ; 3 Mj. & Ci-. 453, n. 3 My. & Cr. 451. (3) Thornton v. Knight, 16 Sim. (2) Dohson v. Lyall, 2 Ph. 323, n. ; 509. 2 E 418 SHIPPING-SHIPMENTS. Pabt I. tiffs ; and the resident partner in the Haytian house died in Sect. 15. June, 1842, after the cargo had been shipped, but before it was consigned, and his administratrix consigned the cargo to B. in London, under whose orders it was sold, and by whom the proceeds were received in December, 1842 ; and S. & Co., creditors of the Haytian house, on the 29th of August, 1842, attached by foreign attachment, according to the custom of London, the goods of the Haytian house in B.'s hands ; and by a letter dated the 7th of Sep- tember, 1842, the surviving partner in the Haytian house directed B. Where rights, to hold the cargo for H., M., & W. in certain parts ; on a biU and equitable, the uiotion to restrain the proceedings of S. & Co. against B. in the entitled to the ^°^^ Mayor's Court, the Court held that the right of the plaintiffs, aid of this if any, was an equitable and not a legal right ; that the plaintiffs Court and to ■i/.i/^ -i-Tni restrain pro- were entitled to the aid of the Court m the tnal of the right, and the iKifd ™ that the proceedings in the Lord Mayor's Court should be restrained Mayor's Court by injunction (1). 42. Where a ship belonging to the defendants, registered in the port of London, sustained serious damage on her voyage to Xew Zealand, and on the arrival there was surveyed and pronounced not seaworthy, and the master was unable, either by loan or bottomry, to raise money for her repair, and he at length sold the ship to the plaintiffs, and on receiving payment of the purchase-money by bill of exchange on London, executed to them a bill of sale of the ship ; and the plaintiff repaired the ship and sent her to England with a cargo, and the defendants refused to ratify the sale or consent to the registry of the ship in the plaintiffs' names ; and on the arrival of the ship in the port of London the defendants put several men on board to take possession of the ship and cargo for them, and the plaintiffs thereupon applied for an injunction to restrain the defendants from interfering with the ship, or removing her out of the jurisdiction, and for a manager and receiver of the ship and Though plain- cargo ; the Court held, that the plaintiffs had no equitable, as had no^e^quita- distinct from a legal, title to the ship ; and inasmuch as their title ship^eVen- (^^ ^^^^^ ^^^ acquired any) was a purely legal one, and the case of titled (here) to interference, if wrongful, was therefore a mere trespass, the Court relief in i n • r. • /■ <■ i r ' respect of a could not interfere m favour of the plaintiffs by injunction. But that the plaintiffs, according to the case made on the motion, if (1) Cotesworth v. Stephens, 4 Hare, 185. SHIPPING— SHIPMENTS. 419 they failed at the hearing to establish their right to. the ship, Part I. would be entitled to equitable relief in respect of the bill of sect. 15. exchange given for the purchase-money, and that they were ^^^^^^ ^^^^^ entitled to have the trial of the legal right put in a course for by master for determination, and to have the property protected m the mean- time; and, semhle, in such case, independently of the relief in respect of the bill of exchange, if engagements had been contracted of which the conduct of the defendants would prevent the fulfil- ment, and if there could be no adequate compensation to the plain- tiffs in damages, or if the defendants were about to carry away or destroy the property, the Court might interfere by injunction (1). 43. The lien which exists for general contribution upon the The lien for goods of each freighter to individual loss by property thrown over- fribution to board for the safety of the ship, under the right of the master to jog^'^jy^^- require security frotn each for his proportion of the loss, was, in perty thrown ' •' ... overboard for Hallett V. Bousfield (2), held not to be extended to an injunction safety, does against the master and shipowner restraining them from delivering j.g3jj.aj^ the cargo, receiving the freight, and parting with any share of the ^ehvery of ship. But the mode of adjustment is not confined by usage to ing freight, and parting arbitration. with share of ship. 44. The assignee of a particular freight who gives to the charterers Assignee of notice of his security, is entitled in priority to the general assignee of freight, gWng all freight to be earned by the same ship, who is prior in date, but °°+'+i' J^ gives no notice, and takes no steps to enforce his mortgage until priority to (.1 .,.,.■. , general prior alter the particular assignee has given notice to the charterers, and assignee of the cargo has been in part discharged. And where A. took an ^^j. ^yfn™ assignment of a ship by way of mortgage, which was duly registered "^°^^'^- at the custom-house in 1862, and which referred to an assignment of all freights and earnings of even date given as an additional security, but not registered, and, subsequently, B. took an assign- ment by way of the freight of a particular voyage, and A. and B. were both ignorant of each other's claims, but B. gave notice of his claim to the charterers before the termination of the voyage, while A. did not give notice of his claim till after the ship had broken bulk ; Vice-Chancellor Sir J. Stuart — upon a bill praying that it might be declared that the plaintiff B. was entitled to a charge on the freight, payable under the charterparty, in priority (1) Ridgway v. Roberts, 4 Hare, 106, (2) 18 Ves. 187. 2 E 2 420 SHIPPING-SHIPMENTS, Pabt r. to the claims of the defendant A., and that the charge might be Sect. 15. " enforced, and the freight secured for the plaintiff's benefit under the decree of the Court, and that the other defendants, the charterers, might be restrained from paying the freight to any other person than the plaintiff, and for a receiver, and (by amend- ment) that if the Court should be of opinion that A.'s securities had priority over the plaintiff's, that the plaintiff might be at liberty to redeem A. — held that B.'s claim on the particular freight must prevail over the general claim of A. (1). But Lords Justices Wood and Selwyn, upon appeal, held (reversing the decree of Vice-Chancellor Stuart) that A., as mortgagee of the ship, having taken possession of her before any freight had become payable from the charterers to the owners, was entitled to the freight in priority to B. 45. "Where A. having ordered goods from B.; a firm at Calcutta, through C, their agent in this country, received an invoice of the goods, with a notice that B. had drawn upon him for the price at six months, and on calling at C.'s office, A. was met by C.'s messenger, who handed to him for his acceptance the bill of exchange drawn upon him in respect of the goods, and the bill of lading which was pinned to the bill of exchange ; and A. accepted the bill of exchange, and afterwards deposited the bill of lading with E. as a security for an advance, together with a policy of insurance upon the goods effected by himself in his own name ; and C. having declined to part with the original policy, on the ground that it included other goods besides those purchased by A. ; and A. having become bankrupt, and unable to take up his accept- ance, the goods were claimed by B. and C, on the ground that the bill of lading had been improperly pledged, having come into A.'s hands irregularly, and without their knowledge, and contrary to an alleged custom amongst East India merchants not to part with the bill of lading of goods until the vendee has taken up his acceptances on account thereof; Vice-Chancellor Sir W. P. Wood held, that the alleged custom of trade was merely exceptional (2), and was not established by the evidence as being the usual course of business ; (1) Broivn v. Tanner, L. E. 2 Eq. (2) v. Ourney v. Behrend, 3 E. & 806 ; 12 Jur. (N. S.) 791 ; 14 W. R. B. 622, 630 ; per Crompton, J. 911 ; L. R. 3 Oh. 597. SHIPPING— SHIPMENTS. 421 and that the title of E. as londfide assignees for value must prevail Pakt I. over any claim by the unpaid vendors, the bill of lading having seot. in. passed to the plaintiffs, E., their title was sufficient, and the Vice- Chancellor said they were entitled to the relief prayed (1). In this case the plaintiffs filed their bill praying to restrain the de- livery of linseed ex Ganges otherwise than to the plaintiffs or their order, and to restrain any interference to prevent the plaintiffs from obtaining possession of the linseed, for the appointment of a receiver, a sale of the linseed, and application of the proceeds in satisfaction of plaintiffs' claim, and relief in damages and costs (2). 46. Where the owner of a ship mortgaged her to G. for £1200, and the mortgage was on the same day transferred to B., and the mortgage and transfer were registered ; and in October, 1863, G. paid B. £1200, and B. signed a receipt indorsed on the mortgage that the £1200 was received," in discharge of the within- written security," and the usual entry of discharge was made in the registry ; and after a year B. retransferred to G. this mortgage, and the registrar wrote in the margin of the register that the receipt had been made by mistake, a retransfer only being intended ; and G. then transferred the mortgage to the appellants by way of security, which transfer was registered; and in March, 1865, the moneys advanced were paid off, but no retransfer executed, and the mort- gage remained in the appellants' hands ; and in May, 1865, the owner of the ship mortgaged her to G. by a deed registered on the following day, and this mortgage was transferred to the plaintiff in November, 1865; but the transfer was not registered till July, 1866 ; and in the meantime, iu March, 1866, an agreement which never was registered was entered into between G. and the appellants that G.'s original mortgage should be a security for the balance due from G. to the appellants ; the Court of Appeal held, affirming the decision of the Master of the Eolls — upon a bill seeking for a - declaration that the plaintiff was entitled to the first charge on the ship, for an account of what was due on his security, for the sale of the ship and for the payment to him of the proceeds of the sale, and of the freight moneys, and for an injunction restraining the appellants from selling the ship— that the plaintiff's security had priority over tliat of the appellants ; that G.'s first mortgage was (1) Coventry v. Gladdone, L. B. 4 Eq. 493 ; 16 W. B. 304. (2) lb. 422 SPECIFIC PEEFOEMANCB, Pabt I. discharged by the entry of discharge, and could not be revived by Chapter II. ^, ^ •', , '' , . , \ , . , . i , Sect. 15. the memorandum ; that^the receipt had been given by mistake ; and that the new bargain between G-. and the appellants in March, 1866, not being registered, was of no effect against the plaintiff (1). Guardian of 47. The guardian of a registered infant owner of a ship has no iufant^owner power Under the Merchant Shipping Act, sect. 99, to sell or mort- power'to miU° ^^^® ^^^ ®^^P *^° behalf of the infant ; and upon a bill by the next or mortgage friend of an infant owner of a ship against the parties assuming to ship on behalf , •, , . , . of infant. be mortgagees and their sub-mortgagees, praying an account, and that the mortgagees should not be allowed to charge for their dis- bursements in respect of the ship (for which the mortgage had been made) any greater sum than a sum equivalent to 'the difference between the value of the ship at the time she was taken possession of by the defendants and the amount for which the ship was insured (the ship having been lost) ; and that the other defendants, sub-mortgagees, might be restrained from paying to the original mortgagees any money which should come to their hands in respect of insurance upon the ship ; Vice-Chancellor Sir R. Malins held, that the security upon the ship was invalid, and that the defendants were not entitled to any other lien upon the ship, or the proceeds of the ship, or the policy moneys which had been substituted for the ship, than the outlay which had been advanced by the original mortgagees for necessary repairs, and gave no costs on either side (2). Sect. 16. Speeifie Performance. 1. Where a gentleman, who had a valuable collection of historical books, paintings, &c., had applied to auctioneers to undertake the sale of the same, and to advance him money on account of the proceeds, and an agreement had been come to in writing between the parties, by which, in consideration of the advance, the owner of the collection agreed to deposit the ^hole of the collection with the auctioneers for sale, and a poirtion had been deposited with and (1) Bell V. Blyth, L. E. 4 Ch, 136 ; (2) Michael v. Frtpp, L. R. 7 Bq. L. R. 6 Eq. 201 ; 38 L. J. (Ch.) 178 ; 95 ; 38 L. J, (Ch.) 29 ; 19 L. T. (N. S.) Hi W. R. 885; 17 W. E. 194; 19 L. 257; 17 W. li. 23. T, (N. S.) 662. SPECIFIC PEEFOEMANCE. 423 sold by them, but realised much less than was anticipated, and did Paut I. not amount to more than one half of their advance ; and upon his sect. 16. refusal to deposit the remainder of the collection a bill was filed by ~ the auctioneers against the owner, praying specific performance of the agreement, and for an injunction to restrain the selling or removing of the remainder of the collection, to which a demurrer was filed for want of equity ; the Master of the Eolls, Sir J. Eomilly, held, that the Court would not compel the performance of a contract for an agency, and that the advance of the money was not on the security of the property mentioned in the contract, and that the Court would allow the defendant a loeus foenUentim ; and that, subject to the satisfaction of the auctioneers' claim for what they had done (which was a matter to be decided in a Court of Law) the defendant had not, by the agreement, lost the control over that portion of his property which he had retained (1). 2. Where the plaintiffs employed the proprietors of a dock to alter a ship, and an agreement provided for the alterations and for payment upon certificates of an engineer, the added parts to be the property of the the owners, without prejudice to any lien for unpaid instalments ; and if the proprietors refused to complete, the company to be entitled to the parts added to the ship, and to articles in the yard intended for the alterations, the owners to pay the proprietors an amount ascertained by arbitrators to be the value of the articles, and in case of refusal and failure to complete, the owners to enter the yard, and employ workmen to finish the vessel; and before the alterations were completed the proprietors became bankrupt, and B. the trustee of the bankruptcy, had offered the dock for sale ; upon a bill against B. praying a declaration that the plaintiffs were entitled to use the dock and complete the vessel, and to restrain the defendants from selling the dock, &c., Lord Eomilly, allowed a demurrer ; he said he thought it impossible to give any relief, the agreement being one which from its nature could not be specifically enforced, the general principles being that the Court could not enforce specific performance of a contract by piecemeal (2), (1) Oliinnoch v. Sainsbury, 6 Jur. (2) Merchant Trading Company v. (N. S.) 1318 ; 30 L. J. (Ch.) 409. Banner, 19 W. K. 707 ; L. R. 12 Bq. 18. ( 424 ) CHAPTEE III. Incidents of Property (Eeal and Personal). Part I. Sect. 1. Light — Light amd Air. 1. In cases of obstruction of ancient lights, where the Court is called upon to exercise its power of mandatory injunction, ordering the defendant to restore things to the condition in which they were before the old building was removed, each case must be decided upon its own peculiar circumstances (1). And the jurisdictiou of the Court to interfere by way of mandatory injunction should be exercised with .the greatest possible caution ; and, semble, should be confined to cases where the injury cannot be estimated and suf- ficiently compensated by a pecuniary payment. Therefore in a suit instituted to restrain the defendants from proceeding with the erection of a building which it was alleged obstructed ancient lights. Lord Chancellor Westbury (reversing a decision of the Master of the Kolls, Lord Eomilly) refused to grant a mandatory injunction, on the ground that the whole of the prejudice and damages to the plaintiff's premises by the erection of the defen- dant's buildings might be abundantly compensated in money. And the defendant having admitted that some damage had been done to the plaintiff by obstructing his light and air, but alleging that the amount of injury was exaggerated, the Court directed that instead of an injunction an inquiry should take place before itself to ascertain the amount of pecuniary damage (2). No injunction 2. An injunction will not be granted to restrain the constmction obstruction of of works obstructing lights, &c., where the title to the property pMntiff has soiiglit *« be protected has not yet been accepted by the plain- not aoceiited title. (1) Istiihurg v. East India House Jiir. (N, S.) 221 ; 33 L. J. (Ch.) 392; Estate Co., 3 Dc G. J. & F. 2G3; 10 9 L. T. (N. !S.) 625; 12 W. E. 450. (2) 11,. LIGHT— LIGHT AND AIE. 425 tiff (1). Vice-Ohaiicellor Sir J. Stuart, in this case, said that the Pakt i. Ofiapter III plaintiff in his bill stated that he had not accepted the title, and seot. i. . that by this he said in effect, that he did not pledge himself to accept a conveyance of the property, that this was fatal to the motion, and that if the injunction were granted, the plaintiff might next week reject the title altogether, and that this would not be consistent with the dignity of the Court, and the motion was refused with costs. 3. The foundation of the jurisdiction in Equity to interfere by The founda- injunction is the existence of an injury to property of such a nature jurisdiction by as to render the property in a material degree unsuitable for the }.°-'e™xi'sten^ purposes to which it is applied, or to lessen considerably the enjoy- of injury ren- ment of that property. Such an injury is considered by the Court perty liusuit- ,to be incapable of compensation in damages (2). But, senible, objects, or where the abridgment of light complained of does not materially g^gy'JJ^gli. ^f interfere with the comfort of the persons complaining, and does property. not materially diminish the suitableness of the premises for the present purposes to which they are applied, the "Court has no jurisdiction to interfere by injunction on the ground of a diminu- tion of light which, having regard to a future possible destina- tion of the property, may materially diminish its value (3). And An injunction it is not in every case in which an actioa can be maintained for the in every case obstruction of ancient lights that an injunction will be granted by J^'jF® ^^^ ^^ a Court of Equity, but the standard of the amount of damages that maintained for . obstruction of calls for the exercise of the jurisdiction has not been defined with ancient lights. any certainty; and in order to justify the interference of the Court by injunction the obstruction, of the ancient lights of a manufactory, or of business premises, must be such as to render the building to a material extent less suitable for the business carried on in them ; but such obstruction must be one which diminishes the value of the premises for the purposes for which they are used at the time ; and the fact that the obstruction may render the premises less fit Obstruction for some other purposes to which they may by possibility be render prJ- applied at a future time cannot be taken into consideration ; fOT^other pur- therefore where the owners of premises used as the counting-house P°^''^ '" ^^^''^ ° tliey may be (1) Heath v. Uaydew, 13 W. E. 199. 688 ; 10 L. T. (N. S.) 635 ; 33 L. J. (2) Jackson v. Newcastle {Duhe), 3 (Ch.) 098. Do G. J. & S. 275 ; 10 Jur. (N. S.) (3) lb. 426 LIGHT— LIGHT AND AIE. Part I. of a grocer's shop, applied for an injunction to restrain the erection °Seo™1. " of a building which would obscure an ancient light ; and the Court, applied at a ^^ing of Opinion upon the evidence that the intended erection future time, would not materially interfere with the enjoyment of the premises cannot be con- . . . „ .... sideied, as a counting-houfc, so as to require its interference by injunction ; held, that the possible future injury, by rendering the premises less fit for a business requiring more light, was not a ground for such A Court of interference (1). But in Wilson v. Townend (2) it is laid down £ to pre-" by Vice-chancellor Sir E. T. Kindersley that a Court of Equity vent injury in interferes by injunction to prevent an injury in respect of a legal legal right, right, simply on the ground of the damage it produces to property, ground "of and that the jurisdiction of the Court is not confined to restraiaing damage. injury to the enjoyment and comfort in the occupation, and that therefore it is not necessary that a party iiling a bill for an injunc- tion to restrain such an injury should be in the actual occupation of the property, nor is it necessary that he should continue to occupy it. 4. A Judge sitting in Equity is bound to pronounce his judg- ment according to the evidence ; hence, to decide a case upon con- clusions of fact derived from ocular inspection is a course which a judge in Equity cannot, in ordinary cases, be recommended to adopt (1). Any alteration 5. Any alteration of ancient lights, although not prejudicial to lighte gives the owner of the servient tenement, gives him a right to obstruct owner of ser- them (3) : but where the owner of a dominant tenement in the vient tene- ^ ' ment right to course of rebuilding materially altered his ancient lights, and But if altera- opened new lights upon an additional flioor after communication tion is made ^jt]^ the owner of the servient tenement, and with the knowledge with know- . . ° ledge and and under the inspection of the surveyor of the owner of the acquiescence servient tenement, but without any express agreement ; the Court aea°vienTtene- ^eld, that in Equity the lights, as altered, could not be interfered ment, Court with, and granted a perpetual iuiunction : and that the owner of will restrain . his interfer- the servient tenement could not raise a party wall and build upon his own property so high as to render the new buUdings less (1) Jackson v. Newcastle {Duke of)^ 1109. 10 Jur. (N. S.) G88 ; 10 L. T. (N. S.) (3) Catching v. Bassdt, 32 Beav. G35 ; 33 L. J, (Ch.) 098. 101 ; 9 Jur. (N. S.) 590. (2) 1 Dr. & Sm. 321 ; 6 Jur. (N. S.) ence. LIGHT— LIGHT AND AlE. 427 accessible to light and air than they were at the completion of the Pabt I. Chapter III. works (1). Sect. 1. 6. Where lessees covenanted with the lessor that they would within four years " rebuild, on the site of a messuage, in a sub- stantial workmanlike manner, a new house and premises suitable for merchants' and dealers' counting-houses and sale rooms," and that "such of the windows and lights in the new premises as occupied the site of ancient lights should be considered and have all the rights of ancient lights," and also covenanted that the right of carriage way through a court, into which there was a back entrance from the premises, should be preserved; and the old house had been pulled down, and the lessees were erecting a main back wall of the new premises partly upon land not the subject of the demise, and were preparing to block up the carriage way at a distance of eight feet easterly from the entrance of the house into the court; the Lord Chancellor held, reversing a decision of Vice-Chancellor Sir W. P. Wood, that the word " rebuild " did not create the obligation of erecting the new house on the same site, nor in the same style and elevation as the old building, and that if otherwise, such construction was rebutted by the language that fol- lowed the word " rebuild ;" and that the covenant respecting ancient lights was limited to such rights, and to such estate and interest as the lessees possessed in the adjoining land, and could affect only such lights and windows in the new house as might look towards buildings to be thereafter erected on land belonging to the lessees ; but that it might be equally well applied to a new back wall which was erected not precisely on the site of the old back wall, as to one erected wholly on the same site (2). 7. Where an offer is made which will have the effect of putting Where an a plaintiff in as favourable position as before the erection of the put plaintiff building or obstruction complained of, the Court ought not to ™ ? position '■ ° as favourable interfere to compel the pulling down of such building or to restrain as original .. , , . /o\ one, Court its completion (3). ought not 8. Where a plaintiff filed a bill to restrain an obstruction to '°*'''^^^''^- lights alleged to be ancient, and the defendant denied that they (1) Catching v. Bassett, 32 Beav. (2) Low v. Innes, 10 Jur. (N. S.) 101 ; 9 Jur. QS. S.) 590. 1037 ; 11 L. T. (N. S.) 217. (3) lb. 428 LiaHT— LIGHT AND ATE, Pabt I. ^^ei'e ancient lights, and on a jury trial some were found to *^°Seot"/^'' be ancient, and the rest to be new or altered in position within twenty years ; on the plaintiff submitting to an order to block up the new and restore the altered windows to their old position, tlie Court granted an injunction, but the plaintiff was ordered to pay the costs of the suit, other than those of the issues (I). And in Cherriiigton v. Ahney (2) it was held that where an old house is pulled down in which were aocient lights, and a new oue is built, the lights in the new house must be in the same place and of the same dimensions, and not more in number than the lights in the There is no old house. But in Tafling v. Jones (3), where A. was the owner obstructing ^^^ occupier of a house of three storeys which had an ancient ancient lights, ^iiyJow on each floor, and he altered the windows in the two lower even tuongh new lights floors, leaving the window in the third floor unaltered, and also be obstructed built two new storeys to his house, with windows intended to be Xstruoting permanent, but did not intend by making these alterations to the ancient abandon any privileges of his ancient windows, and B., the owner ones. '■ ° of adjoining premises, could not obstruct the new windows in the upper floor without also obstructing the old windows, and he, B., built on his own land a wall which had the effect of obstructing all A.'s windows ; and A. afterwards blocked up his new windows, and sued B.for continuing the obstruction of the wall, which the defen- dant refused to remove ; the House of Lords held, that B. had not at any time the right to build a wall which would have the effect of obstructing the ancient lights in A.'s house, although the new The right to windows could not otherwise have been obstructed, and that the v^ht^^ince the I'^g^* ^0 ^"^ ancient light since the Prescription Act (2 & 3 Will. 4, Prescription c. 71) depends upon the statute, and does not rest on any pre- Actdepends \. . . n .■ . .■ , ■ u i.' 1 on that statute, sumption 01 a grant or a faction ot a license having been obtaine 1 presumption fi'om the adjoining proprietor, overruling Benshaiv v. Bean (4) of grant or g^^^ EutcMnson V. Govestoke (5). licence. ... To restrain 9- -^ plaintiff Coming to the Court for an injunction to restrain wUhtight'° ^^^ erection of new buildings by his neighbour on the ground ■and air, the pf interference with his light and air, must shew that his own residence , must bo residence will, by the obstruction, be rendered substantially less (1) Wcatherlry v. Ross, 1 H. & M. (3) 11 H. L. C. 200; 31 L.J. (C. P.) ;;i:). ■ 3-12. (2) 2 Vern. G16. (4) 18 Q. B. l!q. 112. (5) 9 C. 11. I!cp. (N. S.) 8(!3. LIGHT— LIGHT AND AIR. 429 comfortable for purposes of occupation. But though an injuuction Pakt i. be refused in such a case, the Court, if it appear that damages have g^d. i. been sustained, may, if it think fit, exercise the jurisdiction con- ^^^^^^^.^^j T ferred by 21 & 22 Vict. c. 27, and direct an inquiry as to damages (1). substantially ■' T. J ,1 cf- '^^^ comfort- But the Lords Justices held, differing from Vice-Chancellor Sir able for W. P. Wood on the point of acquiescence, that there had been °°°"P^ no such acquiescence as would have deprived the plaintiff of his right to relief at the hearing of the cause, and that a delay of five weeks after knowledge of an intention to build so as to obstruct ancient lights was not, under the circumstances, such acquiescence as to disentitle the plaintiff to relief; and, semhle, a stronger case of acquiescence is requisite to debar a plaintiff from relief at the hearing of a cause than to disentitle him to an interlocutory injunction ; but the Lords Justices refused an injunction here, on the ground that the plaintiff had not shewn that his residence would be rendered substantially less comfortable for the purposes of occupation by interference with his light and air. In this case the plaintiff and defendant occupied adjoining houses, and the defendant intending to erect a glass room as a photographic studio on a portion of his premises, called on the plaintiff and informed him of his intention, pointing out the situation, but this was done after dark on a spring evening. He also said he had a plan of the erections, and a contract for their performance. The plaintiff made no objection, being, as he alleged, under the impression that the new buildings were to be in a different situation, but never made further inquiries, nor asked to see the plan ; the defendant com- menced his preparations eleven days afterwards, and about a week later commenced the actual building. About a week after this the plaintiff discovered his mistake as to the position of the new buildings, and four days later wrote to the defendant to desist, and threatened proceedings in the Court of Chancery if compliance were refused ; and filed his bill eight days afterwards, and when the buildings were nearly complete. 10. Where an owner of a house, in which there were ancient lights, rebuilt it, and in so doing altered the position of some (1) Johnson v. W^/att, 2 De G. J. Northern Raihv. Go. 10 Jur. (N. S.) & S. 18 ; 33 L. J. (Ch.) 394; 9 Jur. 191. (N. S.) 1333 ; see Swaine v. Great 430 LIGHT— LIGHT AND AIE. Pabt I. of the ancient windows, and also opened new windows, and the Seot. 1. defendant proposed to build so as to obstruct both the new and ancient windows ; Vice-Chancellor Sir W. P.Wood held, that as he could not possibly obstruct the new windows without at the same time obstructing the ancient lights, the owner was not entitled to On closing an injunction (1) ; but that, on undertaking to close up the windows "e^tortog" ^^d to restore the ancient lights to their original position, he ancient lights ^yguld be entitled to an injunction (2). And if the owner of a tene- position, an ment has windows looking upon the premises of another, he caimot injunction . , . . , , . ... will be increase their size or number, or claim more extensive nghts (3). owner^of ° ^^^ where a landlord who had granted a lease of premises, including dominant ancient lights and appurtenances, to A., in consideration of improve- ments which had been made by A. in the premises leased (which improvement included new lights, which would be referred to under the word "appurtenances"), granted a lease of the adjoining premises to B., and B. was building so as to block up the lights of A. ; Vice-Chancellor Sir E. T. Kindersley held, that the landlord could not have blocked up such lights, and that his lessee, B., could stand in no better position ; and granted an injunction as against B. during the continuance of A.'s lease, and although he had not made an interlocutory application (4). Translucent 11. In a case where an occupier of a house and grounds, in witii louvres London, erected a translucent screen of glass thirty-five feet high, suclTan"'* ^^^ about thirty feet distant from the windows of the plaintiff's obstruction of dwelling, having louvres or slanting openings to admit air, Vice- light and air '^ , ° ... as entitled to Chancellor Sir J. Stuart refused an injunction, not considering this such an obstruction of light and air as the Court would interfere with by injunction (5). Sect. 3 of the 12. Sect. 3 of the 2 & 3 Will. 4, c. 71, limiting twenty years as AoT^retro- the period for acquiring an indefeasible right to the access and use th^^ealement °^ ^^S^^> ^^ retrospective, so that such an easement may be acquired of light and by virtue of enjoyment prior to the passing of the Act (6) ; and acquired by twenty years' enjoyment prior to Act. (1) Weatherley v. Ross, 32 L. J. (4) Davies v. Marshall, 1 Dr & (Ch.) 128. Sm. 557 ; 7 Jur. (N. S.) 720. (2) lb. (5) Radcliffe v. Duhe of Portland, (3) Cooper v. Iluhhuck, 30 Beav. 3 Giflf. 702 ; 8 Jur. (N. S.) 1007. IGO ; 7 Jur, (N. S.) 457. (0) Simper v. Foky, 2 J. & H. 555. LIGHT—LIGHT AND AIR. 431 a union of tlie ownership of dominant and servient tenements for Pakt I. diiferent estates does not extinguisli an easement of this description, g^.^. i. but merely suspends it so long as the union of ownership continues, „ j^^ „ and upon a severance of the ownership the easement revives ; and ownership of ,., „,.i... . T . dominant and where a right to an easement of this description is acquired against servient tene- an owner of a leasehold interest in the servient tenement, it is f^^nt estates' acquired also against the owner of the reversion (1). merely sus- easement of ancient lights; upon severance — easement revives. Such an easement acquired against lessee is acquired against reversioner. 13. Where an obstruction to an ancient light had existed more than twelve months, but a promise had been given to remove the obstruction, and twelve months had not elapsed from the date of that promise, before proceedings were taken ; the Court held, that there had not been such an interruption of the enjoyment as would deprive the owner of the light of his remedy (2). 14. A tenant from year to year may file a bill for an injunction Tenant from to protect an easement consisting of the right to the access and entffled'to^an^ use of light, but the iniunction will be limited to the period of injunction to ° ■' '^ protect ease- continuance of his tenancy (1). m™* of ancient light, limited to the period of his tenancy. 15. A tenant under an agreement for a lease is not entitled to Tenant under an injunction to restrain his lessor from obstructing the ancient le^'sTramot''^ lights on the premises comprised in the agreement, unless he also restrain " o ' obstruction to ask to have the agreement specifically performed, and a motion by ancient lights the tenant for an injunction was refused (3). unlesf he also 16. Where the Court considered that it ought to refuse an in- ^^formanoeof junction to restrain the obstruction of ancient lights on the ground t'^'^ agree- of delay, it retained the bill, with liberty to proceed at Law (4). 17. The owner of an ancient light being a lessee whose lease Lessee under has expired during the obstruction, but who has agreed for a ^urfng^''"™^ renewal, can still maintain his suit for an iniunction to protect his obstruction of ancient light, right to the access of light (5). who has 18. Where a plaintiff filed a bill for an injunction to restrain the r^etal.Ts'' erection of an addition to the house adjoining one of his own, so as f^wtion '^^ to interfere with his windows, which he alleged were ancient lights, (1) Simperr. Foki/, 2J.&E.655. (4) Cooper v. Euhluch, 30 Beav (2) Gale v. Abbot, 8 Jur. (N. S.) 160; 31 L. J. (Oh.) 123. 987, V. pi. 31, j90si. (5) Gale v. Abbot, 8 Jur. (N. S.) (3) Fox V. Purssell, 3 Sm. & G. 242. 987. 432 LIGHT— LIGHT AND AIE. Paut I some of which had been recently enlarsred, and some new lights Chai'tekIII. , 1 Seot. 1. had been opened, and an interim order had been granted; upon a motion for an injunction the Court gave him liberty to bring an action, but allowed the defendant to proceed with the new building to a specified height, on his undertaking to abide by any order the Court might make as to pulling down any addition which might be made to the erection complained of by the bill, and also undertaking to admit at the trial that the erection had been carried to such specified height (1) ; and the Vice-Chancellor, Sir R. T. Kindersley said, under the circumstances disclosed by Bm- shaw V. Bean (2), he should not take upon himself to decide the legal question, whether when the ancient windows have been en- The owner of larged or altered the i-ight of easement is lost (3). In Turner v. tenement can- Spoonev (4) the same Vice-Chancellor in substance lays down from mode of *^® doctrine that the principle as to ancient lights is, that the user sub- owner of the dominant tenement cannot depart from the mode of stantially. _ "• _ user substantially, that he cannot change the position of his Hghts, nor increase the original aperture into which windows have been put, but that if he has in using his right contracted to any given extent the original opening by windows of antique and clumsy structure, he may, without affecting his right, replace those windows by windows of an improved structure that let in more But owner of light and air. But if a party possesses ancient lights, and, without nmylnore^ase ^ enlarging the apertures, can acquire an increased degree of light K^litandair ^f^^ ^j,.^ j,g jg entitled to such acquirement without giving a right enlarge aper- to the occupier of the servient tenement to say there is a new easement ; but if he increases the dimensions of the apertures, the occupier of the servient tenement has a right to object; and if, in asserting his right, he interferes with the passage of light and air, he is justified in doing so (5) ; therefore where a plaintiff possessed of ancient lights substituted new ^^ indow frames, with single plate- glass panes opening internally, for the old ones, consisting of small panes with lead frames, opening only partially, and in consequence of this alteration more light and air were let in, although the (1) Wilson V. Townend, 1 Dr. & (3) ^^ec? vide pi. 8, ante. Sni. 321; Jur. (N. S.) 1100. (4) 1 Dr. & Sm. 467; 30 L. J. (2) 18 Q. 15. 112. (Oh.) 801. (5) Vnh pi. 8, ante. LIGHT— LIGHT AND AIR. 433 apertures were not increased ; and the defendants, whose premises Paet I. were adjoining, objected to this alteration, on the ground that it was sect. i. a new easement and interfered with the privacy of their premises, and they proceeded to erect a framework, glazed with opaque coloured glass, within a few inches of the plaintiff's ancient lights ; the Court, at the hearing, granted an injunction to restrain the defendants from allowing the framework to remain, so as to darken, injure, or obstruct the plaintiff's ancient lights, the interlocutory injunction merely extending to restrain the continuation of the glazing, and not to the removal of the framework ; the Court being The Court is always very reluctant upon interlocutory applications to grant a reluctant upon mandatory injunction (1) . applications to grant a mmdatoryTnjunction. 19. The Court will interfere to restrain apprehended injury The Court where it is clear the act intended to be committed would injure Apprehended or destroy a clear legal right ; and a lessee of a dwelling-house in >°jury ■where which he carried on business as a diamond merchant was held injure or entitled to an injunction restraining the owners of premises ad- legal right— jacent (who afterwards purchased the reversion of the lessee's of a^ncfe^t"'"*" house) from constructing the party-wall which they were about to ligWs, injuri- ' . • c 1 °"^ *° business rebuild so as to occasion such an obstruction of the lessee s ancient of diamond lights, however slight, as would injure him in his business (2). restrained. 20. The intrusion upon a neighbour's privacy, even by opening intrusionupon a new window to overlook his neighbour's premises, and so inter- prifacybV fering, perhaps, with his comfort, is not a ground for interference "®^^ window, '■.. not a ground either at Law or m Equity (3). of interfer- 21. A plaintiff who has himself in an insignificant degree ob- pia^„tiff ],;„!. scured the light and air to his own dwelling-house is not therebv ^'^'^ obstmct- •' ing light and disentitled to an injunction to restrain the defendant from erecting airinaninsig- a building so as seriously to diminish the supply of light and degree, not air (4). And where a bill stated that the erection of a proposed ^ju°e^'^to building would materially affect the comfort and eniovment in '■^strain sprioiislv respect of light and air, of the inhabitants of an adjoining house, of diminishing which there had been uninterrupted enjoyment for twenty years '^ * '^^ ^^'^' (1) Turner V. Spoomer, 1 Dr. & Sm. 467; 30 L. J. (Oh.) 801; Jones v. 467 ; 30 L. J. (Ch.) 801. Tapling, 12 C. B. (JST. S.)' 842, per (2) Herz v. Union Bank of London, Blackburn, J. 2 Giff. 686 ; 1 Jur. (N". S.) 1 27. (4) Arcedeckne v. Kdk, 2 Giff. 683 ; (3) Turner v. Sjiooner, 1 Dr. & Sm. 5 Jur. (IST. S.) 114. 2 P 434 LIGHT-LIGHT AND AIR. ipART I. and upwards, the Court granted an injunction to restrain the Sect. 1. ' erection of such building, the plaintiff undertakiag to bring an action within one month (1). 22. The right to an ancient light depends upon an implied con- Obscurii^r tBaet (2) ; but there may be a right to a light depending upon an restrainerf on express Contract, and therefore the defendants, who had become gimmd of ^jjg reversioners of the premises, and who were about to diminish express con- ^ ' tract as exist- their lessee's ancient light, were, upon the principle of ancient light kmdloiKj and and implied contract, and also express contract, as existing between '''^'^^ ■ landlord and tenant, restrained by injunction from obscuring the ancient light (3). 23. Where the plaintiff was in the enjoyment of ancient lights, and there had been a building adjoining his with a wall alleged to have been twelve feet high, and not interfering with his light ; and the defendant was about to pull down the ruins of this wall, and rebuild it thirty feet high, which he alleged was the original height, but the plaintiffs evidence as to the original height was more precise than the defendant's ; and the defendant said he never intended to build beyond the original height, but the plaintiff proved that he threatened to build much beyond twelve feet, and an interlocutory injunction had been obtained, which the defendant never moved to dissolve ; at the hearing of the cause a decree for a perpetual injunction was granted, without requiring the plaintiff to try his right at Law (4). 24. Where a building was in the course of erection at a distance of thirty feet from the windows of a mansion, and an injunction was applied for to restrain the defendant fi-om proceeding with the erection, the Court held, that this was no case for an immediate injunction, but the plaintiff was put upon terms to try the legal right, the defendant undertaking to abate if a verdict should go against him (5). 25. In Sutton v. Montfort (6) Vice-Chan cellor Sir L. Shad- well granted an injunction to prevent the obstruction of ancient lights against a lessee of an ecclesiastical corporation, subject (1) ArcedecJene v. Kelk, 2 Giflf. 683 ; 1 Jur. (N. S.) 127 ; 2 Giff. 686. 5 ,Iur. (N. S.) 114. (4) Potts v. levy, 2 Drew. 272. (2) Sed vide pi. 8, a7ite. (5) Smith v. Mger, 3 Jur. 790. (3) Ilerz V. Union Bank of London, (6) 4 Sim. 550. LIGHT -LIGHT AND AIR. 435 to the plaintiffs establishiug; their rights to the easement in an PaetI. ^ *= o . Chapter III. action. Sect. 1. 26. In Byder v. Bentham (1) an injunction was granted by Lord Chancellor Hardwicke against building or erecting whereby any of the plaintiff's lights might be obstructed, but he directed the scaf- folding or poles and boards already raised to be pulled down until the trial of the right, which was directed on a motion to pull down what had been done ; the Lord Chancellor observing that he never knew an order to pull down anything on motion, that it was some- times, though rarely, done on a decree, but that the Court would indeed sometimes order the going on to be stopped. 27. In Bach v. 8tacy (2) Lord Chancellor Eldon (under the then practice) granted an injunction ex parte until the defendant should fully answer the bill, or other order to the contrary, to restrain the owner of a house from making any erections or improvements so as to darken or obstruct the ancient lights or windows of an adjoining house. 28. In Wynstanley v. Lee (3) the Master of the EoUs, Sir T. Plumer, refused an injunction to restrain the obstruction of ancient lights in a case where the nature of the alleged injury did not require the preventive interposition before a trial at Law, and the legall right was doubtful. 29. The Court will not grant an injunction against darkening rpj^g q^^^.^ ancient windows in every case affecting the value of premises that ^^^ °°* S''^'^^ 11 \ • 1 fi- 11 injunction would support an action ; the effect must be, that material injury, against amounting to nuisance, which should not only be redressed by ancfeTt™^ damages, but upon equitable principles prevented (4). windows value of premises that would support action — there must also be material iniury amounting to nuisance to be redressed on equitable principles. 30. The Court will not grant an injunction to stay building in a No injunction case of mere injury or inconvenience to property or persons ad- *" ^^"^ ^•™^'^" joining or otherwise, except by agreement, or where the building is ^^^^ ™J"''y j>i , ., .1.1, °or inoon- ot such a nature as to stop up ancient lights (5) ; and in Fish- venience, mongers' Company v. East India Company (6), Lord Chancellor arSelment. or ancient (1) 1 Ves. Sen. 543 ; sed vide, as to (3) 2 Sw. 333. lights stopped, mandatory injunctions on motioD, (4) .^S.-Gera. v. iWc7io?,16 Ves. 338. Beadd V. Perry, L. R. 3 Eq. 465 ; pi. (5) Morris v. Lessees of Lord Berhe- 46> post- ley, 2 Ves. Sen. 453. (2) 2 Euss. 121. (6) Dick. 164. 2 F 2 436 LIGHT-LIGHT AND AIE. Part I. Hardwicke refused an injunction to restrain building in the City of Sect. 1. London, seventeen feet off the plaintiff's house, being of opinion that it was not a nuisance contrary to law, for that it was not sufficient to say it would alter the plaintiff's lights, for then no vacant piece of ground could be built on in the City, and here there would be seventeen feet distance, and the law said that it must be so near Eendering a as to create a nuisance ; and that it was true the value of the pleasant Sno plaintiff's house might be reduced by rendering the prospect less reason *°^ F^^ pleasant, but that that was no reason to hinder a man from building building on on his own ground. ground. 31. Under the 2 & 3 Wm. 4, c. 71, as. 3, 4, a party is prescrip- tively entitled to the access and use of light, if his enjoyment thereof commenced twenty years next before the bringing of an action in which the right is contested, provided such enjoyment has not at any time b^en interrupted, and the interruption ac- The twenty quiesced in, for a whole year. Accordingly, where A. had the free ment under access of light and air through a window of his house for nineteen the^Prescrip- 7^^^^ ^^^ 330 days, and B. then raised a wall which obstructed tion Act, are -tjie light, and the obstruction was submitted to only for thirty- to be reckoned ° ^ ^ •' •' from the com- five days, when A. brought an action to remove it ; the House of enjoyment to Lords held, that the right of action was complete, that the twenty ing^ction"^ years' enjoyment was to be reckoned from the commencement of Interruption the enjoyment to the time of bringing the action, and that an not interrup- interruption of the enjoyment, in whatever period of the twenty tl°° Act unless Y^ars it may happen, cannot be deemed an interruption within the acquiesced in meaning of the Act unless it is acquiesced in for a whole year (1). year. 32. In Wynstanley v. Lee (2) the Master of the Eolls, Sir T. Plumer, held, that the presumption of a right, from twenty years' undisturbed enjoyment of light, was excluded by the custom of the City of London ; but this custom was abolished by virtue of the Prescription Act, 2 & 3 Wm. 4, c. 71 (3), the 3rd section of which extends to the custom of London, which authorized one neighbour to obstruct the access of light to another's messuage, &c., by building on an ancient foundation ; and in an action for building so as to darken windows which had been enjoyed for twenty years (1) Flight V. nomas, 8 CI. & F. (2) 2 Sw. 333. 231 ; S. C. West, 671 ; 5 Jur. 811 ; v. (3) Yates v. Jack, L. E. 1 Oh. 295, rl. 13, ante. 296, 299. LIGHT— LIGHT AND AIE. 437 ■without interruption, the custom of London is now no longer a Part I. , „ ,, , Chafiee III. deience (1). Sect. i. 33. If a landowner sells any portion of his land, the purchaser Pm-chaser of has a right to build upon it so as to obstruct the ancient lights on ]^^^ fro™ ° *■ landowner of the remaining portion of the land (2) ; and so, where the owner of adjoining a house sells a piece of adjoining land, the purchaser may build obstruct on it as he pleases, and the vendor cannot prevent his doing so, ^^g^eon ^'^^^^ even although the buildings erected on it may interfere with his ancient lights (3). 34. Where a house is erected on the site of an old house which The question has been burned down, the windows of which were ancient lights, character of the question whether the character of ancient lights attaches to attaches to the new windows depends on the question whether the servitude "^f windows .of house buut they would impose on the servient tenement is substantially the on site of same as that which previously existed ; and where the windows of burnt down a new house so erected, although somewhat differing in form from arlcient'^liehts the windows of the old house, were of about the same area and depends on . . the question very nearly m the same positions, Vice-Chancellor Sir R. T. whether the Kindersley held, that the servitude imposed on the servient tene- wouid^impotffi^ ment not being a more onerous nor a different servitude, the *? ™bstan- character of ancient lights attached to the new windows (4). same as previ- „_„,„.,- ... . ously existed. do. ine Oourt will not grant an injunction to restrain an ob- nq injunction struction of ancient lights merely because the effect of such *? "^f s'™" „ ° ■' obstruction of obstruction is to render the plaintiff's house less cheerful ; but if ancient lights the effect is to cause material annoyance to the inmates of the because house house in the ordinary occupations of life, and to deprive them of cheerM -^^^^ such an amount of light as they might reasonably calculate on tl^ere must be enjoying, then the Court will interfere (5) ; and Lord Chancellor annoyance. Cranworth in this case ruled, that the locality of the plaintiff's house, whether in a large town or in the country, was to be taken into consideration in estimating the amount of obstruction neces- sary to justify the interference of the Court ; and that, in estimating the damage to the plaintiff, the Court would consider whether the (1) Truscott V. Merchant Taylors' (3) Curriers' Company v. Corlett, Company, 11 Ex. 855 ; Cooper v. Bub- 2 Dr. & Sm. 355. buck, 12 0. B. (N. S.) 456. (4) lb. (2) Curriers' Company v. Oorbett, (5) Clarke v. Clark, h.B.. 1 Ch.W; ] 1 Jur. (N. S.) 719 ; 13 W. R. 538. 11 Jur. N. S. 914 ; 35 L. J. -Oh. 151. 438 LIGHT— LIGHT AND AIR. Part I. place in which the obstruction was complained of was in the Sect. 1. country, or in a populous city, and whether the effect of the in- convenience was felt opposite or obliquely to the light obstructed ; but that, in a large city, the mere obstruction of the direct rays of the sun for two hours in the day during the winter months was not a sufficient ground for granting an injunction, and reversed a There is no decision of Vice-Chancellor Sir W. P. Wood, who had granted an f 'r!nci1if '^' injunction (1). But in Martin v. Headon (2) it was held, by Vice- amouni of Chancellor Sir R T. Kinderslev, that there is no essential dif- lignt and air - ' that may be ference in the amount of light and air that may be claimed in town town and and country, and that the Court will interfere, though the amount Court 'will of ^^y ^1'®* abstracted is small, if its proportion to the previous restrain amount of skv is such that the abstraction causes inconvenience. obstruction, •' though area small, if it cause inconvenience. It is not every 36. It is not every interference with the access of light which that will be will entitle a plaintiff to the interposition of a Court of Equity, he there^mustlje "^^^^ shew material injury in order to obtain the assistance of the material in- Court (3). convGniGncG 37. In a case where an injunction had been granted to restrain a defendant from erecting buildings so as to darken ancient lights, but with liberty to apply at Chambers with respect to any proposed erection of buildings on his property which might cause an inter- ruption of the ancient lights ; Vice-Chancellor Sir W. P. Wood having ruled that the foundation of the jurisdiction in Equity to interfere was the existence of an injury to property of such a nature as to render the property in a material degree unsuitable to the purposes to which it was applied, or to lessen considerably An owner of the enjoyment of the property; Lord Chancellor Cran worth, on ts°entitit'd not appeal, held, that an owner of ancient lights is entitled, not only merely to suf- ^ sufficient light for the purpose of his then business, but to all floieut for his _ _ ° r jr > ^ then business, the light which he has enjoyed previously to the interruption light he has sought to be restrained ; and that where an injunction is granted theTnterrap-™ against obstructing the ancient lights of business premises, the tion. Court ought not to make any declaration narrowing, or appearing (1) Clarke v. Clark, L. R. 1 Ch. (2) L. R. 2 Eq. 425 ; et v. Lyon v. 16 ; 11 Jur. (N. S.) 914 ; 35 L. J. Dillimore, 14 W. R. 511. (Cli.) 151. (3) Curriers' Company v. Corbett, 11 Juv. (N. S.) 1719. LIGHT-LIGHT AND AIE. 439 to narrow, the right of the plaintiff to the quantity of light there- Pakt i. tofore used by him for the purpose of his business (1). Sect-.V 38. In Lawrence v. Austin and Durell v. Pritehard(2), the Master of the EoUs, Lord Eomilly, held, that a plaintiff coming to the Court to prevent an obstruction of ancient lights must take pro- ceedings before the obstruction complained of is completed, other- wise his remedy is by action, and that it was immaterial whether he knew of the obstruction before it was completed, and that a Court of Equity would not, in the absence of fraud, interfere to prevent the obstruction of light and air, or any other easement, if the obstruction had been actually completed before filing the bill ; tind that in such a case the Court could have no cognizance what- ever of the matter, and would grant neither a mandatory injunc- tion nor damages, but would leave the plaintiff to his remedy at Law. However, in Durell v. Pritchard (.3), on appeal. Lords There is no Justices Turner and Enight Bruce held, that there is no rule which preventsComt prevents the Court from granting a mandatory ini unction where s™°i™s a ° ° J J manaatory the injury sought to be restrained has been completed before filing injunction the bill, and that there is no difference in this respect between completed injury to easements and to other rights ; and that the mere fact fiifa^lnd^his that the damage created by obstruction of light is completed ?'PP''^^ *° before the bill is filed is not of itself a sufScient ground for re- easements. fusing a mandatory injunction ; and that in this, as in any other case of injury to easements, the Court looks to the particular cir- cumstances of each case, but that it will interfere by way of mandatory injunction only in cases where extreme or very serious damage will ensue from non-interference (4). Eut where a small portion of a building which had obstructed a plaintiff's light and air was completed after the filing of the bill, the Master of the Eolls, Lord Eomilly, ordered such portion to be pulled down, and directed an inquiry as to damages in respect of the injury caused by the other part of the building (5). 39. Where a bill was filed for an injunction to restrain the (1) Yates V. Jack, L. R. 1 Ch. 295 ; Thompson, pi. 50, post 12 Jur. (N. S.) 305. (4) lb. (2) 11 Juv. (N. S.) 576 ; 34 L. J. (5) Lawrence v. Austin, Durell v. (Ch.) 598. Pritchard, 11 Jur. (N. S.) 576 ; 34 (3) L. R. 1 Ch. 244 ; v. Calcrn/t v. L. J. (Oh.) 598 ; 13 W. R. 981. 440 LIGHT— LIGHT AND AIR. Part I. defendants from interfering with the plaintiff's right to light and air, Sect. 1. and an interlocutory motion was made accordingly, but before the motion was made the interference was carried to a certain point beyond which the defendants undertook it should not be extended ; the Court held, that although it might, at the hearing of the cause, grant a mandatory injunction, the better course was merely to continue till then the defendants' undertaking, and to make the costs of the motion costs in the cause (1). 40. Where buildings complained of were finished before the bill was filed, and the plaintiffs were not occupiers, but owners in reversion of the servient tenement, the Court ordered an inquiry Court will pro- as to damages occasioned by the new buildings (2). The Court* tect a plaintiif .,-, . ^ -i • -iv ^ i p ■whose per- Will mtertere to protect a plamtin whose personal comfort and andeS'oy-™ enjoyment, and, a fortiori, one whose trade or business is pre- ment, and judicially affected by the diminution of light, and if the obstruc- trade or busi- •' •' ■' _ ... ness, is preju- tion has been completed since the filing of the bill, will assess dicially . . . affected by damages by way ol compensation (d). li™t™ '"^ ° ^^- Where there is, substantially, interference with comfort, and diminution of light for carrying on business, so that substantial damages would be given at Law, the Court will restrain injury to The fact that ancient lights ; and the fact that the amount of compensation is compensation capable of being ascertained by a jury does not prevent the Court can be ascer- from acting on the ground of irreparable mischief. In such a case tamed, does . not prevent there is no difference between the rights of a plaintiff in respect of acting on the a house in a town or in the country ; but to establish a sufficient uTeparable defence to a case of alleged injury of this description, the defen- niisohief. d^nt must shew that, for whatever pui-pose the plaintiff may wish to employ the light whilst the house retains its original character, there will be no material interference with it ; and the following grounds of defence — first, that the plaintiff will have, when his injury is complete, as much light and air as other persons have for the same purposes ; secondly, that the plaintiff might avoid the injury by enlarging his windows ; thirdly, that the plaintiff has been accustomed to use blinds to his windows ; fourthly and fifthly, (1) Dunball v. Walters, 12 L. T. (3) Maiiin v. Headon, L. B. 2 Eq. (N. S.) 759. 425 ; 12 Jur. (N. S.) 387 ; vide pi. 38, (2) Curriers' Comimiiy v. Corbelt, 2 ante. Vi: & Sm. 355. LIGHT— LIGHT AND AIR. 441 that a room used for a special purpose is not well adapted to that Part i. purpose, and that it has been so used without the knowledge of seot. i. the defendant ; and sixthly, that the defendant intends to cure the evil by building with glazed tiles, or other means for improving the light — are insufficient (1). 42. The Court will not grant an injunction to restrain the erec- No injunction tion of a building on account of its obstructing the plaintiff 's light, f^|^buUding unless the plaintiff can shew that he will sustain substantial "? account of '^ _ _ _ _ ■ obstructing damage ; if he cannot do this, his ground of application to the light, unless Court fails, and the Lords Justices Turner and Knight Bruce held damage will —reversing a decision of Vice-Chancellor Sir E. T. Kindersley— ^^ff] *,^'t 7 that no inquiry would be granted as to damages, and dismissed "ase there win . . . be no inquiry the bill altogether, but without prejudice to an action at Law ; and, as to damages. on the ground of the weight of the opinion of the Yice-Chancellor, also without costs, and allowed no costs of appeal (2). 43. Where W., residing near Fenchurch Street, London, had ancient windows looking into an archway, and a passage passing under part of his house towards the rear, and also a skylight near a cottage belonging to Messrs. H., who pulled down the cottage, and commenced a building intended to be very lofty, immediately facing the end of the archway passage, and on a written notice from W. they desisted ; but seven months after, when the Courts were not sitting, suddenly recommenced, and carried up the wall to a great height, before a bill could be filed, or an interim order for an injunction obtained, which was done as soon as possible, to restrain raising any buildings so as to obstruct the plaintiff's light and air, and the enjoyment of his ancient lights, and for damages ; Vice-Chancellor Sir R. T. Kindersley said, that this was a case in which it appeared to him, supposing there was sufficient injury, the Court would give damages, and held, on the evidence at the hear- ing, and measurement of sky area, that the plaintiff was entitled to be compensated by damages, the defendants to pay the costs (3). 44. A lessee of a dwelling-house, in which he has for nearly eight years carried on business as a repairer of jewelry and (1) Dent V. Auction Mart Company, (2) Bobson v. Whittingham, L. R. 1 Pilgrim v. Auction Mart Company, Oh. 442 ; 12 Jur. (N. S.) 40. Mercers Company v. Auction Mart (3) Wehb v. Hunt, 14 W. R. 725 ; Company, L. R. 2 Eq. 238 ; 12 Jur. 12 Jur. (N. S.) 558 ; v. pi. 38, ante. (N. S.) 447 ; 14 W. R. 709. 442 LIGHT- LIGHT AND AIE. Part I. Obapteb III. Sect. 1. watches, is entitled to damages against the owner of arljaoent pre- mises, who is in the process of constructing a building which would occasion such an obstruction of his ancient light as to injure him in his business ; and the Vice-Chancellor, Sir J. Stuart, said the plaintiff was entitled to an injunction, although not to one of a mandatory kind (1). No injunction 45. If there is no interference with the access of light and air, obstruction of t^® ^^'^^ ^^^^ ^ shop-window is obstructed in such a way that it the sight of a cannot be seen from so great a distance as formerly affords no stLOp-window, ° unless access ground for the interference of a Court of Equity (2) ; and the air obstructed, erection of a building will not be restrained because it injures the "°/ure'plai/ plaintiff by obstructing the view of his place of business (3). tiff by obstructing view of place of business. Additional walls must be built back from the original one, in a propor- tionate dis- tance to the height tliey are to be erected. 46. The Courts of Common Law, in deciding cases of light and air within the metropolitan district, require persons erecting addi- tional walls to their premises to carry them back from the original wall in a proportionate distance to the height they are about to be erected; and Vice-Chancellor Sir J. Stuart, following this rule, restrained a party by a mandatory injunction from building a wall more than ten feet higher than his original wall, this being the distance between the two walls ; and the Court wUl not, in an ordi- nary case, restrain the erection of a building the height of which above an ancient light is not greater than the distance from the light ; and where, pending the litigation, the defendant continued the building complained of, a mandatory injunction was granted on motion. The Court (Vice-Chancellor Sir J. Stuart) said, that it had been clearly proved in this case, that opposite to the plaintiff's ancient lights the defendant had built a wall very much higher than the distance between them and the wall, and that, to that extent, the defendant must, in his opinion, take his wall down, and granted a mandatory injunction to that effect on an interlocutory application, saying that he had never heard of any supposed rule of the Court, that mandatory injunctions could not properly be made except at the hearing of the cause (4), and that Lord Cotten- (1) Lyo7i w DilUmore, U L. T. L. R. 2 Ch. 158. (N. S.) 183 ; U W. R. 511 ; v. pi. 38, (4) Vid-e Eyder v. Bentham, 1 Vcs. ante. Sen. 5-13, pi. 26, ante, as to this point, (li) Smith V. Owen, 14 W. li. 422. and also the same case as to the observa- (3) Butt V. Imperial Oas Cvrnpany, tion with reference to Lord Cottenham. LIGHT-LIGHT AND AIB. 443 ham was, so far as he knew, the first judge who proceeded by way of • Paet I. /jtT A "pfTTlpO TTT mandatory injunction. On an appeal from this decision the Lords seot. i. Justices ordered the motion (and also a motion to commit for breach) to stand to the hearing, the costs of the appeal to be dealt with by the Vice-Chancellor(l). 47. The Court, though it will grant a perpetual injunction to The Court, la restrain the darkening of ancient lights, will yet in a proper case ^m retain ' retain the power of sanctioning any proper scheme which may be f^^?^ °^ ^^^''' proposed by the defendant, and will, for this purpose, give liberty scheme, to apply to the judge in Chambers with reference to any such giant a per- scheme, and will not require the payment of costs as a condition tkin agaiu™''" precedent to such application (2). But in this case the Court jl'^^^''"™^ of refused an application by the defendants, before the hearing, for the appointment of a person to survey and report upon the pro- perty, under 15 & 16 Vict. c. 80, s. 42, evidence having been given only on the part of the plaintiff (3). 48. Where, in an injunction suit to restrain a defendant from Delay in obstructing the plaintiff 's light and air, a motion for a decree was ^cree^and made nearly three years after filing the original bill, and other pro- mutual acts of ceedings in the suit, and after various acts on the part of both disentitle plaintiff and defendant whereby it appeared to the Court that each relief. party had, to some considerable extent, injured the other; the Master of the Eolls held, that although the plaintiff sought the injunction and damages against the defendant, and the defendant was to some extent to blame, still that, upon the evidence, the proper course was simply to dismiss the bill without costs (4). Where sufficient damage to the access of light to the plaintiff's premises was shewn to support a mandatory injunction, such an injunction was not granted, but only damages given, through the combined effect of the following circumstances : first, -that the Delay trom plaintiff had shewn delay in complaining; secondly, that the ^^"3^*^^^. plaintiff had at one time offered to accept a certain sum as com- offer to accept , .■■ . I, J, , compensation, pensation ; and, thirdly, that very great damage would be caused and great damage to (1) Beadel v. Ferrf/, L. E. 3 Eq. 12 L. T. (N. S.) 681. 405 ; 15 W. R, 120. (3) lb. (2) Stokes V. City Offices Company, (4) CocJcs v. Bomaine, 14 L T 2 H. & M. 650 ; 12 Jur. (N. S.) 558 ; (N. S.) 390. 11 Juv. (N. S.) 560 ; afiSrmed on appeal, 444 LIGHT— LIGHT AND AIR. Pabt I. to the defendant by an injunction (1) ; and although in this cage the Seot. 1. circumstances justified the Court in granting a mandatory injune- defendant by ^^^^ ^^ *^® hearing, to compel a defendant to pull down newly- a mandatory erected buildings to the height of the former ones, on the ground heidtodia- of obstruction to the plaintiff's light and air; yet the plaintiff, to injunction haying heard of the intended structure in April, and not having and only complained till the November following, during which time the given. defendants had laid out large sums ; and the plaintiff having also, since the bill had been filed, made an offer to take a money com- pensation for the injury to her rights ; Vice-Chancellor Sir W. P. Wood, instead of an injunction, directed an inquiry as to the amount of damages sustained by the plaintiff (2). To entitle to 49. In order to establish the right to the access of an extraordi- acoessofan i j- t i ^ j. x- i i . extraordinary iiary amount 01 light necessary tor a particular purpose or busi- ligh™or°a ^®®® ^° ^^ ancient window, open, uninterrupted, and known particular enjoyment of such light, in the manner in which it is at present purpose, there _■' •' _ o ' ^ ^ jr must be open, (i. e., at the time of filing the bill) enjoyed and claimed, must be and known ' shewn for a period of twenty years ; and in this case, the evidence twentTyearT °'^^y shewing the enjoyment of the user for a period within twenty years, the bill was dismissed with costs (3). There can be 50. In Calcraft V. Thompson (4) the Master of the RoUs, Lord damages°for Romilly, held that a suit could not be sustained in the Court of invasion of Chancery, for the purpose of recovering damages for an inva- if injunction sion of ancient lights, when the injunction is refused. This was is F6fuS6d a suit to restrain the invasion of ancient lights by mandatory injunction, the alleged obstruction having been completed before the bill was filed ; and the Master of the Rolls said that the evidence in the case did not shew that the damage amounted to the " very serious damage which would arise from the inter- ference of this Court being withheld," mentioned by Lord Jus- tice Turner in his judgment in Burell v. Pritchard (5), as jus- tifying the interference by \\ay of mandatory injunction, and dis- missed the bill with costs. This decision was afiBrmed on appeal by Lord Chancellor Chelmsford, so far as it decided that there was (1) Senior V. Patvson, L. R. 3 Eq. (3) Lanfranchi v. Mackenzie, L. E. 330 ; 15 \V. R. 220. 4 Eq. 421. (a) lb. (4) 35 Beav. 559 ; 15 W. E. 387. (5) 35 L. J. (Ch.) 2li3 ; v. pi. 38, ante. LIGHT-LIGHT AND AIE. 445 not sufficient damage or diminution of light to entitle the plaintiff Part I. to the special interposition of the Court by way of mandatory "^seot."*!. injunction ; and the Lord Chancellor, in his observations on the " quantum of injury to ancient lights necessary before the Court will interfere by granting relief generally, and with reference to a mandatory injunction, observed, that this quantum of injury was not to be estimated by a limitation with reference to any particular use to which the premises were put at the date of the obstruction complained of. 51. Where a purchaser takes with notice of adjoining windows, Purchaser . . . . with notice he is thereby put upon his inquiry as to whether they are privi- of adjoining leged or not ; and if privileged, it is immaterial whether as modern p„° °^^^ '^. windows by grant, or as ancient by prescription ; and where the l^'^y wither owners of two adjoining plots of ground leased one to the plaintiffs for building purposes, the lease containing an agreement that the windows should be constructed in certain positions and manner ; and the plaintiffs, with their lessors' sanction, erected a building with certain windows (involving a variation from the description in their lease) deriving light and air from the other plot ; and sub- sequently the defendants purchased the adjoining plot, under a conveyance with a marginal plan, which was held to give them notice that the plaintiffs' building contained windows receiving light from the plot purchased by the defendants ; Lord Chancellor Chelmsford held, affirming a decision of Vice-Chancellor Sir W. P. Wood, that the " agreement" in the lease amounted to an express covenant between the plaintiffs and their lessors, and that the variation in the size, number, and position of the windows did not amount to a breach of the covenant ; but that, had there been a breach, the subsequent acts of the lessors amounting to a waiver, and the lessors being thereby estopped from interfering prejudi- cially with the windows, the defendants claiming under them could be in no better position ; and that misrepresentation or conceal- ment practised against the defendants by their vendors could not have affected the right of the plaintiffs to light as against the defendants. The Lord Chancellor said the windows were there before the defendants' eyes, and prima facie presented an obstacle to any building being placed so as to obstruct them, and that they challenged inquiry whether they were privileged or 446 LIGHT— LIGHT AND AIR. Pabt I. Ohapteb III. Sect. 1. An obstruc- tion of light and air by buildings rendering house un- comfortable, not, and if privileged, it was immaterial whether by grant or pre- scription (1). 52. Where proposed buildings would obstruct the light and air, so as to render plaintiff 's house uncomfortable to such a degree aa would entitle him to recover substantial damages at Law, the Court will grant an injunction to restrain the building of the houses (2). , ,.,,. But the Vice-Chancellor (Sir J. Bacon) said that his iudgment and entitling _ ^ ' _ on to substantial was in no degree influenced by the consideration of any inconve- be restrained, nience from the loss of a prospect (3). Lights en- 53. Lights uninterruptedly enjoyed for twenty years anterior to i?ars hioti tlie passing of the Prescription Act (2 & 3 Will. 4, c. 71), are ancient the Prescnp- \\aWi^ ■ and in a case where lights had become ancient lights before tion Act are ° _ ° _ ° ancient lights, the statute, the 4th section of the Act — which enacts, " that the period of twenty years (mentioned in the 3rd section as that necessary to give an absolute right to the access of light), must be the period next before the commencement of the suit relating to such lights" — was held, by Vice-Chancellor Sir J. Stuart, not to apply (4). 54 When ancient lights are obstructed, the fact that the owner of the building to which the ancient lights belong has himself con- tributed to the diminution of the light, will not in itself preclude him from obtaining an injunction against the person causing the obstruction ; and where the defendant built a wall to the north of the windows of the plaintiff's house, by which his ancient lights were interfered with, and the plaintiff was at the same time enlarging his own premises whereby he diminished the light coming to his own windows by shutting off some of the light irom the south and south-west. Lord Justice Sir G. M. Giffard held, reversing a decision of Vice-Chancellor Sir J. Stuart, that the plaintiff was entitled to an injunction (5). 55. The easement of the owner of the dominant tenement to have his light and air unobstructed by newly-erected buildings is not lost or diminished by the circumstance that, by means of struetion of light and air, though he has ncquned more light from alterations of others. section of the Act does not apply to them. Though owner con- tiibute to diminution of hght, yet entitled to restrain ob- struction. Owner of dominant tenement is entitled to restrain ob- (1) Miles V. ToUn, IG \V. R. 465 ; 17 L. T. (N. S.) 4-32. (2) Kdh V. Fmrmi, 23 L. T. (N. S.) 458 f 19 W. R. 209. (3) lb. (4) Ladyman v. Grave, 19 W. R. 344. (5) Staight V. Burn, L. E. 5 Ch. 63 ; 39 L. J. (Ch.) 289 ; 18 W. R. 243; 22 L. T. (N.S.) 831. LiaHT— LIGHT AND AIE. 447 clearances effected in the neighbourhood by other parties than the Part I. owner of the servient tenement shortly before the alterations, the sect. i. owner of the dominant tenement acquired more light than the buildings could subtract (1). 56. Where the owner of two contiguous houses in the City of London sold one to the defendant, by a conveyance which correctly marked out the ground site of the house conveyed, and one of the first-floor rooms in the house retained by the owner projected over the site, and was supported by the other house ; Vice-Chancellor Sir W. M. James held, upon a bill by the owner to restrain the defendants building over or on the roof of the projecting room, that the vertical column of air over so much of the room as over- hung the defendant's site belonged not to the owner, but to the defendants, and dismissed the bill with costs, but without prejudice as to the ownership of the room (2). 57. The lessee of a house and garden, forming part of a large area of building-ground, will not be entitled, under the usual cove- nant for quiet enjoyment, in the absence of special contract, to restrain the lessor, or persons claiming under him, from building on the adjoining land so as to obstruct the free access of light and air to the garden (3). 58. There can be no prescription for light and air over open ground (4). 59. Although, in Heath v. Buehnall (5), it is laid down that Though when an owner of a building having ancient lights replaces them ancient lights by new larger windows, a Court of Equity will not interfere by ^''^jarer''^™ injunction to restrain the owner of the servient tenement from windows, yet still entitled obstructing them, and that the case of Ta'pling v. Jones (6) applies to equitable only to the right of the owner to recover damages at Law, and is ^^ ^^ ' not, in such a case, to be extended to establish his right to relief in Equity ; yet, in StaigM v. Burn (7), Lord Justice Sir G. M . G-iffard said (1) Dyers' Company v. King, L. E. 18 L. T. (N. S.) 629; Bdberts v. Macord, 9 Eq. 438 ; 39 L. J. (Ch.) 339 ; 18 W. B. 1 M. & Rob. 230. 404 ; 22 L. T. (N. S.) 120. (4) lb. (2) Corhett v. HUl, L. R. 9 Bq. 671 ; (5) L. R. 8 Bq. 1 ; 38 L. J. (Ch.) 22 L. T. (N. S.) 263 ; 39 L. J. (Ch.) 372 ; 17 W. E. 755 ; 20 L. T. (N.S.) 549. 547. (6) 11 H. L. C. 290. (3) Fotts V. Smith, 38 L. J. (Ch.) (7) L. R. 5 Ch. 163 ; 39 L. J. (Ch.) 58 ; L. R. 6 Bq. 311 ; 16 W. R. 891 ; 289 ; 18 W. R. 243 ; 22 L. T. (N.S.) 831. 448 LIGHT-LIGHT AND AIE. Part I. that, with respect to the case of Heath v. Buekncdl (1), he could not Sect. 1. ' take it as having been decided otherwise than upon its particular circumstances — those particular circumstances, as he gathered them, being, that a very small and almost inappreciable proportion of the ancient window was preserved, and the rest was new ; so that there would have been no material damages at Law ; but that, if this case was supposed to lay down the proposition that a plaintiff who, according to Tajpling v. Jones (2), has clear legal rights, cannot come to this Court and get protection for those rights, he entirely demurred to such a conclusion. No mandatory 60. A Court of Equity will not interfere by mandatory injunc- uniess sub- tion to preserve a right to light and air, unless there has been a material or Substantial, material, or serious infringement of such right (3). serious in- Q\ ^he terms of an iniunction which had been granted restraining irmgement. ^ o o a party from erecting and building, so as to darken, hinder, or obstruct the free access to light and air, as such access was pre- viously enjoyed, though absolute and unqualified, are not used in an absolute and unqualified sense (4). Ifincon- 62. Where A. and B., two houses, were separated from each small, there other by a gullet two feet wide, and in house A. there was a window mandator^"^'''^ a foot Square, five feet above the groiind, on one side of the gullet, injunction nor the wiudow being the only window of the pantry of house A., and the owner of house B., in the lifetime of a tenant for life of A., and with her approval, pulled down house B., and built a new house in such a manner as to encroach upon the gullet, and to exclude the light and air from the pantry of house A., and after the death of the tenant for life of A., the reversioners filed a bill against the owner of house B. for a mandatory injunction, or, alternatively, for damages for the obstruction of light and air ; Vice-ChanceUor Sir W. M. James held, under the circumstances, that the inconvenience was not sufSciently serious to entitle the plaintiffs to relief, either by mandatory injunction or by an inquiry to assess damages (5). The right to 63. An Act of Parliament alone can give any person the right of ie^as much""^ taking the property of another without his consent, on payment of (1) Supra. (4) lb. (2) 11 H. L. 0. 290. (5) Spading v. Clarsm, 17 W. R. (3) Beadel v. Perry, 17 W. R. 185 ; 518. 19 L. T. (N. S.) 7r30. LIGHT— LIGHT AND AIE. 449 an adequate pecuniary compensation, and the right to property as Paet I. , . , , . . , , ii 1 1 1 • 1 tJie laiid Ohaptee III. light and air is as much property as the land, which which enjoys Sect. l. enjoys this easement on the land of another (1). *^^ easement. 64. The title to light acquired under the Prescription Act The title to (2 & 3 Will. 4, c. 71), by a twenty years' enjoyment, is a right to tiS'prescrfp- a certain amount of light only, and does not prevent the owner of ^f^^^^^^ ^ one of the adjacent tenements from altering the aperture through certain 1 • 1 1 <. T 1 /r>\ amount of which that amount ot light approaches (2). light only. 65. Where the owner of two leasehold messuages, held on a term for ninety-nine years, demised one for the residue of the term, less one day, to L., he himself occupying the other, in which he carried on the trade of a jeweller, and L., on entering, paid a premium of £300, and a rent of £7 10s. was reserved, and subsequently E. became, by the completion of twenty years' uninterrupted enjoy- ment, entitled to the use of windows in the rear of his house looking into a yard, upon which the house demised by him also looked, as ancient lights ; and in the demise there was a covenant restraiaing each party from building on the space between the backs of the houses so as to obstruct the light and air between certain points marked in an annexed plan, and L. pulled down his house and commenced building nearer and higher than the former erections ; the Court held that there was a violation of the covenant, a material injury in the obstruction of light and air, and a clear right to the ancient lights, and granted a perpetual injunction, with costs (3). 66. When, on the site of old buildings, the erection of new buildings of much greater height, materially obstructing the access of light and of air to adjoining property, has been completed before complaints made or bill filed, the Court, although it has jurisdiction to grant a mandatory injunction, will not do so where the owner of such property has himself treated the case as one for compensation by damages. But the'Coirrt, having that jurisdiction, will direct an inquiry to assess damages, and will not leave the plaintiff to his remedy by action (4) ; and, although a month should elapse between a month's delay after (1) Dunlall -z, Walters, 35 Beav. 565. 641. • (2) Maguire v. Grattan, 16 W. E. (4) Oori (Viscountess) r. Clark, 18 1189 ; Ir. R. 2 Eq. 246. L. T. (N. S.) 343 ; 16 W. R. 569 ; v. (3) Rolason v. Levi/, 17 L. T. (N. S.) pi. 2, p. 101, ante. 2 a 450 LIGHT-LIGHT AND AIB. Part I. the completion of the building and any objection thereto, the Sect. 1. ' Court will not consider that there was laches or acquiescence on completion ^^^ P^^* '^^ *^® Owner of the adjoining property when he was not of building himself in possession or occupation of it (1). not laches ■,-,■, pth-ii iii (here). 67. Where the windows of the back return oi M. s house looked into a passage or yard .nine feet wide, and the opposite wall of G.'s house was thirty feet high, and G-. proposed to take down the existing wall of his house, and rebuild it at a height of sixty feet, but with a recess of eight feet opposite one-half the frontage of M.'s wall, and the rooms, the light of which was interfered with, were small and low, and the evidence as to the amount of light of which the windows would be deprived, and the extent to which M.'s premises would be diminished in value, was conflicting, the Court, being of opinion that the windows would be deprived of a considerable amount of sky area, granted a prohibitory injunction, and declined to give an issue (2). No perpetual 68. It is held that there cannot be a perpetual injunction in until disputed regard to lights, in a case of disputed title, until the question has at Law"^"^ been settled at Law (3). 69. A., the owner of a house, purchased from B. a strip of land adjoining his lot for the purpose of keeping it open and free from buildings, B. erected a house on the line of this strip, and opened windows overlooking it, whereupon A. placed blinds upon his land close upon the windows, so as entirely to obstruct the view from them. He also erected buildings on the strip of land in the rear of both houses ; and B. filed his bill to compel him to remove such buildings and blinds, setting forth that by the contract of sale, A. was restricted from building upon the land between the houses, and obstructing the light of the vendor, but that such restriction was omitted from the deed to A. by mistake. It appeared that A. agreed, as part of the consideration of the purchase, not to build upon the strip, but not that the privilege of light was reserved to his No relief vendor. The Court held, though the proof shewed an agreement not beyond the to build upon any portion of the land, that the allegation in the bill allegations of j. .. j. o (1) Oori {Viscountess) v. Clark, 18 (2) Maguire v. Grattan, Ir. E. 2 Eq. L. T. (N. S.) 343; 16 W. R. 569; v. 246; 16 W. E. 1189. pi. 2, p. 101, ante. (3) Irvin v. Dixion, 9 How. 10 (Amr.) the bill. LIGHT— LIGHT AM) AIE, 451 covered only the portion between the two houses, and that B. could Part i. obtain relief only as to that portion. A. was aecordiagly enjoined sect. i. from erecting any building upon the part between the houses, but was not required to remove his buildings in the rear, nor the blinds placed before his vendor's windows (1). 70. A. applied for an injunction to restrain B. from the erection of his building, setting up in his bill an agreement that B. was to sell to A. that part of his lot lying in the rear of his own lot, that A. might enjoy light and air over the same. The injunction was granted, and afterwards, on B.'s motion on filing his answer, was dissolved. At the argument of this motion B.'s counsel, in ex- plaining a diagram of the premises, said that B.'s building did not cover the entire rear of A.'s lot, and if A. would take down his privy he could enjoy light and air ; A. did take down the privy, and put into the rear of his other buildings a range of fireproof windows ; B. thereupon began the erection of a dead wall along the site of the privy ; A. applied for an injunction restraining such erection. The Court held, that the declaration of B.'s counsel, in The declara- faeie Curise, followed by A.'s acts, constituted a contract with the dant's counsel Court and with A., which estopped B. from denying the same and »«/«««« misonief is the by Lord Chancellor Thurlow, where a defendant, not having or consequence. claiming any right or interest, cut down timber on the estate, being a mere trespasser ; and being such, an action of trespass would lie against him. And in Ooutihope v. Ma^plesden (6) Lord Chancellor Eldon granted an injunction against a trespasser cutting timber by collusion with the tenant, without prejudice to the case of mere (1) Agar v. Begent's Canal Company, (4) Cited in Sanson v. Gardiner Coop. 77. 7 Ves. 308; 6 Ves. 147; 8 Ves. 90; (2) 17 Ves. 110. 18 Ves. 186. (3) Batemam v. Johnson, Fitzg. 106. (5) 2 Dick. 670. (6) 10 Ves. 290. 2 H 466 TEESPASS. Part I. trespass ; and the Lord Chancellor said that he had no difficulty in Ohaptfr tit SECfr. 3. granting the injunction in this case, but that he would not be bound as to what was to be done upon a mere trespass ; though he said it was strange that there could not be an injunction in that case to prevent irreparable mischief; the rather as there was a writ at Common Law to prevent the further commission of waste during the trial ; whereas, if the Court would not interfere against a trespasser, he might go on by repeated acts of damage, perfectly irreparable, but that the ground in this case was, that the trespass partook of the nature of waste more than in general cases, the tenant col- luding ; and that if the tenant's act was waste, the act of the other must have so much of the quality of the tenant's act as to make it the object of an injunction. But in Hamilton v. Worsefold (1) (decided after Mogg v. Mogg (2) ) upon a bill stating that the plain- tiff was seised in fee ; that his title had but recently accrued, and the tenants had not yet paid him any rent ; that the defendant Worsefold pretended to have some claim to the estate, and had given notice to the tenants to pay their rent to him ; that he had entered upon the estate with the permission of the other defendants, the tenants, and had cut timber, and threatened to cut more ; and praying that Worsefold might be restrained from committing waste, and that the tenants might be restrained from permitting it ; Lord Chancellor Thurlow, upon the motion for the injunction, at first had some difficulty about granting the injunction, Worsefold being a mere trespasser, but at length his Lordship granted the injunction against both Worsefold and the tenants. In Thomas v. Oakley (3), the jurisdiction against waste by injunction and account was applied to trespass by exceeding a limited right in the defendant, who had an estate contiguous to the plaintiff's, to enter and take stone from a quarry for building upon a particular part of his (the defendant's) estate, by taking stone to a considerable amount for the purpose of Court enjoins "sing it upon the other part of his estate, being a destruction of where trere is *^® inheritance, as in the case of timber, coal, or lead-ore, and the a destruction distinction beween waste and trespass was therefore disregarded, Lee.^ ™ ^" ' In Crochford v. Alexander (4) Lord Chancellor Eldon granted an injunction against cutting timber in the case of trespass, viz., by a (1) 10 Ves. 290, n. (cited in the case last above-mentioned). (2) Supra. (3) 18 Ves. 184. (4) 15 Ves. 138. TEESPASS. 467 person having got possession under articles to purchase. And Paet i. in Earl Cow^er v. BaJcer (1) Lord Chancellor El don granted an seot. 3. injunction against trespass upon irremediable mischief in the ~~ nature of waste, on a bill by the lord of the manor and his lessees against the defendants, who had dredged and otherwise collected large quantities of stones having a peculiar value, found at the bottom of the sea, within the limits of the manor. In Mitchell v. Dors (2) an injunction was granted where the defendant having begun to take coal in his own land had worked into that of the plaintiff; Lord Chancellor Eldon said, that was trespass, not waste ; but that be would grant the injunction upon the authority of a case before Lord Thurlow, where a person, landlord of two closes, had let one to a tenant, who took coal out of that close, and also out of the other, which was not demised ; and that the difficulty was, whether the injunction shcJuld go as to both ; and that it was ordered as to both. But where an injunction had been obtained on affidavits against pasturing cattle and cutting in a wood, and the plaintiff prayed the injunction as tenant in fee, or as lord of the manor inclosing under the statute, and the defendants denied the former title, and as to the latter claimed common of pasture and estovers, and stated that after the en- closure sufficient common of pasture would not be left; and the plaintiff having, before the bill was filed, been nonsuited in an action of trespass, and having entered into an agreement with some of the tenants: upon the plaintiff pressing to have the injunction con- tinued until the hearing, and to have two issues directed — first, to try the right of the defendants as commoners ; secondly, whether, supposing the wood inclosed, there would be sufficient common left for the tenants — the injunction was dissolved upon the answer, on the ground that, instead of filing a bill in the first instance, and sub- mitting to this Court to regulate the enjoyment in the meantime, the plaintiff went first to Law, and having failed there, came here, not to establish his right at the hearing, but to prevent their enjoy- ment till the hearing ; and Lord Chancellor Eldon observed that if there was any hardship, it was better that it should fall on the (1) 17 Ves. 128. Northumberland, 17 Ves. 281 ; pi. 13, (2) 6 Ves. 147 ; v. Grey v. Duke of p. 30, ante. 2 H 2 468 TRESPASS. Part I. plaintiff than upon the defendants (1). And where the lord inclosed Sect. 3. P^-^t of the common, insisting by his bill that it was an improve- ment within the Statute of Merton, and that he had left sufficient common for the teijantsy and the tenants threw open the inclosure by force ; the Court, upon the principle of avoiding multiplicity of suits, granted an injunction ; and at the hearing directed an issue whether the defendant had a right of common, and whether suf- ficient common was left, and the injunction was continued in the meantime (2). And the Court will, by mandatory injunction, restrain a trespass the continuance of which will inflict irreparable damage upon persons in possession ; and damage which it is impossible to measure will be deemed irreparable. And where a bill was filed to restrain a railway company from placing an obstruction (a barrier, or strong wooden fence) partly on a public footway and partly on land belonging to the plaintiffs, a rival railway company, so as to block up the access to a station of the plaintiffs, and the bill alleged that the injury to the traffic by allowing the obstruction to remain would be irreparable, and that the act was done without any colour Trespass by of title by the defendants ; Vice-Chancellor Sir W. P. Wood held, restrained upon demurrer, that this was one of the exceptional cases in which ( ere). ^-^^ Court would interfere to restrain a trespass by a stranger (3). The Court wai 10- In Ooulson V. White (4) Lord Chancellor Hardwicke said pMrcon-*"^^^" that every common trespass was not a foundation for an injunction tinning so jq tJ^ig Court, where it was only contingent and temporary; but become a nul- that if it continued so long as to become a nuisance, the Court will grant an injunction to restrain the person from continuing it. Sporting in a 11. Where a receiver had been appointed in a creditors' suit, of restrained^ the office of Master Forester of a royal forest, an injunction was (here). afterwards granted to restrain certain persons who owned lands in the forest from sporting in it (5). Trespass not 12. An injunction will not be granted to restrajp a trespass, uniesTtres- unless the trespasser is insolvent, or the injury irreparable and passer insoi- destructive to the plaintiff's estate — to its verv nature and sub- yent, or irre- (1) Hanson v. Gardiner, 7 Ves. 305. 43 ; 15 W. E. 810 ; v. Lowndes v. BeUle, (2) Arthington v. Fawkes, 2 Vem. ante, p. 131. 356. (4) 3 Atk. 21. (3) London and Northwestern Eailw. (5) Blanchard v. Cawthome, 6 Sim. Co. V. Lancashire and Yorhshire Bailw. 155, Co., L. R. 4 Eq. 174 ; 17 L. T. (N. S.) TRESPASS. 469 stance — and such as calls for immediate relief (1), at least until the Part i. Chapter HI right is determined (2). There must be something particular or sbct. 3. special in the case, for which a Court of Law cannot afford adequate parable iniury, redress, and for which, either from difficulty of proof or some other or rigM deter- ... . mined, or cause, the party cannot obtain adequate satisfaction in the ordinary something course of law (3). " The interference of a Court of Equity, by case for which injunction, in a case of trespass to land, and where an action at caimot aferd law will lie, is of modem origin, and an exercise of power to be an adequate rcmcdv. justified only in a case of great and irreparable injury. Doubtless, And there too, the petitioner who inyokes it, in conformity with principle ^^^^fade and precedent, should shew at least a strong prima facie case of case of right. right " (4). But the Court may grant an injunction if the trespass Trespass should continue so long as to become a nuisance or a constant trespas^s grievance (5), or in cases of repeated acts and trespasses (6) ; as ^u^^ee or where, in asserting a public right of way by dedication, one re- continuous peatedly tore down fences on the land of another — as the acts, if and where allowed, might furnish ground for such claim (7). Srefp^ses. 13. In a bill to enjoin a trespass, and also for specific perform- ance, if the answer disproves the equity as to the agreement, but admits the trespass, the Court will not dissolve the injunction (8). 14. Where the plaintiffe asserted their right to certain mining au injunction claims, and complained of the defendant's unlawful intrusion J^^^'^i^^e ■*■ Trespass CQiIl- therein, and an injunction had been granted restraining certain "°' ^e <=on- .. , tinued after a acts 01 trespass done and threatened ; it was held that the suit was verdict for the substantially for trespass, and that the injunction was in aid of the * ^^ ^^ ' suit, and could not be continued after a verdict had been rendered for the defendants (9). (1) James v. Dixon, 20 Miss. 79 ; (Amr.) Foster, 6 Eng. 304 ; Wilson v. Hughell, (4) Per Butler, J., Falls, &c. v. Tib- 1 Morr. 461 ; Catching v. Terrell, 10 bets, 31 Conn. 168 (Amr.) Geo. 576 ; Shipley v. Bitter, 7 Ind. 408 ; (5) Whitfield v. Sogers, 26 MisS. 48 ; 5 Geo. 576 ; 26 Miss. 84 ; Oentreville, 7 Ind. 408 ; Moore v. Ferrell, 1 Kelly, (fee. V. Barnett, 2 Cart. 536 ; Brooks v. 7 (Amr.) Diaz, 35 Ala. 599 (Amr.) (6) Schetz's, &c 35 Perm. 88 (Amr.) (2) Schurmeier v. St. Paul, &c. 8 (7) Garpenter v. Qwynn, 35 Barb. Min. 113 ; Whitman v. St. Paul, &c. 395 (Amr.) lb. 116 (Amr.) (8) The Justices, &c. v. The Griffin, (3) Bethune v. WiUevis, 8 Geo. 118 ; &c. 11 Geo. 246 (Amr.) Anthony v. Brooks, 5 Geo. 576 ; 10 (9) Brennan v. Gaston, 17 Cal. 372 Geo. 576 ; The Justices, &c. v. The (Amr.) Griffin, &c: 11 Geo. 246; 26 Miss. 84 ( 470 ) Past I. Ohaptkb III, There is no right in a name en- titling to an injunction to restrain the use, except in oonneotion with trade. Sect. 4^ Name. 1. There is no right of property in a person to the use of a par- ticular name, to the extent of enabling him to prevent the assump- tion of his name by another, but it is otherwise as to the exclusive use of the name in connection with a trade or business : this right is recognised, and it is a fraud on the part of any one to assume it, colourably or otherwise, that being an invasion of another's right, and there is a remedy either at Law or in Equity against such a fraud (1). 2. Vice-Chancellor Sir J. Stuart refused an injunction, on behalf of a corporation called " The London Assurance," to restrain " The London and Westminster Assurance Corporation (Limited) " from using the latter title (2). The Court will punish as for a con- tempt those making the publication of its pro- ceedings the vehicle of a libel, but will not undertake to restrain pub- lication of every unfair report. Sect. 5. Pvhlishing, Printing, and Selling — Publication of Proceed- ings in Courts of Justice — Publication of Letters. 1. The Court will punish, as for a contempt, those who make the- publication of its proceedings the vehicle of a libel ; but although it has the power of restraining the publication of its proceedings pending litigation, it will not undertake to restrain the publication of every unfair report purporting to represent what takes place in open court. B. & Co. obtained a patent entitling them, as the inventors of a new mode of preparing thread, to use the term " glacd " or " patent glace." They ascertained that the defendants were selling thread by the name of " patent glace," and after a correspondence between the parties, B. & Co. filed a bill to restrain them from using the term. The Court directed a motion for an injunction to stand over, with liberty to the plaintiffs to bring an action. The plaintiifs published a report of the proceedings on the hearing of the motion ; this report, which was substantially correct, stated that it was established in evidence that the plaintiffs (1) Du Boulay v. Du Boulay, L. R. 2 P. G. 430; 17 W. R. 594 ; 38 L. J, (I'.O.) 35 ; 6 Moo. P. 0. C. (N.S.)31 ; 22 L. T. (N, S.) 228 ; v. ante, p. 347 ; et v. Hilliaid, Inj. p. 501, n., 2nd Ed. (2) Lmidon Assurance v. London and ]\'estiniiister Assrirance Corporation, S'2. L. J. (Ch.) 664. PUBLISHING, &o. -PUBLICATION OF LETTEES. 471 were the first to use the word or trade-mark in question, and that Part i. Oftapter TTT the Court had -refused to grant the injunction in the first instance seot. 5. on the ground of acquiescence. The defendants moved to restrain the publication of the report, on the ground that it was untrue, the fact being, that evidence was not gone into on the motion, and that it would have the effect of obstructing justice and prejudicing their case, and tended to influence the public mind, and was libel- lous and a contempt of Court. But upon the hearing of the motion, Vice-Chancellor Sir J. Stuart, and upon appeal the Lords Justices, considered that the publication, though unfair, was not a libel, and not such as would obstruct the course of justice, "and therefore refused the motion (1). And where proprietors of a newspaper had dissolved partnership, and one of them (the defendant) had agreed to purchase the plaintiff's interest, and before completion, and pending a suit for specific performance, the purchaser pub- lished statements as to the profits and loss of the paper in order to establish a company to carry it on ; the Master of the Rolls, Sir J. Eomilly, refused a motion for an injunction to restrain him pending liti- from publishing such statements (2). But pending litigation the ^lu ^'strain' Court will restrain the publication by any of the parties to the publication . by parties to suit 01 ex parte garbled accounts, calculated to prejudice the case suit of ex of their opponents, of any of the proceedings in Court or before SountT ^ the examiner. The circumstance that such publication is by way "^I'^i^^tsd to of defence, and in answer to similar publications by the other side, opponent's although it may excuse the party sought to be restrained from is no defence the costs of the motion for that purpose, will not prevent the done by-way Court from granting the injunction (3). °f answer. 2. The Court will restrain the publication of facts contrary to Court will agreement (4). Where, A. being indebted to the defendant, an lubuoation agreement was entered into by which judgment for the debt was contrary to ,.,,,,,, .'.„ agreement, to be signed, but not entered up, against A. for securing payment of facts. by instalments, the defendant agreeing not to enter up judgment (so as to get in the ' Tradesman's Circular '), nor publish it in any way, but shortly afterwards he threatened to sell the judgment-debt (1) Srook V. Evans, 6 Jur. (N. S.) 501. 1025 ; 29 L. J. (Ch.) 616 ; 8 W. E. 688 ; (3)' Goleman v. West Hartlepool 3 L. T. (N. S.) 571. BaMw. Go":, 8 W. E. 734. (2) Marshall v. Watson, 25 Beav. (4) Ayion. 3 Jur. (N. S.) 685. 472 PUBLISHING, &o.— PUBLICATION OF LETTEES. Paet I. at a periodical sale, which would necessarily involve, by advertise- Seot. 5. ' ment, the publication of A.'s indebtedness ; Vice-Chancellor Sir W. P. Wood, being of opinion that this threat was not bond fide for the purpose of sale, but for getting better terms from A., restrained such publication by injunction ; and A. having in the first place obtained an ex parte injunction, and the defendant having offered immediately, and before further expenses were incurred, to submit to a perpetual injunction, but refused to pay the costs, and A. thereupon brought the matter to a hearing, the Court held, that he was entitled to the costs to the hearing (1). A plaintiff 3. A plaintiff obtaining information from the production of information documents in the defendant's possession, is not at liberty to make tion o?doou^ ^^ public, and an injunction will, if necessary, be granted to restrain ments will be him • and it being put in evidence by the affidavits of the de- publishing it. fendants that the plaintiff had, pending the suit, published pre- judicial statements relative to the matters stated in question in the suit, the Court, as a condition for making an order for pro- duction of documents, required the plaintiff to undertake " not to make public or communicate to any stranger the contents of such documents " (2). Court refused 4. Where the plaintiff had contracted to correct and complete, publishing a ^^OT^ materials to be furnished by the defendant, a book which the work until defendant expressed his intention to write, and agreed also to had paid Supply the legal information connected with the subject, for which agreed sum i i • -jv. i ■ j for assistance the plamtili was to DC paid a certam remuneration, according to y p am 1 . ^j^^ number of pages the work might contain, the Court refused an injunction to restrain the defendant from printing, publishing, or selling the legal part of the work (which the plaintiff had con- tributed), with any material alteration or omission, and also refused an injunction to restrain the defendant from printing, publishing, or selling the work until he had paid the plaintiff the sum agreed upon for his assistance and contribution ; for such payment may be enforced at Law, and the title to it is not a ground for the inter- Purchaser of position of a Court of Equity (3). And, semble, unless there be a alter and deal Special contract, either express or implied, reserving to the author (1) Jamieson v. Teague, 3 Jur. (N. S.) (2) WiUiams v. Prince of Wales Life 1206. Company, 23 Beav. 338. (3) Vox V. Co.<; 11 Hare, 118. PUBLISHING, &o.— PUBLICATION OF LETTERS. 473 a qualified copyright, the purchaser of a manuscript with it as he Pakt I. ,,.,., 1, J J 1 -iu -i. 1, ii,- 1 thinks proper, Chaptek III. IS at liberty to alter and deal with it as he thinks gemtu. Sect. 5. proper (1). 5. Where there are two rival works, th,e Court will restrain the Court will proprietor of one of them from advertising it in terms calculated advertising to induce the public to believe that it is the other work, but will ^^j^^o^as to not restrain him from publishing an advertisement tending to dis- induce public '^ ° ° to beUeve it parage that other work (2). the other, 6. The right and property of an author or composer of any restrain dis- work, whether of literature, art, or science, in such work, unpub- advertSf- lished, and kept for his private use or pleasure, entitles the owner ments of the to withhold the same altogether, or so far as he may please, from the knowledge of others ; and the Court will interfere to prevent Publication of Q f*3,rfl lookup the invasion of this right by the publication of a catalogue con- containing a taining a description of such work (3). And where a bill filed by A. of ^n'^work against C, stated that A. and B. had together made various etchings °^ literature, J.,. ,.,. ,,.. art, or science lor their own amusement, and without any view to publication, and unpublished, that C. had improperly and surreptitiously obtained impressions of ^^ those etchings, and had printed and advertised for sale a catalogue of the etchings ; upon affidavits in support of the bill, an in- junction was granted to restrain C. from publishing the catalogue. 0. put in an answer, in which he stated that he believed that the impressions had not been improperly obtained, but did not suggest any mode in which they could have been properly obtained ; upon a motion by C, after answer, for dissolving the injunction, it was ordered that the injunction should be continued (4). And C, having at the suit of A. and B. submitted to an injunction re- straining him from publishing the etchings, the work of A. and B. respectively, was not allowed to object to an injunction, granted on the application of A., restraining the publication of a catalogue or description of the etchings, on the ground that it is too extensive, as not clearly identifying which of such etchiogs belong exclusively to A. (5). And where a party obtains possession by purchase of Party obtain- impressions of etchings, the plates of which are the property of Slfnr^f '^^^" another, knowing that the vendor had obtained such impressions ^latS ^^^ (1) Oox V. Oox, 11 Hare, 118. & G. 25 ; 1 H. & Tw. 1 ; 2 De G. & (2) Seeley v. Fisher, 11 Sim. 581. Sm. 665 ; 3 Jur. 507. (3) Prince Albert v. Strange, 1 Mac. (4) lb. (5) lb. 474 PUBLISHING. &o.— PUBLICATION OF LETTERS. Part I. Chapter III. Sect. 5. through a breach of trust, the Court will interfere by injunction, and, without giving him the right to try the question of property whioli are ^* Law, will Order the impressions to be delivered up ; and where the another's material on which the impressions are taken, as in this case, are property, ^ with know- substantially worthless, except for that in which the possessor had they were HO property, viz. the impressions, the Court will order their de- Wh o^ «t™«tion (1). trust, will be ordered to deliver them up. 7. An injunction will be granted against third persons publishing lectures orally delivered (which have been substantially reduced into writing), who has procured the means of so doing from per- sons who attended the oral delivery, and were bound by the implied contract (2) ; and a person who attends oral lectures is not justified in publishing them for profit, and an action will lie against him for doing so (3). But qusere, whether there is any legal right of property in the sentiments and language of a lecture delivered orally, and which cannot be shewn to have been reduced into writing? (4). But persons who attend oral lec- tures, though not reduced into writing, and whether pupils or otherwise, will be restrained from publishing them, such pubHca- tion being a breach of trust and violation of confidence (5). Where the Court is called upon to restrain publication, on the ground that it is a piracy of a composition which has been sub- stantially reduced into writing, it is the duty of the Court to see that the plaintiff produces his written composition (6) ; and an piracy^f ™'^i'^j^'^°*^°'^ ^^^^ '^^^ ^® granted to restrain an alleged piracy of lectures de- igctures delivered orally, when no written composition, substantially unless written the same with these lectures, is produced (7). lectures pro- duced substantially the same. Partner in a 8. The Court will not restrain one of the several partners in a patent from publishing a book containing an account of the in- vention (8). Third persons restrained publishing lectures substantially reduced into writing, orally de- livered. Person at- tending lectures can- not publish them. No injunc- patent not restrained publishing an account of invention. (1) Prince Albert v. Strange, 1 Mac. & G. 25 ; 1 H. & T. 1 ; 2 De G. & Sm. 665 ; 3 Jur. 507. (2) Abernethyv. Hutchinson, 1 H. ife Tw. 28. (3) lb. (4) S. 0. 3 L. J, (Ch.) 209 ; 1 H. & Tw. 28. (5) lb. (6) Aberneihy v. Hutchinson, 3 L. J, 209. (7) lb. (8) Hau'kim v. Blackford, 1 L. J. (Ch.) 142. PUBLISHING, &0.-PUBLICATION OF LETTEES. 475 9. Where letters written by the plaintiff to the defendant had Part I. been returned by him, with a declaration that he did not consider sect. 5. himself entitled to retain them, the Court restrained the publi- publication cation of copies taken before the return, without the knowledge of letters ^ restrained. of the plaintiff, though represented by the defendant as necessary for the vindication of his character. The jurisdiction to restrain the The jnrisdic- production of letters is founded on a right of property in the ^^ ^ jigjjt of writer (1). But the Court will not grant an injunction to restrain property m \ ' _ p •> writer. the publication of letters on a principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of that friendship affords a reason for the interference of the Court (2) ; and the publication of letters may be restrained, although not designed for profit (3). But the acts of the party may supply reasons for not restraining the publication of letters (4), and the Lord Chancellor (Lord Eldon) also ruled that the persons receiving letters may destroy them (5). 10. In Oranard v. Dunkin (6) the Court granted an injunction. Executor on the application of the executor, to restrain the defendant from Zbijcation™ publishing letters the property of the testator. And in Thompson °f testator's v. Stanhope (7), the Court granted an injunction to restrain the Executor of executor of the person to whom they were written from publishing ^^q^ Mters private letters without leave of the executors of the persons who written wrote them. But in Gee v. Pritchard (8) Lord Chancellor Eldon publishing expressed his doubts relative to the jurisdiction of this Court over ^"'" the publication of letters, but said that he would not unsettle doc- trines settled for forty years together; and that if he was called upon to lend his assistance to unsettle these doctrines, on any doubts he might entertain, he would lend it only when the parties brought them into question before the House of Lords. 11. Upon a motion to restrain the defendants from printing, pub- lishing, or selling a poem (' Wat Tyler '), and from causing the same to be printed, published, or sold, the Court refused an injunction to restrain the publication of the work until after the plaintiff should have established his right to the property by an action, on the ground (1) Gee v. Pritchard, 2 Sw. 403. (5) Id. 418. (2) Id. 413. (6) 1 Ball & B. 207. (3) Id. 415. (7) Amb. 737. (4) Id. 427. (8) 2 Sw. 422. 476 PUBLISHING, &0.-P OBLIGATION OP LETTEE8. Part I. that it had been left for twenty-three years by the author in the Sect. 5. hands of the bookseller, to whom it was originally sent, with an in- tention of its being published, although that intention was after- wards relinquished. The work had passed into the hands of the defendant, who published it without the consent or privity of the author (1). But in Maeklin v. Biehardson (2) the Court granted an injunction to restrain the publishing in a magazine of a ferce occasionally suffered by the author to be acted, but never printed or published. However, now, under the 5 & 6 Vict. c. 45, s. 20 (An Act to amend the Law of Copyright), it is enacted that the first public representation or performance of any dramatic piece (or musical composition) shall be deemed equivalent, in the construc- tion of that Act, to the first publication of any book. No injunction 12. The Court will not interfere by injunction, upon the author's *ublicaMrai application, to restrain the publication of a work which is of such of work, a nature as that an action could not be maintained upon it for where, from its nature, no damages (1). upon it for 13. Upou a biU stating that, in pursuance of an order of the damages. g^^j^g ^f L^^^g^ ^^^^^ the 12th of June, 1806, that the Lord Chancellor should give orders for the printing and publishing the trial of Lord Melville, and the several questions put to the judges, and their answers, and that no other person should presume to pub- lish the same ; the Lord Chancellor appointed the plaintiffs to print and publish the whole proceedings in the House of Peers upon the impeachment, and forbade any other person to print and publish the same ; and further stating that the plaintiffs were employed by the House of Lords to take down the trial in shorthand, and had, at a considerable expense, been preparing to publish it, and that the defendants had published a work purporting to be the trial of Lord Melville ; and praying an account and injunction. On a motion for an injunction, the Lord Chancellor, Lord Erskine, said that upon the case of Bathurst v. Kearsley (Easter Term, 1756, in Chancery), which could not be distinguished from this, and the practice of the House of Lords, uniformly asserting its authority to exercise the privilege {i.e., of appointing a person by similar orders to that under which the plaintiffs acted, with the prohibition of publications by other persons), he might grant the injunction, but that he did it, not (1) Souther] V. ^Iicnvoud, 2 Mcr. 43u. (2) Amb. 694. PUBLISHING, &o.— PUBLICATION OF LETTEES. 477 upon anything like literary property, but upon this only, that the Pakt i. plaintiffs were in the same situation, as to this particular subject, as sect. 5. the King's printer, exercising the right of the Grown as to the prerogatiye copies, and that he should not state anything as to other Courts, but should act upon that precedent, which he carried no farther than by granting an injunction to the hearing, and on a subsequent occasion said he desired that it should be understood that he had not delivered any judgment in this case further than by granting the injunction until the hearing, upon the precedent of Bathurst v. Kearsley, and should therefore consider the question as open in any future stage. A demurrer was afterwards put in, but it was never argued, a compromise taking place. 14. In Sogg v. Kirhy (1) Lord Eldon granted an injunction to Publication of restrain publishing a magazine as a continuation of the plaintiff's ^ ™^inJJSion magazine in numbers, and from printing or publishing communica- °^ plaintiff's, cations or letters admitted by the answer to have been received from also the pub- correspondents by the defendant while publishing for the plaintiff; respondence. but it was held that the defendant was not prevented publishing an original work of the same nature, and under a similar title (2). 15. Where a voyage of discovery has been executed, and a narrative of it prepared under the orders of the Crown, the narrative is the property of the Crown ; but on a bill by a publisher authorized by the secretary to the Board of Admiralty to publish such a narrative, the profits remaining at their disposition, an injunction restraining publication by a stranger was dissolved, as, so far from establishing any right to a monopoly in himself, the plaintiff stated the use of it to be in the defendants, the Lords of the Admiralty (3) 16. In Buhe of Qwensberry v. Shebbeare (4) the Court, on a bill by the representatives of the Earl Clarendon, granted an injunction to restrain the printing of an unpublished MS., viz., his ' History of the Eeign of Charles the Second,' a copy of which had been by the representative of the author given to a person under whom the defendant claimed, but not with the intention that he should publish it. 17. The Vice-chancellor of England, Sir L. Shad well, held upon The proprietor the construction of the 5 & 6 Vict. c. 45, s. 18 (An Act to amend °^ ^^ Bnoyclo- '■ psedia cannot (1) 8 Ves. 215. (2) lb. (3) Mcol v. StocMale, 3 Sw. 687. (4) 2 Eden, 329. 478 PUBLISHING, &o.— PUBLICATION OF LETTEES. Pabt I. the Law of Copyright) that the proprietor of an Encyclopaedia, who Sect. 5. employs a person to write an article for publication in that work, publish in a ''^^iJiot, without the writer's consent, publish the article in a sepa separate form rate form, or otherwise than in the Encyclopaedia, unless the article an article .11 written for the was written on the terms that the copyright therem should belong noyo opse la. ^ ^-^^ proprietor of the Encyclopaedia for all purposes (1). Extracts from l^- Where the defendant had, in two numbers of a periodical a farce for work of theatrical criticisms, inserted detached extracts, to the purposes of a _ ' criticism, not extent of SIX Or Seven pages, from a farce, the property of the plain- eient to justify tiff, containing forty pages interspersed with criticisms ; a bill for ^mction.'^ a perpetual injunction, and an account of the profits of the numbers, which did not amount to £3, was dismissed with costs ; the Master of the Eolls, Sir Thomas Plumer, being of opinion that the publica- tion in which the plaintiff's work had been inserted being in the nature of a magazine or review, consisting of criticisms, and extracts to serve as a foundation for the criticisms, the defendant had not transgressed the allowed limits (which were not easily defined) (2). Printing a 19. Printing a brief before the cause comes on is a contempt of the^c^^s^r^ Court, not that the offence consists in the printing, for any man comes on, to mav give a printed brief, as well as a written one, to counsel : but prejudice the . o i rn ■ i • t • world, is a the contempt of this Court is the prejudicmg the world thereby con emp . ^^^j^ regard to the merits of the cause (3). The register ^O. In Fleming V. Newton (4), a case of Scotch Law, the House of protest for ^f Xiords held that the register of protest for non-acceptance and non-accept- • '1 p i_ • ance, &c., of non-payment of bills of exchange and promissory notes, established exchange, &c., by the Scotch Acts of 1681 and 1696, and the 12 Geo. 3, c. 72, and Scotch Acts of 23 G-eo. 3, c. 18, was a public document to which everybody had 168], &c., is a a right of access, and that the publication thereof in a printed public doou- ° . Ti_ 11 1 . ment, and no paper does not constitute a libellous publication ; and where a be Ranted to person whoso name was upon this register applied to the Court of "^uSrcation Session for an interim interdict to prevent, so far as his own name was concerned, the publication of a copy of the register, and the Court below decreed for the application ; the House of Lords, reversing that decree, held that the interdict ought not to have been granted, (1) Bishop of Hereford v. Griffin, (3) The case of Captain Perry, cited 16 Sim. 190. 2 Atk. 471. (2) WhitMngham v. Wooler, 2 Sw. (4) 1 H. L. G 363. 428. SECRETS. 479 and also that the costs in the Court below should be given (1) ; Paet I. and further, that an interdict, though in form ad interim only, must seot. 5. be treated as a final judgment, and may be the subject of appeal to the House of Lords (2). Sect. 6. Secrets. 1. A Court of Equity will not interfere on points of morals, except No inter- when they are mixed up with the administration of civil rights in points of property. But confidential communications involving fraud are ^unggted^^^^ not privileged from disclosure ; and where, in answer to a bill for with civil an injunction to restrain a former clerk of the plaintiffs from dis- property. closing any of their dealings and transactions, the defendant stated co°mmimie'a- that the plaintiffs were in the habit of conducting their business in ti™s mTolv- a fraudulent manner, and specified a particular instance ; and, in are not "DTI vil G STGO. support of his answer, the defendant filed interrogatories for the examination of the plaintiffs as to the fraudulent transactions, which they declined to answer ; on exception to the answer, Vice-Chan- cellor Sir W. P. Wood held that there was no privilege to protect them from answering, the discovery being material to support the defendant's answer, which, if proved, would be a complete defence to the bill (3). 2. Where a party had obtained the knowledge of a secret from a secret of one of the former partners in a trade, in breach of confidence, the medlcine'^"^^ Lords Justices — confirming the decision of Vice-Chancellor Sir obtained by . breach of G. J. Turner upon an interlocutory motion — restrained him from tmst and making use of it, the secret here being the compounding of a ^m be pro- medicine, not being the subject of a patent, and restrained the sale *^°*<"^- of such medicine, the knowledge of the secret having been acquired in violation of the contract of the party by whom it was communi- cated, and in breach of trust and confidence; the plaintiffs, by their counsel, undertaking to be answerable for damages or com- pensation, and subsequently the defendant submitted to an order making the injunction perpetual (4). The Vice-Chancellor said that he conceived that the Court, in interfering in such cases, Q.)Memingy.Ne'wton,l'E.l,.G.S63. (N. S.) 39 ; 26 L. J. (Oh.) 113. (2) lb. (4) Morison v. Moat, 21 L. J. (N. S.) (S) Oartside v. Outram, 3 Jur. Ch. 248; affirming S. 0. 9 Hare, 241. 480 SECEETS. Part I. fastens the obligation on the conscience of the party, and en- ChapterIII. j. . . , . J, . Sect. 6. lorces it against him in the same manner as it enforces against a party to whom a benefit is given the obligation of perform- ing a promise upon the faith of which the benefit has been con- ferred (1). 3. If a partner in business, in which a secret process of manu- facture and composition of materials is used, who has not, under the partnership contract, a right to the knowledge of the secret, should openly take part in the manufacture, and should, with the knowledge and concurrence of his partners, be permitted to acquire a knowledge of the process and ingredients ; the Vice-Chancellor said that it would be difScult for any of those partners afterwards to restrain him from using any knowledge so acquired, or any secret so disclosed ; they would, he thougtit, in such circumstances, be considered to have waived any right to preserve the secret for their separate benefit (2). In this case the injunction restrained the sale of medicine by the defendant, under the name of the medicine prepared according to the secret prescription, not on the ground of the use of the name alone, but because it was by the name that the defendant was availing himself of the breach of feith and contract. But qumre, whether, apart from that ground of interference, the Court would have restrained the use of the name before the plaintiffs' right had been established at Law? (3) 4. A plaintiff not having the privileges of a patentee may have no title to be protected in the exclusive manufacture and sale of a medicine against the world ; but he may, notwithstanding, have a good title to protection against a particular defendant (4). Accountant 5- The Court granted an injunction to restrain the disclosure of Ssclosine secrets obtained from the books and papers of the plaintiffi (a firm secrets of his of attorneys), and of their clients, and come to the defendant's employers. , knowledge in the course of his employment as the plaintiffs accountant, and from communicating any of the information pos- sessed or acquired by him relating to the co-partnership, or the affairs or secrets thereof, or the clients thereof, by means of his having been so employed as above-mentioned (5). (1) Morisonv. Moat, 21 L. J. (N. S.) Ch. 248 ; affirming S. C. 9 Hare, 241. (2) lb. (3) lb. (4) lb. (5) Evitt T. Pi-ice, 1 Sim. 483 ; v. C'hoJmondeley v. Clinton, 19 Ves. 261. ACCOUNT. 481 6. In Bryson v. Whitehead (1), Vice-Chancellor Sir J. Leach PartI. decreed specific performance of an agreement to sell the goodwill seot. 6. of a trade, and the exclusive use of a secret therein. The Vice- specific per- Chancellor said, that though the policy of the law would not formance of " '^ •' _ agreement to permit a general restraint of trade, yet that a trader might sell a sell a secret, secret in business, and restrain himself generally from using that secret. 7. Where the sole proprietor of a recipe for making a medicine a secret for assigned it, on the marriage of his daughter, to trustees in trust medicine held for her and her husband for their lives, and directed that after "pon tmst of ' _ a settlement. their decease it should be sold for the benefit of their children, and the mother destroyed the recipe, and verbally communicated the contents to the eldest son for the benefit of the other children ; on a bill by some of the younger children against him, he was declared to hold the secret upon the trusts of the settlement, and was decreed to account for the profits made by the sale of the medicine after his mother's death ; and, as a sale was impracticable, an issue was directed to ascertain the value of the secret (2). Sect. 7. Account. 1. In the South-Eastern Railway Company v. Brogden (3), where a contractor having executed works for a railway company under two contracts, distinguished respectively as Contract No. 1 and Con- tract No. 3, had brought an action against the company for the works executed under Contract No. 1 ; and the company filed a bill to restrain this action, alleging that the plaintiffs demand depended on the result of complicated accounts, the company being entitled to various items of set-off, and that the account under Contract No. 1 was so blended with that under Contract No. 8, that what was due to the contractor could not be ascertained without taking both accounts ; and the contractor, by his answer, denied any complica- tion in the accounts, and that the accounts were blended, and he admitted the receipt of various sums in payment of works done (1) 1 Sim. & S. 74. 398 ; S. 0. suh nom. Green v. Church, (2) Green v. Folgham, 1 Sim. & S. 1 L. J. (Ch.) 203. (3) 3 Mac. & G. 8. 2 I 482 ACCOUNT. Part I. Chapter III, Sect. 7. If two ac- counts can be taken at Law, the blending of the two no ground for interference of Equity. But if claims are set up which cannot be properly decided at Law, Equity wiU restrain the action. Delay no ground for refusing interference where Court of Law can- not possibly deal with the matter. under each of the contracts, and also of a large sum which, not being appropriated by the company, he had appropriated partly to one contract, partly to the other ; and he also shewed that the several heads of set-off were free from all uncertainty, and then stated that there was work done the amount of which had not been ascertained, and other matters in respect of which he had claims on the company : the Court held, on appeal from an order of the Master of the EoUs granting an injunction, that, taking into account the explanations given in the answer, there would be no difSculty in the company proving at Law the claims of set-off under Contract No. 1, and that no case for equitable interference was established on this ground ; but that before the contractor could recover anything under Contract No. 1, he would be obliged to prove that he had a demand exclusive of that contract, which justified his appropriation of that part of the sum received from the company which he had not appropriated to Contract No. 1 ; that thus the accounts under Contract No. 3 would have to be taken, and that in this way the accounts of the two contracts were blended ; but that it being equally possible to take at Law, with justice to both parties, the accounts under Contract No. 3 as those under Contract No. 1, the blending of the two accounts formed no reason for withdrawing the case from the jurisdiction of a Court of Law ; but that the other claims set up by the contractor in his answer were such as could not be properly decided in the action, and that therefore the injunction granted was proper, and that the delay of the company in filing their bill was no ground for refusing to interfere in a case where it was clear that the Court of Law could not possibly deal with the subject-matter (1). The Lord Chancellor (Lord Truro) said that he thought sufficient distinction had not (in the course of the argument) been made between cases where this Court would entertain jurisdiction over a matter of account, and where this Court would withdraw a matter of account from a Court of Law, and tliat there were many cases in which it seemed to him, looking through the whole of the decisions, that this Court would properly entertain jurisdiction on the matter where, if the party making the claim proceeded at Law, this Court would not, as a consequence, because it would itself exercise (1) South- Eastern Bailw. Cn. \. Brogrhn, 3 M.ac. it G. 8. ACCOUNT. 483 jurisdiction if appealed to, withdraw it from the jurisdiction of a Pabt I. Court of Law, and that he did not think the cases at all warrant Seot. 7. that ; and that it appeared that in certain cases, and where the account was 6f such a nature that it was thought justice could not be done at nisi prius, this Court would withdraw the matter, and would take the exclusive conduct and decision of the case, although it was a subject of legal jurisdiction, and the demands on both sides were of a legal nature; and that doing this,' this Court would either itself decide the matter, or, if it be matter of law, and fit for the decision of a Court of Law, would put it into such a shape as to make the decision practicable, where it was thought not to be so in the general form in which the claim might have been obtained ; and the Lord Chancellor held that, considering that the plaintiff's right to the injunction at all seemed to proceed on the ground that a Court of Law could not do justice between the parties, he had some difBculty in the application of the doctrine of delay, and where he was satisfied that the case was one of such a nature as to be quite impossible for a Court of Law to get through at all, which, coupling the answer with the schedule, he thought embraced the present case, then it appeared to him that he could not give effect to the doctrine of delay ; but that the case, however was one in which, considering the delay of which the company had been guilty in making that application (which delay, he found, much exceeded what in several instances this Court had deemed sufficient to disentitle the plaintiff to ask for an injunc- tion), he did not think it expedient to give the costs of the motion, and that the appeal would therefore be dismissed, but without costs. And where the plaintiffs covenanted with the defendants (a railway company) to do certain works within a given time, to the satisfaction of the engineer of the company, and that if the works should not be so done the company might enter into possession of the plaintiffs' plant, and complete the works ; and the company covenanted to pay for the works from time to time during their progress, according to the certificate of the engineer, and all disputes were to be referred to the latter ; and the works were not completed within the period originally limited, and some time afterwards the company gave notice of their intention to enter under the agreement, and complete the works; and the 2 12 484 ACCOUNT. Pabt I. Chapter III. Seot. 7. Fraud (here) ground of relief on a bill for an account. Action not restrained where the bill does not establish a case for an account. plaintiffs filed a bill stating that they had done all which they had contracted to do, except what the company had prevented them from doing, and that they had not been fully paid for the work done — alleging that the engineer fraudulently and collu- sively with the company certified a less amount than what was due to the plaintiffs, and praying for an injunction and an ac- count ; a demurrer for. want of equity was overruled, on the ground that the plaintiffs would be entitled to some relief at the hearing, and that the species of fraud alleged in the bill gave jurisdiction to the Court, although the plaintiffs had not com- pleted the whole eff' their work (1). The equitable jurisdiction in matters of account is concurrent with that of Courts of Law, and no precise rule can be laid down ias to the cases in which it will be exercised ; this Court reserving to itself a large discretion upon the subject, in the exercise of which it will pay due regard to the nature of the case, and the conduct of the parties, and will not restrain an action already commenced merely on the ground that from the number and complexity of the items in the account a judge at nisi jprius would urge the parties to refer it ; and an injunction in such a case was refused on the ground of delay, the bill not having been filed until six months after the action was commenced, and the injunction not moved for until another six months after answer, and when the cause was ready for hearing (2). 2. In Moses v. Lewis (3) a demurrer was allowed to a bill for a general account, and lor an injunction to restrain the defendant from taking out execution on a judgment recovered by him in an action at law, because the bill did not establish a case of account on its own statement, and it was too late for the plaintiff to ask the interference of the Court, after having suffered the action to be tried at nisi jprius. 3. In Crease v. Penprase (4), an action having been brought by a toller or agent of tin-mines against his principal, the lessee of the mines, upon a bill for an account, and an injunction to restrain (1) Waring v. Manchester, Sheffield, (2) South-Eastern Bailw. Co.v. Mar- aud Lincolnshire Bailw. Co., 2 H.& Tw. tin, 2 Ph. 758 ; 1 H. & Tw. 69. 239. (3) 12 Price, 502. (4) 2 T. & C. 527. ACCOUNT. 485 the action, filed by the defendant at Law ; after an answer put in, Pabt i. admitting unadjusted accounts, the Court refused, on motion, to sbot. 7. dissolve the injunction, as the question might be decided and the "■ accounts taken in a Court of Equity. 4. In Gletmie \. Imri (1) it was held that a Court of Equity will No account not take an account of debts one way, and of damages the other, ^i^ere debt nor in any case where the subject as to which the account on one damages otiier side is required would not be a matter of set-off at Law : though it side, nor ^ where there does not follow that where there would be a set-off at Law there would be no would necessarily be an account in Equity. Accordingly, where <,f ti^e subject the plaintiff in the course of various dealings had given various '^^l^'e^ bills of exchange in payment of goods supplied, and alleged by though set-off i-i-iii 1 1P1 IP-IT 1 ,at Law, still bis bill that a large parcel of the goods furnished was, by the an account fraud of the defendant, very deficient in quantity and quality ; the refused. Court refused to grant him either an account or an injunction, inasmuch as his object was to reduce the amount of the bills of exchange by the damages which he claimed for the alleged breach of contract, and that as this was not the subject of set-off at Law it could not be the subject of account in Equity. 5. Where A., having dealings with B., C, and D., who traded under the firm of B. & Co., and having become indebted to them on several transactions, entered into a covenant with them for pay- ment of the whole amount, and B. and D. afterwards died, and C. retired from the firm and assigned his interest in it to E., and the business of the firm was continued by E. and F. under the firm of B. & Co., and A. continued his dealings with that firm, and made various payments to them ; upon a bill brought to restrain an action on the covenant brought by C. against A., the Court held, that although, on the ground of intricate transactions between A., C, and E., a bill for an account might lie by A, against the two latter, yet such a bill was not sustainable against the other partners also upon a mere general charge of mutual dealing, and no special connection appearing between their accounts and those of A., C, and E. (2). 6. After judgment and execution in ejectment for non-pay- ment of rent, a bill does not lie at the suit of the tenant for an (1) 3 Y. & 0. 436 ; 3 Jur. 432. (2) Jones v. Maund, 3 Y. & C. 347. 486 ACCOUNT. Pabt I. Chaptek III. Sect. 7. As between landlord and tenant, if accounts too complicated, to be taken at Law — eject- ment for non- payment of rent restrained and account taken. account, and to be restored to the possession on payment of what shall appear due, without bringing the rent and costs into Court, if the question appears to be merely, whether so much rent was due, and not to be of too complicated a nature to be tried at Law ; and the account sought in this case consisting only of three disputed items, admitted to have been paid, if at all, on account of rent, and being such as a jury might easily have investigated, the Court dismissed the bill with costs. It would have been otherwise, senible, if there had been a ground of defence which could not be set up in ejectment, but which it was unconscionable in landlord not to admit, or if an account had been so complex that it could not properly have been taken at Law (1). 7. Where a tenant having a claim against his landlord for un- liquidated damages, occasioned by cutting timber on the demised premises, in pursuance of a power so to do reserved by the lease, and the landlord brought an ejectment for non-payment of rent ; on a bill filed by the tenant stating his claim, and charging that if ascertained and credit given for it there would not be a year's rent in arrear, on that fact being established by an issue the tenant was restored to the possession (which the landlord had obtained in the meantime) on paying the balance due by him, and decreed entitled to an account of mesne profits, &c. (2). 8. Where there have been various dealings between landlord and tenant, so as to produce an account too complicated to be taken at law, and the landlord has brought an ejectment for non-payment of rent, the tenant may file a bill before judgment at Law for an account on the footing of those dealings, and to have the balance applied to the rent claimed to be due, and the tenant need not bring in the rent under 4 Geo. 1, c. 5 (3). 9. Where the plaintiff in a suit for an account had obtained, after answer, an injunction to restrain the defendant from suing him for a sum of £3000, which formed an item in such account, but such injunction was not granted till the day of trial, and the defendant obtained a verdict for the £3000 ; the Court, adverting to that circumstance, and also to others which came out in the (1) O'Mahony v. Dickson; 2 Sch. & (2) Seasley v. D'Araj, 2 Sch. & Lef. Lcf. 400. 403, n. (3) O'Connor v. Spaight, 1 Sch. i- Lef. 305. ACCOUNT. 487 evidence of the cause, allowed the £3000 to stand as an item in Paet i. Chapteb III. the account (1). Sect. 7. 10. Where a decree giving relief to a party vphose title was gone Xdeoreeof" at Law directs the accounts on the rents reserved in lond fide this Court does not pre- leases of tenants not parties to the suit, the party relieved will be judice rights restrained from proceedings at Law to evict the tenants, they being parties to suit. tacitly protected by the decree ; for a decree of this Court always guards against the rights of persons not parties to the suit, for it gives relief on the terms that third persons not parties to the suit shall not be prejudiced (2). 11. The bare relation of principal and agent is not sufficient to Bare relation entitle the former to relief in Equity if the account can be fairly and^^eS''^ tried at Law (3). Where an action at law had been brought to ^°^^ ^°^ ^ ' . . . 1 entitle prm- recover the produce of some foreign specie remitted by a merchant oipal to an abroad to an agent in London, and the agent filed his bill, alleging j, ' , , generally that there were mutual deahngs and transactions between dealings • 1 -1 -111 » 1 between prin- the parties, and praying that an account might be taken of them, oipal and and for an injunction, the Court allowed a demurrer (4). And guttle agent where a trading firm agreed to give to an agent a commission on *° ^^ account. orders obtained by himself, and a commission at a different rate on orders not obtained by him, but given by persons first introduced by him ; Lords Justices Knight Bruce and Tui-ner held, reversing a decision of Vice-Chancellor Sir W. P. Wood, that the fact that the agent must in general be ignorant of the latter class of orders did not entitle him to file a bill against his principals for an account of what was due to him for commission, but that his remedy was at Law (5). But the first duty of an agent, receiver, trustee, or where agent executor, is to be constantly ready with his accounts : and where °^g}^<'*^ t° ' render owners of a privateer acting for themselves and the crew, in the accounts, sale of the prizes, had neglected to render accounts, and delayed entitTid t"an the distribution of the proceeds ; upon a bill by the crew for an '^°°°""'- account, and distribution of the prize-money, the owners were charged with interest on the balances, and costs (6). (1) Abbey v. Fetch, 1 Y. & C. Ch. (4) Frietas v. Dos Santos, 1 Y. & J. 258. 574 ; see also 2 Y. & J. 33. (2) Shine v. Gough, 1 Ball & B. 436. (5) Swath v. Leveaux, 2 De G. J. & (3) King v. Bossett, 2 Y. & J. 33. S. 1. (6) Pearse v. Qreen, X Jac. & W. 135. 488 ACCOUNT. Part I. 12. In Cooper v. Eaiton (1) the Court allowed a demurrer to a Chapter III. , .,, „ , ' , f -n ^ ^• j x Sect. 7. bill tor a general account to be taken ot all dealings and transac- Mei-e matter" *'°^^ between the parties, and for an injunction to restrain the °ti^- w™ defendant from taking out execution on a judgment recovered by at Law dis- him in an action, on the grounds that the statement in the bill did restrain pro- not furnish such a case of matter of account between the parties and pifintiff"' s° ^^ to entitle the plaintiff to the interference of the Court on (here) came principles of Equity, being nothing more than matter of set-off, or after he had Other defence at Law ; and if it had been a stronger case, the action to be plaintiff, after having suffered the action at law to be tried and determined at determined at nisi prius, had come too late to ask for the inter- msi prius. •*• ference of the Court (2). After an 13. After an account taken under a decree a party shall not be account under m , . i i ,i , i i • ■ . t a decree, no allowed to Overhaul the account by brmgmg an action at Law on aUowedTt ^ ^^® Same subject-matter. In such a case the defendant at Law Law to over- ought not to appear in the action, but ought to apply to this Court account. for an attachment ; but having suffered the action to proceed, and should not then filed this bill, the defendant at Law was held liable to the appty for an '^°®*® °^ *^® action, and the proceedings in this cause were stayed, attachment, -^yith liberty for all parties to apply in the original cause (3). Court will 14. The Court will endeavour to assume jurisdiction in matters assuml°j!iris°- °^ account where doing so will promote substantial justice between diction m ^]jg parties. And where, on contracts made by a builder to execute account, works, three actions had been commenced by the builder against promote sub- his employer for the payment of moneys alleged to be due under «ce°*' Acmunt ^'^^ contracts, and these actions had been consolidated at the ^f h^^ld* ^"^' instance of the employer, who then commenced two actions against against the builder for breaches of contract, and the builder alleged that emp oyer. j^^ ^^^ unable to prosecute the actions commenced by him, because the inspecting architect had been prevented by the act of the employer from giving a conclusive certificate as to the work done ; upon a bill by the builder for an injunction to restrain the actions, and for an account of what was due, and for payment, Vice-Chan- cellor Sir J. Stuart held, that the case was one in which the Court would exercise its jurisdiction in matters of account, and accounts and inquiries were ordered accordingly, whether anything, and (1) 12 Tii. 502. (2) lb. (3) Bell V. (fReilly, 2 Sell. & Let. 430. SET-OFF. , 489 what, was due to the plaintiff in respect of works executed and Pabt i. materials supplied, having regard to the circumstances under sect. 7. which the works were carried on ; and whether anything, and what, was due to the defendant from the plaintiff in respect of breaches of contract, without prejudice to aiiy question of waiver, and further consideration and costs were reserved (1). 15. Where it is unquestionable that a Court of Law can do as Where it is full justice to the subject in dispute as can be done in Equity, this ^bie that a Court will not interfere to stay the proceedings at Law (2). But ^an do^I/fuTl if there be any doubt about that, the plaintiff has a right to main- justice in the tain his suit m this Court, m this case for an account, &c. ; and Court of when. the completeness of the relief at Law is doubtful, and ques- Equity will tions of account, of the right to raise a case of wilful default, and i^ot interfere , ^ to stay pro- of fiduciary relationship between the parties, are involved, the ceedings at Court will entertain a suit for the purpose of transferring the pro- g^j if there ceedings from Law to Equity, and will grant an injunction until ^^ any doubt the hearing upon the terms (here) of giving judgment in the said plaintiff can action to be dealt with as the Court should direct (3). suit. 16. On a bill to enjoin a judgment, with a prayer for an account, where the defendant goes into the account, it is too late after the testimony is closed for the complainant to object that the Court has not jurisdiction of the subject-matter of the account (4). Sect. 8. Sd-off. 1. The mere existence of cross-demands is not sufScient, and The mere still less will the Court interfere, on the ground of equitable set-off, cSe^aads to prevent a party from recovering a sum awarded to him by a entitled art jury as damages for a breach of contract, merely because there is *" prevent the an unsettled account pending between him and the party against suTawded (1) JDahbs V. Nugent, 11 Jur. (N. S.) v. Brogden, 3 Mac. & G. 8. 943; 14 W. E. 94; 13 L. T. (N. S.) (3) Southampton Dock Company v. 396. Southampton Barhour and Pier Board, (2) Southampton Dock Company v. L. R. 11 Bq. 254. Southampton Harhour and Pier Board, (4) Bead v. Gervais, Walker, 431 L. E. 11 Eq. 254, 260; Fluker v. Taylor, (Amr.) 3 Drew. 183 ; South-Eastern Bailw. Go. 490 SET-OFF. Pabt I. whom the action is brought, although the subject-matter of the Seot. 8. account consists of dealings and transactions arising out of the con- tract, the breach of which is the subject of the action (1). Lord Chancellor Cottenham, upon discharging an order made in this case by Vice-Chancellor Sir L. Shad well for an injunction to stay execution in an action, said : " It was said the subjects of the suit in this Court, and of the action at law, arise out of the same con- tract ; but the one is for an account of transactions under the con- tract, and the other for damages for the breach of it. The object and subject-matters are, therefore, totally distinct, and the fact that the agreement was the origin of both does not form any bond of union for the purpose of supporting an injunction. The ques- tion then comes to this : Is the defendant, in a suit in this Court for an account, the balance of which I will suppose to be uncertain, to be restrained from taking out execution in an action for damages against the other party to the account until after the account shall have been taken, and it shall thereby have been ascertained that he does not owe to the defendant at Law, upon the balance of the account, a sum equal to the amount of the damages ? If so, it cannot be upon the ground of set-off, because there is not at pre- sent any balance against which the damages can be set off; nor can it be because the damages are involved in the account, for cer- tainly they can form no part of it. We speak familiarly of equit- Bquitable set- able set-off, as distinguished from the set-off at Law ; but it will be where there found that this equitable set-off exists in cases where the party '^'^oimds'fOT ^ seeking the benefit of it can shew some equitable ground for being protection protected against his adversary's demand. The mere existence of against adver- . . sar/sdemand cross-demands IS not sumcient : Whyte v. O'Brien (2) ; although it demaidrare' i^ difficult to find any other ground for the order in WHliams v. not enough. Davies (3) as reported. In the present case there are not even cross-demands, as it cannot be assumed that the balance of the account will be found to be in favour of the defendants at Law. Is there, then, any equity in preventing a party who has recovered damages at Law from receiving them, because he may be foimd to be indebted, upon the balance of an unsettled account, to the party against whom the damages have been recovered ? Suppose the (1) liawsoii V. Samuel, Cr. \- Ph. 161, 178. (2) 1 S. & S. 551. (3) 2 >Sim. 461. SET-OFT. 491 balance should be found to be due to the plaintiff at Law, what „ Pakt I. . . Ohaptbk III. compensation can be made to him for the mjury he must have Sect. 8. sustained by the delay ? The jury assess the damages as the com- pensation due at the time of their verdict. Their verdict may be no compensation for the additional injury which the delay in pay- ment may occasion. What equity have the plaintiffs in the suit for an account to be protected against the damages awarded against them ? If they have no such equity, there can be no good ground for the injunction. Several cases were cited in support of the injunction, but in every one of them, except Williams v. Davies (supra), it will be found that the equity of the bill impeached the title to the legal demand. In Beasley v. B'Arcy (1) the tenant was entitled to redeem his lease upon payment of the rent due ; and in ascertaining the amount of such rent, a sum was deducted which was due to the tenant from the landlord for damage done in cutting timber. Both were ascertained sums, and the equity against the landlord was that he ought not to recover possession of the farm for non-payment of rent whilst he owed to the tenant a sum for damage to that same farm. In O'Connor v. Spaight (2) the rent paid formed part of a complicated account, and it was impos- sible, without taking the account, to ascertain what sum the tenant was to pay to redeem his lease. In Ex parte Stephens (3) the term 'equitable set-off' is used; but the note having been given under a misrepresentation, and a concealment of the fact that the party to whom it was given was at the time largely indebted to the party who gave it, the note was ordered to be delivered up as paid. In Piggott V. Williams (4) the complaint against the solicitor for negli- gence went directly to impeach the demand he was attempting to enforce. In Lord Cawdor v. Lewis (5) the proposition is too largely stated in the marginal note, for in the case the action for mesne profits was brought against the plaintiff, who was held, as against the defendant, to be in equity entitled to the land. JSTone of these cases furnish any grounds for the injunction in the case before me. In Preston v. Struiton (6) the pendency of an unsettled partnership account upon which the balance was in dispute was held to be no XI) 2 Soh. & Lef. 403, n. (4) g Mad. 95. (2) 1 Soh. & Lef. 305. (5) i y. & 0. 427 (3) 11 Ves. 24. (6) i Anstr. 50. 492 SET-OFF. Pabt I. ground for an injunction to restrain execution upon a judgment Sect. 8. ' which had been obtained upon a note given for a balance upon a former settlement." But where certain consignments of oil were made from Colombo to certain persons in England, and during the voyage several of the casks leaked, and some of the oil escaped and was lost, but the greater part was collected, and sold in one mass by the captain in the course of the voyage, for £750 ; the Court held, first, that a bill in Equity was sustainable by the consignees against the shipowner for an account of the oil lost and the oil sold ; secondly, that in an action brought by the shipowner Equitable against an individual consignee for freight and average, the latter where there is could not Set off his share (as ascertained by the agreement) of the '^i¥^i°^?f'" moneys arising from the oil sold; consequently that he could which would maintain a bill in Equity to establish a right of equitable set- able in a off (1). But in WatthwortJi v. Pitcher (2) it was held that it was defence at _cg • j. p j.i i? t.j. • • ■ ■ i.- j_ a • Law. suincient lor the purpose ot obtammg an injunction to restrain proceedings at Law that the bill and affidavit stated that an un- settled account subsisted ; and that on such account the plaintiff at Law would be found indebted to the plaintiff in Equity, and though the bill shewed it might be set off at Law. 2. Where cross-demands exist between two parties, one of whom is proceeding by an action at Law, and the other by a suit in Equity The right in for an account and payment ; the Court of Equity, although it may oif mu^t be^'' ^^ of opinion that the facts of the case entitle the plaintiff in prayed. Equity to have one demand set off against the other, will not give that relief, unless it has been distinctly prayed by the bill (3). 3. Where B. (the plaintiff) was residuary legatee and surviving executrix of her husband, to whom C. and one 0. had given a joint bond, and C. died, and the plaintiff was indebted on her own No set-off private account to 0., who became bankrupt ; upon a bill against Tre^due L ^ ^^^ assignees for an injunction, and to set off what was due to her as "^'^t™* executrix against the debt due from herself to the bankrupt, Lord Chancellor Hardwicke refused an injunction, saying that it was admitted such a set-off could not be made at Law, and that he did not know of any like instance of its being allowed in Equity, and that the debts were due in different rights ; and that the 2 Geo. 2, (1) Jones V. Moore, 4 Y. & C, 351. (L') 2 Price, 40. (3) £riwson v. Samuel, Cr. &- Ph. 161. SET-OFF. 493 c. 22, s. 13 (enacting that the mutual debts there mentioned might Part i. be set off against one another) did not comprehend it (1). gj.^ 8. 4. Where H., who had an account with bankers, drew bills, which were accepted by his customers, and discounted by his bankers, and before the bills were at maturity the bankers, on the ground of H.'s liabilities on the bills, and of some of the acceptors having stopped payment, refused to honour H.'s cheques, and H. brought an action for the balance in his banker's hands, and. for damages for having dishonoured his cheques ; and before the trial several of the bills discounted by the plaintiffs for H. (the defen- dant) had been dishonoured in consequence of the suspension of payment of the parties to them, and the plaintiffs alleged that the amount of the bills dishonoured exceeded the amount of the defen- dant's balance ; the bankers filed a bill, and obtained an injunction to restrain all further proceedings in the action (2). The Vice-Chan- cellor (Sir J. Stuart) said : " I do not think I can refuse this motion. The plaintiffs in Equity state that an action has been brought against them by one of their customers for the recovery of a balance standing to his credit at their bank upon a banking account ; but that, notwithstanding such balance, there is on the part of the defendant a much larger liability to them, and they insist that they ought to be allowed to hold such balance until the defendant has discharged that liability. That is a fair question for this Court to determine. What the defendant in Equity says is, that he has a right to go on with his action, and have the question tried at Law. The plaintiffs, by their bill, impeach altogether the title to the legal demand of the defendant to the balance, and state the nature of his liabilities to them, which they allege have not been dis- charged. In that state of things the Court is, I think, bound to grant the injunction which has been asked. Rawson v. Samuel (3) has been much relied upon for the defendant, but it is contrary to the present case. There the legal right of the defendant in Equity was not impeached by the bill, and it was left to be settled at Law. Here the legal right of the defendant in Equity is impeached in (1) Bishop v. Church, 3 Atk. 691 ; (2) Agra and Masterman's Bank et V. 8 Geo. 2, c. 24, ss. 4, 5, and Chitty's {Limited) v. Hoffman, 11 Jur (N S ) Stat. 2nd Ed. vol. iii. p. 1025, n. 335 ; 34 L. J. (Ob.) 285 (3) Or. & Ph. 161. 494 SET-OFF. Pabt I. Equity, Lord Oottenham, in Bawson v. Samuel, said : ' In the Sect. 8. present case, there are not even cross-demands, as it cannot be assumed that the balance of the accounts will be found to be in favour of the defendants at Law.' Can I assume here that if the action were to be tried it would be held that a banker was not justified in retaining a customer's balance until a liability to him. If plaintiff on the part of the customer, was discharged ?" And further on, the defendant's Vice-Chancellor said : " This bill impeaches the title of the defen- Equityfthe ^^^^ ^^ Equity to recover the balance, and in that state of things Court will the Court is, I think, bound to restrain the action" (1). determine the ^ ' question of set-off, and restrain action at Law. Upon action 5. Where an award was pleaded by which it was found that the guarantor, plaintiffs should pay to H. a certain sum ; that the bills sued on of sei>off of^^* in the action were made by the plaintiffs, and accepted by H., for and claim against on account of the purchase-money of an estate, and that EL claimed principal . debtor to set oft the sum awarded against an equal part oi the purchase- a owe . money ; it was held, in an action against the defendant, surety for H., that the plea constituted a good equitable defence, so far as the sum to which it applied. Eor on the state of the pleadings it must be taken that at the time of the award the sum secured by the bills was all that remained due of the purchase-money ; and this being so, the Defendant might in Equity, without bringing H., the principal debtor, before the Court, claim the benefit of the amount of compensation awarded as a deduction from that sum (2). Judgment not 6. A party going into Equity to enjoin a judgment on the uniesTthe set- ground of set-off must shew as strong a claim to be paid the set-off off could be ^g jf jjg ^,gj.g suing on it at Law or in Equity (3). sued upon by ° x j \ / plaintiff at Law or in Equity. Defendant in 7. A defendant in an action at Law having a set-off available neglecting to either at Law or in Equity, but neglecting to plead it, cannot after- plead a set-off, ^^rds make it a ground of relief in Equity from the judgment relieved in against him in such' action, without shewing sufficient excuse for out shewing his neglect. That he was advised the Law Court had no jurisdiction exmTsefor over the set-off is no such excuse (4). And where, at Law, the neglect. (1) Agra and Masierman's Bank (N. S.) 461 ; 17 "W. E. 592. (Limited) v. Hoffman, 11 Jur. (N.S.) (3) IValker v. Ayres, 1 Clark, 449 335; 34 L. J. (Ch.) 285. (Amr.) (2) Murphy v. Glass, L. B. 2 P. C. (4) Pearce \. Winter, &c.. 32 Ala. 68 408 ; 6 Moo. P. C. (N. S.) 1 ; 20 L. T. (Amr.) BESTEAINT OF TRADE. 495 defendant was prevented by unavoidable accident from setting up Pabt I. an independent set-off liable to be enforced at Law, it was held seot. 8. that he coulS not enjoin the judgment and set up his set-off against it, but must pursue bis remedy at Law. And if his set-off is only recoverable in Equity, he cannot enjoin the judgment and avail himself of his claims against it (1). Sect. 9. Bestraint of Trade. 1. Where A., a trader, having become bankrupt, and his assig- Carrying on nees being about to sell his stock-in-trade, at the request of A. and strained (here) of A.'s son, C, sold the same to B., and B. and C. agreed to carry ^^^ *^'=^*y on business in partnership, and to employ A. in the management of the business, in consideration of A.'s executing a bond not to carry on the same kind of business within a prescribed limit (twenty miles from the place of business) ; and the agreement was duly carried out, the bond was given, and an undertaking to employ A. as manager, though not for any definite time, was signed by B. and C, and handed to him, and he was taken into em- ployment accordingly; the Master of the Eolls, Sir J. Eomilly, held, that there was a good consideration for the bond, and, notwithstanding the absence of complete mutuality. A, was re- strained from carrying on business contrary to the terms of the bond (2). And where A. had purchased from B. certain premises, fixtures, and the goodwill of a business, and as part of the con- sideration for the purchase of the goodwill, B. covenanted not to carry on business at a particular place, and A. covenanted to em- ploy B. ; and B., having been dismissed, set up business in breach of his covenant ; the Master of the Eolls, upon a bill for specific performance of the covenant, held, that although there was not sufficient evidence to shew that B. had been properly dismissed, yet that A. was entitled to an injunction to restrain B. from com- mitting a breach of his negative covenant, but the Court not being satisfied as to the bona fides of the dismissal, and the evidence of (1) Hudson V. EKne, 9 Gratt. 379 (2) Clarkson v. Edge, 33 Beav. 227 ; (Amr.) 10 Jiir. (NT. S.) 871 ; 33 L. .J. (Ch.) 443. 496 EESTEAINT OP TEADB. Part I. Chaptek III. Sect. 9. Acting as journeyman within a quarter of a mile re- strained (here). Managing clerk of - solicitor, re- strain ed'Jiere) practising within fifty miles. Articled clerk after admission, restrained (here) acting for any of his late master's clients. the alleged neglect of B., gave no costs of the suit (1). And where D. had sold his business, goodwill, fixtures, &c., to N., &nd had covenanted not to carry on, or be concerned or interested in, the business of a tailor within five miles of the former shop; and D. then engaged himself to his nephew (whose name was the same as his own), carrying on the same trade within a quarter of a mile of the former place of business, as a journeyman, at a weekly salary ; Vice-Chancellor Sir K. Malins held, that this was within the spirit and letter of the covenant, and granted an injunction (2). 2. Where the Court is of opinion that a bond is not intended to be satisfied by the payment of the sum named in the bond, it will interfere by injunction to restrain the breach ; and on breach of the condition of a bond which contained a recital that the defendant had agreed to become the managing clerk of the plaintiff, a soli- citor at W., and that it was thereupon agreed that the defendant should enter into a bond not to practise as a solicitor at or within fifty miles of W., and that if he did so, then, if he should pay to the plaintiff £1000 as liquidated damages, the bond should be void ; Vice-Chancellor Sir W. P. Wood held, that the solicitor was entitled to an injunction restraining the clerk from practising within the specified distance (3). And where A., on being articled to B., had covenanted not to be concerned for any of B,'s clients, and to forfeit £100 for any such breach ; and A., after being admitted, acted in contravention of this covenant, he was restrained by injunction from so doing (4). 3. Where the defendant, on becoming the servant of the plaintiff, a coachbuilder, executed a bond for the payment of £500 to the plaintiff if he should, on leaving the plaintiff 's service, be engaged in a similar business within a circle of forty miles in diameter, and five months after the defendant left the plaintiff's service ; and W., a coachbuilder within the prescribed distance, wrote to the plain- tiff for the defendant's character, and the plaintiff, in reply, only said, " The defendant will be of no use to you as foreman," and W. engaged the defendant ; and the plaintiff, after some delay. (1) Daggett v. Byman, 17 L. T, (N. S.) 486 ; 16 W. E. 302. (2) Newling v. Dohell, 19 L. T. (N. S.) 408 ; 38 L. J. (Oh.) 111. (3) Eoward v, Woodward, 10 Jur. (N. S.) 112 ; 34 L. J. (Ch.) 47. (4) XichoJls V. Strettmi, 7 Beav. 42 ; and see S. C. 10 Q. B. 346. RESTRAINT OF TRADE. 497 commenced an action aerainst the defendant on the bond, but sub- ^ Pabt I. ° . Chapter III. sequently abandoned it, and (the defendant having continued m Seot. 9. the service of W., to the knowledge of the plaintiff, for upwards of nine months) the plaintiff filed a bill for an injunction; the Master of the Rolls, Sir J. Eomilly, held, that the plaintiff was not entitled to relief The Master of the Eolls said it was im- possible to give the plaintiff the decree he asked, after writing such a letter. What he said in that letter was either true or not true. If it was true, and if he really thought that the defendant would be of no use as a foreman, why did he commence this suit? It was a mere wanton act, as he himself could not be injured. But if it was untrue, if he really thought it would be a loss to himself and a gain to W. if the defendant obtained the situation he was seeking, it was not a proper act by a master towards his servant. The plaintiff ought then to have told W. that the defendant, though a good workman, was bound not to enter into his service. The effect of this would have been to raise the defendant's cha- racter as a workman, though he would have been prevented from working within twenty miles of Biggleswade (the centre of the diameter) (1). And in granting an injunction the Court is bound to consider the amount of injury which may be thereby inflicted on strangers to the suit, and third parties. And as W. was not a party to the suit, the Court also, on that ground, dismissed the bill, but as the defendant had improperly disputed the question of distance, without costs (2). 4. Where the defendant had agreed to act as servant to the plaintiff and no other person for seven yea.rs, with power to either party to determine the agreement on payment of £500, and sub- sequently the defendant engaged himself to another master with- out paying the £500 ; upon a bill by the master, Vice-Chancellor Sir W. P. Wood, on motion, made an order for an injunction, saying that this was not an agreement for payment of a sum by way of liquidated damages on breach of a covenant, but for the determination of the agreement itself on the performance of two conditions, and that the payment of £500 was evidently intended to prevent, in some degree, what had actually happened, the (1) MaytJwm v. Palmer, 13 W. E. 37; 11 Jur. (N. S.) 230; 11 L T. (N. S.) 261. (2) lb. 2 K EESTEAINT OF TRADE. Pabt I. Chapter III. Sect. 9. Covenant not to carry on same business within 200 miles not un- reasonable, as in restraint of trade, if from character of the business such limit ia necessary to protect pur- chaser. services of the defendant being transferred to a rival house ; but the Lords Justices, on appeal, ordered that if the defendant would bring into Court £600, to be dealt with as the Court should direct, the injunction should be dissolved ; if not, the Court would take time to consider what could be done (1). 5. A covenant by a vendor of a business not to carry on the same business within 200 miles of a certain place, is not unreason- able, as in restraint of trade, if by reason of the character of the business such a limit of exclusion is necessary for the protection of the purchaser. And where, upon a sale by the defendant to the plaintiffs of a business of a horsehair manufacturer, the defendant agreed not to buy, sell, manufacture, or directly or indirectly inter- fere in the trade or business of a horsehair manufacturer, except for the benefit of the plaintiffs; and subsequently, in a deed of assignment (executed in pursuance of the previous contract), the defendant covenanted that he would not, directly or indirectly carry on the business of a horsehair manufacturer within 200 miles from B., without the consent in writing of the plaintiffs, except for their benefit and at their request ; and the defendant, besides being a manufacturer of horsehair, was, at the time of the sale, a general dealer in unmanufactured horsehair, and also pur- chased and sold manufactured horsehair, which was usual both with dealers and manufacturers; the Master of the Eolls, Sir J. Eomilly, held, upon evidence as to the mode of carrying on the business, that the limit of 200 miles was reasonable ; also that the defendant had sold so much of the business as belonged to that of a horsehair manufacturer, though forming part also of the busi- ness of a horsehair dealer, and that he must be restrained from the purchase and sale of manufactured horsehair (2). 6. Where A. undertook to manage the business of B., a chemist, and agreed that he (A.) would not carry on the business of a chemist either in his own name or for his own benefit, or in the name or names, or for the benefit, of any other person, within seven miles of the place, under a penalty of £500, to be secured by bond, which was duly executed, and he afterwards solicited orders for another chemist within the seven miles; the Lords (1) Thornton v. Kendall, 11 W, R. 352. (2) Harms v. Parsons, 32 Beav. 328 ; 9 Jur. (N. S.) 145 ; 32 L. J. (Ch.) 247. RESTRAINT OP TRADE. 499 Justices, upon an appeal from an order of Vice-Chancellor Sir J. Past I. Stnart, restraining the defendant from carrying on business within seot. 9. a certain limit, held, that it was exceedingly doubtful whether there was any contract binding the defendant not to do what he had done, and that at this stage no injunction could be granted, and discharged the Vice-Chancellor's order without prejudice to any question in the cause (1). 7. A covenant not to be engaged in a specific trade, " or in any a covenant matter or thing whatsoever in anywise relating thereto," within a g°taKed in a given district, does not prevent the covenantor from lending money trade, or in to a person engaged in such trade within the limits, upon mortgage &o. relating of his trade premises, although he may know that the mortgagor ^[^{^ given has no means of payingr the debt except out of the profits of the ^ ■> would be a 8. Where the defendant had agreed to act as assistant to the breach of the plaintiff in his business of surgeon and apothecary, and by deed had covenanted with him that he would not during the time the plaintiff should carry on his profession, at any time after he should cease to act as the plaintiff's assistant, and whether the deed should be in other respects determined or not, carry on or exercise the profession and business of a surgeon and apothecary ^ in the town of C, or within the compass of five miles therefrom ; and the deed contained a proviso that it should be lawful for the defendant, by giving one month's notice, to determine the deed and the covenants and agreements therein contained, subject never- theless and without prejudice to any rights of action which might have accrued, or which might accrue thereafter, to the plaintiff by virtue of the df ed, and for the true performance of the covenants thereinbefore contained, on the part of the defendant not to carry (1) Glark V. Watkins, 9 Jur. (N. S.) (2) Bird v. Lake, Bird v. Turner, 142 ; H W. R. 319. 1 H. & M. 338. (3) lb. (4) lb. 2 K 2 500 RESTRAINT OP TRADE. Part I. on the profession or business of a surgeon and apothecary at C. ; Sect. 9. ^^d the defendant by due notice determined the deed, " and the covenants and agreements therein contained," and then proceeded to practise as a surgeon and apothecary at C. ; Vice-ChaBcellor Sir J. Stuart granted an injunction to restrain him in the terms of the covenant (1). Upon a con- 9. Under a contract not to carry on business within a given dis- tract not to , J.- X *i J? "L T. i? • • A* carry on busi- tance, upon a motion to commit tor breach oi an injunction re- "r^ndU '^ " straining the carrying-on of the business within the distance, Vice- the distance is Chancellor Sir W. P. Wood held, that the distance is to be measured to be mea- sured in a as the crow flies, that is, in a straight line upon a horizontal plane, upoifa bori- ^^^ ^0* ^7 ^he nearest practicable mode of access or route (2). zontal plane. ^Q Prima fade, the sale by one partner of his share in a ffoing: The mere sale , , J i- , „ -, ■, , of the good- business to the other partners imports a sale of the vendor s imply a con- interest in the goodwill of that business (3). But it is per- traotnotto fectly settled that the mere sale of the goodwill neither implies set up again •' or in similar a contract on the part of the vendor not to set up again in a business, nor a . . . , . in restriction as Similar busmess, nor restricts him as to the place of carrying carrying oif ° ^n that business (4). And upon a sale, goodwill means every that business, positive advantage — as contrasted with the negative advantage of the vendor not carrying on the business himself — that has been acquired by the vendors' firm in carrying on its business^ whether connected with the premises or the name of the iiriD, or with any other matter carrying with it the benefit of the business ; but it does not follow that the purchaser has a right to The sale to Use the name of the vendors simjpliciter (5). But where A., B., and partne^rof ^- Carried on the business of stuff-merchants at X., under the firm share in busi- ^f ^_ & Co.; and A. Sold to B. and C. his share in the business ness and goodwill, dis- and the goodwill, and B. and C. (with A.'s consent) announced them- settiiig up selves to the world as B. & Co., late A. & Co. ; but some time after- !+'^l^r^«!f« wards A. resumed the business of a stuff-merchant at X., with ■with others, other persons, under the name of A. & Co., and under circum- and represent- ... , , . . ing his as the stances shewing it to be his intention to represent to the public that his was the old firm ; the Court granted an interim injunc- tion, restraining A. from carrying on the business of a stuff- (1) Giles V. Hart, 5 Jur. (N. S.J (Z) Cliurtonx.Donglas,^3i\v.{'S.'&.) 1381 ; 1 L. T. (N. S.) 15 1. S87 ; Joh. 174. (2) DuUjnau v. Walker, Joh. 44(i; (4) lb. ■19, L. .T. (Ch.) 867. (.5) lb. EESTEAINT OF TRADE. 501 merchant at or in the immediate neighbourhood of X., under the Part I. firm of A. & Co., or from otherwise holding himself out as the seot. 9. successor of the old firm (1). And in OrutweU v. Lye (2) it was But sale of a held that the sale of a trade with the goodwill does not, without trade with '^ _ . . goodwill doea an express covenant, prevent the vendor setting up again m a not prevent similar trade, or, without fraud, by representing it as a continuation ^p j^ gimiiar of the old trade, or by conduct encouraging others to involve ^^^^> ^y^°"* themselves, in the confidence that he would not trade again, &c. presenting it _ as a contmua- And upon a sale under a commission of bankruptcy oi the waggon tion of old trade from Bristol and Bath to London, with the goodwill ; another J^^ fraudu- concern, from Bristol and Bath to W. and S., being purchased in ^^'i*^^^J^5 trust for the bankrupt, and he having obtained his certificate, com- tion not to menced trade again to London by that road, soliciting customers by advertisement and cards, stating generally, that being rein- stated by his friends in the carrying business, his waggons set out at the usual hour, &c. ; Lord Chancellor Eldon refused an injunction. 11. Where the servant of a milkman in a street in London had Servant of agreed not to carry on the like business within three miles there- restrSned from for twenty-four calendar months after quitting; or beina; dis- carrying on •' _ J. o o iijje business charged the service, the Master of the Eolls, Sir J. Eomilly, held, within three that this was not an undue restraint of trade, and the servant was restrained by injunction from violating his agreement — the in- junction to be continued for two years from the date of a notice to quit given by the defendant to the plaintiff (3). In this case a And the con- milkman, carrying on business in three places, took the defendant ^"^f ^^ ^® into his service, and the defendant agreed, as regarded the milk- include , . . 1 , , ..,,•. assignees and man, ms assignees, and successors, not to carry on a similar trade suooeasors of within certain limits, and the milkman sold his branch business at ^^^ ^"smess. - one of the three places to the plaintiff, who retained the defendant in his service ; the Master of the Eolls held, that the plaintiff, as assignee and successor of part of the business, was entitled to the benefit of the defendant's contract ; and the Master of the Eolls said that it would be a virtual breach of the injunction if the defendant assisted any other milkman (4). 12. Although in Shackle v. Baker (5) Lord Chancellor Eldon (1) Ohurton v. Douglas, 5 Jur. (N.S.) (3) Benwell v. Inns, 24 Beav. 307 ; 887 ; Job. 174. 26 L. J. (Cb.) 663. (2) 17 Vcs. 335. (4) lb. (5) 14 Ves. 468. 502 BESTBAINT OF TBADE. Pabt I. said that the remedy for a breach of an undertaking given upon Sect. 9. the sale of the goodwill of a trade, not to carry on the same ~ business, and to use the best endeavour to assist the purchaser, &c., was an action or issue quantum damnificatus, and refused an in- junction against proceeding at Law under a judgment for the consideration, upon affidavits before answer, still the cases shew that the Court will grant such an injunction, 13. Where A., in consideration of B. engaging him as his assistant in the business of an apothecary, at a stated salary, agreed in writing with B. not to practise as an apothecary within seven miles of the town of M., under a penalty of £500 ; and A., having been discharged by B. from his service, proceeded to practise as an apothecary in the town of M. ; whereupon B. moved for an injunction to restrain A. from so practising, and the motion was ordered by the Court to stand over, with liberty for B. to bring an action ; and in the action B. recovered £500 damages and the costs against A., and entered up judgment for the same ; the Court of Common Pleas, being of opinion that the agreement was good at Law, and that the £500 was not to be taken as a penalty entitling the plaintiff to recover only the actual damage sustained by him, but as a fixed sum in the nature of liquidated damages which the defendant was to pay for the non-performance of his part of the contract ; and B. afterwards proved under a fiat in bankruptcy issued against A., for the amount of the costs, but not for the damages, Lord Chancellor Oottenham held, that an injunc* tion granted against A. on a renewed motion could not be main- tained ; the Lord Chancellor said that since the damages at Law had been obtained, the Court had to consider whether it would interfere to aid a contract which, in fact, no longer existed, that the party then applying could not shew that he had any legal right remaining, and the Court could not therefore interfere . and that if the Court did interfere it would be telling a party that though he had purchased the right to do the act he should not have the benefit of his purchase (1). But where a surgeon at W., upon taking an assistant, required him to give his bond in a penalty not to practise at W., and afterwards he discharged the (1) Sainter v. Ferguson, 1 H. & T. reversing S. C. 13 Jur. 833 ; and see 383; 1 Mao. & G. 286 ; 14 Jur, 255, S. C. at Law, 18 L. J. (N.IJ.)C. F.217. EESTBAINT OF TEADE. 603 assistant, who thereupon commenced practice at W., and the PabtI. .,.,,,.„ ~. J . • . 1 Chapteb III. surgeon filed a bill to restrain him (the bill oflered to waive the seot. 9. penalties of the bond), to which the defendant demurred ; the Master of the EoUs, Sir J. Eomilly, overruled the demurrer, holding that notwithstanding the pecuniary penalty the plaintiff was entitled to a remedy in Equity. The Master of the KoUs said where a per- thathe took the principle to be this -.—that where a person enters ^"30^?^^-"°' into an agreement not to do a particular act, and gives his bond to *'™jg^3^^*'jf^'' another to secure it, the latter has a right at Law and in Equity, and to another to ■, „ . ■ ■, /^ 1 • 1 ,1 1 j^i J. -J- 1 secure it, the can obtain relief m either Court, but not in both ; and that 11 he latter has a proceeds at Law on the bond, and recovers damages, and afterwards "nd in Equity, comes into Equity, and states that fact in his bill, a demurrer will andean ^ ■" _ obtain relief in lie, because he has chosen the jurisdiction and the remedy he will either, but not have, and that, accordingly, the practice had been to adopt the may select hia rule very strictly in Equity; and that it sometimes hap.i)enedthat-^'"'"™' this legal right was in doubt, and in such cases the Court used formerly to direct an action to try the right, and that this was now prevented by Rolfs Act, which compelled the Court to determine the legal right ; but that the practice under the old system was a good illustration, and that when the Court gave liberty to the plaintiff to try his right in an action, if he succeeded, and only took nominal damages, he obtained his equitable relief ; but if ha sought and obtained substantial damages, the Court, when he came back, dismissed his bill, saying, "You have already had your remedy at Law ;" but that the plaintiff had a right to say, " I will not have money, or take compensation in damages, but I will have the strict performance of that which is secured to me by the bond," which, in this case, was in the nature of a covenant by the defendant that he would not practise at W. ; and that the bill contained a paragraph waiving the penalties of the bond, but that, without that, if after an injunction had been granted against the defendant, the plaintiff should bring an action for damages, the defendant might come here and have the injunction dissolved; and that the de- fendant had for valuable consideration entered into an engagement not to practise at W., which he was bound to perform, and that if the facts alleged were true the plaintiff was entitled to relief in this Court (1). (I) Fox V. Scard, 33 Beav. 327. 504 EE8TEAINT OF TRADE. Part I. 14. In WMUalcer v. Howe (1) the Master of the Rolls, Lord Sect. 9. Langdale, granted an injunction to restrain a solicitor who had ggUgjtoj, sold his business for a valuable consideration, on the terms of not restrained practising in any part of Great Britain for twenty years, from so practising in '■ ° •' '^ . Great Britain doing, and from endeavouring to mduce any persons who were ye&vB.^'^ ^ clients of the former and present firm to cease to employ the latter as their attorneys or solicitors ; and an injunction was also granted to restrain the seller from detaining or destroying certain papers and documents belonging to the firm which he had got in his pos- session ; and Lord Langdale (after referring to the cases on the law as to wha;t was a reasonable restraint of trade) said that, having regard to the nature of the profession, to the limitation of time, and to the decision that 150 miles did not describe an unreason- able boundary, he must say, as Lord Kenyon said in Davis v. Mason (2), " I do not see that the limits are necessarily unreason- able, nor do I know how to draw the line." And where the defendant had been taken as an articled clerk without premium, and had covenanted not to be concerned for any of the plaintiff's clients during the term of five years' articles, nor at any time after the term, and to forfeit £100 for every breach ; and the defendant, after being admitted as attorney, acted in contravention of the covenant, the Master of the Rolls, Lord Langdale, held that this was a contract which the Court would enforce by injunction (3). The running 15. Where a coachmaker had sold his share of the business to his contrary to an partner, with an undertaking not to be concerned in any coach restrainSr^ running from R. to London, or prejudicial to the business which he had sold, the Court granted an injunction restraining him from running a coach from P. through R. to London (4). 16. Where £500 had been awarded to B., a retiring partner, for the goodwill, &c., on an understanding, not expressed in the award, ing, a retiring ^jj^^ }^q should not set Up the Same trade in the vicinity ; on partner being '■ •' ' awarded a sum for goodwill, &o., restrained setting up same trade in Tlcinity. A covenant not to be con- cerned for plaintiff's clients after admission as attorney. On parol evidence of understand- (1) 3 Beav. 383. But v. Ward v. Byrne, 5 M. & W. 548 ; NiclioUs v. Stretton, 10 Q. B. 346 ; and Mim/ord V. Oething, 7 C. B. (N. S.) 305. (2) 15 T. li. 118. (3) NichoUs V. Stretton, 7 Beav. 42 ; and see S. C. 10 Q. B. Rep. 346. (4) WUHains v. Williams, 2 Svv. 253 ; 1 Wils. 473. EESTEAINT OP TRADE. 505 parol evidence, the Court granted an injunction to enforce the Pakt I. award, and such understanding (1). Sect. 9. 17. Where articles under which A. had served his clerkship to an attorney contained a proviso that A. should not practise within a certain district ; and also a covenant on the part of his father that A. should, within a month after he came of age, execute a bond in a specified penalty to secure his fulfilment of the proviso ; and A., who was an infant at the time of the execution of the articles, served under them for three years after he attained his full age, but was never called on to execute any bond, and, with a knowledge of the purport of the articles, completed his clerk- ship, and afterwards began to practise as an attorney within the district from which the articles purported to exclude him ; Lord Chancellor Cottenham, affirming a decision of the Vice-Chancellor, refused a motion for an injunction to restrain him from practising within the district, with costs, being of opinion that the injunction could not not be granted (2). 18. A contract with the proprietors of a theatre not to write ^ contract dramatic pieces for any other is a leg9,l contract, as a similar ^*^ P™" pnetors of a restraint of a performer would be, and does not resemble a covenant theatre not to restraining trade generally (3) ; and a covenant restraining trade Jeoes fiwany" within particular limits, or partners from carrying on the same a^^so'^a^^^*'' trade for their private benefits, is legal (4). similar re- 1 rv TiTi 11 • 1 „ ■. . straint of a ly. Where, on a sale by a wme-merchant of his stock-in-trade performer is and business, he had covenanted that he would not set up or carry covenanf on at C, or in any other place within the counties of C, A or M '■^straiuing . . . ' » partners oarry- the business of a wine and spirit merchant, and the vendor gave ^°s °^ ^^^^ up his place of business at C., and had no place of business within private benefit the prescribed district, but he solicited and obtained orders within '^ ^^^^^' it ; it was held by Lord Cranworth, confirming the decision of Vice- Chancellor Sir E. T. Kindersley, that the question whether this was a breach of the covenant was too doubtful to entitle the plain- tiff to an injunction without bringing an action ; but it was held (1) Harrison v. Gardner, 2 Madd. and as to the validity of contracts re- 198- straining trade, v. Chesman v. Nainly, (2) Gapes v. Button, 2 Euss. 357. 1 Bro. P. 0. 234 ; 2 Str. 739 ; 2 Ld. (3) Mmrh v. Golman, 18 Ves. 437 ; Eaym. 1456. (4) lb. 506 BE8TEAINT OF TEADE. Pabt I. by the Lord Justice Knight Bruce, and the Court of Queen's Bench, Sbot. 9. tlifl't it was a breach of the covenant (1). There is no ^^- There is no irrebuttable presumption against the legality of irrebuttable a coTenant in general restraint of trade ; and though all restraint presumption f ^ • ± ' against the which is Unreasonable for the protection of the parties to a contract colenint°iir is bad, yet public policy enables a contracting party to enter into Sint of^' ^^^ stipulation, however restrictive, if such stipulation is not unrea- trade. sonable, having regard to the subject-matter of the contract. And allows*, upon^ 0^1 ^^ agreement for the purchase of the patents and processes for the the sale of manufacture of an article called "Crockett's American Leather anything obtained by Cloth," which contained a covenant not to carry on in any part of the skill of the _ „ ,.„.,., vendor, any iiurope any company or manufactory havmg lor its object the manu- however"^' facture or sale of productions then manufactured in the business of restrictive, if ^]^q vendors, nor to communicate to any person the process of such not unreason- ... able, having manufacture so as to interfere with the exclusive enjoyment by the subject-matter purchasing company of the benefits to be purchased ; it was held trart^ """^ that this restriction was not greater, having regard to the subject- A covenant matter of the contract, than was necessary for the protection of onamanu- the purchasers, and was capable of being enforced against the part°of '° ^°^ vendors. The Vice-Chancellor, Sir W. M. James, said : " AH the Europe en- cases, when they come to be examined, seem to establish this prin- forced (here). . ciple, that all restraints upon trade are bad, as being in violation of public policy, unless they are natural, and not unreasonable for the protection of the parties in dealing legally with some subject- matter of contract. The principle is this : — Public policy requires that every man shall be at liberty to work for himself, and shall not be at liberty to deprive himself or the State of his labour, skill, or talent, by any contract that he enters into. On the other hand, public policy requires that when a man has by skill, or by any other means, obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market ; and in order to enable him to sell it advantageously in the market, it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such a case, the same public policy that enables him to do that does not restrain him from alienating that which he wants to alienate, and there- fore enables him to enter into any stipulation, however restrictive (1) 2\inier v, Evans, 2 Dc G. M. i: G. 740. EESTEAINT OP TRADE. 507 it is, provided that restriction, in the judgment of the Court, ^^^\„ ^ 111- n T. Chapteb III. is not unreasonable, having regard to the subject-matter or the sect. 9. contract " (1). 21. Where a person, upon the sale of his business, agreed that he would not, during a term of five years, exercise or carry on the trade, either in his own name or that of any other person or persons, in the town of N., and he was afterwards found acting as the manager atN. of another person engaged in the same trade ; on an interlocutory motion for an injunction to restrain him from so acting, the Court refused to make any order. The Lord Chancellor, Lord Hatherley, upon an appeal from a decision of Vice-Chancellor Sir W. M. James, said, he confessed he thought the case too doubtful to deal with on an interlocutory application ; that the point was exceedingly nice, and exceedingly close upon the limit ; and that, although one could not help expressing some degree of feeling as to the evasion that had been practised, having regard to the spirit of the contract, it was a little too much to say, upon this interlocutory application, that this gentleman was not to carry on business sim/plioiier, either in his own name or in that of another man, and should not act as the manager of another, he not con- ducting it in his own name — as in the case of Dales v. Weaber (2) — but in the name of the other person who employed him (3). Upon the hearing of the cause the Master of the Eolls, Lord Romilly, held that the managing the business of another person in the same trade in the town of N. by the vendor, at a weekly salary, was not a breach of the agreement. The Master of the Eolls said a man cannot properly be said to exercise or carry on a trade unless he receives some portion of the profits, and dismissed the bill ; but as the defendant was obviously seeking to resume his old business, he dismissed it without costs ; however, as in effect it was a rehearing of the motion for an injunction, since which no further evidence had been entered into by either party, he gave the defendant his costs incurred subsequently to the motion (4). 22. An agreement by a man not " directly or indirectly, either (1) Leather Ghth Company v. Lorsont, (S) Allen v. Taylor, 18 W E 888 • L. R. 9 Eq. 345, 353 ; 18 W. R. 572 ; 19 W. E. 35. • • ' 39 L. J. (Ch.) 86 ; 21 L. T. (N. S.) 661. (4) Allen v. Taylor, 19 W. R. 556 ; (2) 18 W. R. 993 ; V. post, pi. 22. 39 L. J. (Oh.) 627 ; 22 L. T. (N. S.) 65l! 508 RESTRAINT OF TRADE. Part I. alone or in partnership with, or with the assistance of, any other Seo™9. ' person, to set up or follow or practise " a particular business, is broken by his carrying it on as manager or assistant to another person (1). 23. Where the plaintiff, a brewer, sold a piece of land to the trustees of a freehold land society, who covenanted with him that he, his heirs and assigns, should have the exclusive right of sup- plying all ale, beer, and porter which might be consumed in any inn, public -house, or beershop which might be erected on the land, but the plaintiff did not enter into any covenant to supply it ; and the defendant, a member of the society, who was also a brewer, acquired a portion of the land with notice of the covenant, and erected on it a public-house, which he supplied with his own beer ; and the plaintiff filed a bill to restrain the defendant from supplying beer, alleging that the plaintiff had always been ready to furnish a sufficient supply of good beer at a fair price ; Lords Justices Selwyn and Giffard held — affirming a decision of Yice- Chancellor Sir J. Stuart on overruling a demurrer — that the cove- nant was not void either for uncertainty or want of mutuality, or as being an unreasonable restraint of trade, or because it purported to be perpetual ; and that, though it was in terms positive, it was in substance negative, and that the Court could interfere by injunction to restrain the defendant from acting in contravention of it (2). Publication of ^- ^^ * ^^^^ °^ Bobinsoti V. PMlUps (3) an injunction was a newspaper in gpanted, at the suit of the assignee of the defendant's bond, contract, re- against publishing a newspaper in violation of a contract that the defendant would not thus publish within a certain town. That the tone of the paper was changed, was held no defence, nor that the contract was in restraint of trade. Contracts re- 25. In M'Glwg's, <&c. (4), a case in Pennsylvania, U. S., Mr. Jus- c^Tofto^^*' *'^°® Sharswood said : " That contracts restraining the exercise of a in particular trade or profession in particular localities, are valid when there is a localities are ■> k i • • ., valid when fair and reasonable ground for the restriction, as in the case of the sale there is a rea- ^ound for the (1) ^"■^^^ ^- ^^' n . . , /,\ t rr _i &c., unless guilty of culpable conduct, or is insolvent (1). In Martz v. pabTo oondJct, Schrader (2) Lord Chancellor Eldon granted an ex pa/rte injunction or msolvency. ^^ restrain a surviving partner from disposing of the joint stock, Surviving » ■, . , ... • i 'ii i. ii partner, on but refused it as to appomtmg a receiver, on a bill by the being°iii em- administrator of the deceased partner, the affidavit stating that the barrassed oir- defendant was in embarrassed circumstances, and in Newgate for a cumstances, _ _ _ _'-' . and spending separate debt, and spending the joint moneys on himself and joint moneys, restrained dis- lamily. P^^'^s of joint j5_ ^jjgj.g ^ partner had excluded his co-partner, the Court granted an injunction to restrain him from obstructing or inter- fering with his co-partner in the exercise and enjoyment of his rights under the partnership articles (3). And in Greatrex v. Greatrex (4) the Court granted an injunction to restrain the defen- dant, who had removed the partnership books from the place of business, from keeping them at any other place. 16. In England v. Curling (5) the Master of the Rolls, Lord Langdale, granted an injunction to restrain a partner, during the partnership term, from carrying on business with other persons in the name of the old firm, and from publishing notices of dissolution. 17. Where the master and part-owner of a ship purchased goods during the voyage, which his answer stated were purchased out of private property, and the profits of private trade during the voy- age, but the Master of the Eolls, Lord Langdale, considered that there were strong grounds for thinking that the goods were pur- chased with partnership property, or with money for which the defendant was accountable to the partnership, and that they be- longed to the partnership, he restrained the shipmaster from receiving the goods. Lord Langdale said he apprehended that there could be no doubt that the master of a ship was bound to employ his whole time and attention in the service of his em- ployers, and that a partner in trade had no right to employ the (1) Lawson v. Morgan, 1 Price, 303. (3) Hall v. Hall, 12 Beav. 414. (2) 18 Ves. 317. (4) 1 De G. & Sm. 692. (5) 8 Beav. 129. PAETNEESHIP. 525 partnership property in a private speculation for his own benefit ; Part I. and, as to the custom of trade alleged by the defendant, which seot. ii. made it lawful for him to carry on such private trade as he did here, Lord Langdale said he could not, even if it were uncontra- dicted (which it was not), pay much attention to it on the present occasion. The master of a ship was an agent bound to give all his time and attention to his principal, and he thought that it would be very difiScult to support a custom which, if legal, as alleged, would entitle him to trade for himself separately, when it was his duty to trade to the best of his ability for the joint interest of himself and the other owners, and would . give him a discretionary power to place his own interest in competition with the joint interest, an option. to give the advantage to himself whenever he pleased, with- out the knowledge of his co-owners, and without giving them notice of his proceedings in that respect ; a custom, also, which would make it valid for a person in the relation of co-owner or partner, having complete control over the ship which was partnership pro- perty, to employ it at the joint risk for his private benefit ; and that he could not, on the present occasion, assume that there was any such custom (1). 18. Where an agreement had been entered into between A. and The Court B. (who were partners without any written articles) and persons in ^e ^terethe their employ, containing terms and provisions of a harsh descrip- provisions of a tion, and where one of the partners had filed a bill against the agreement are other for a dissolution of the partnership, the Court refused to ^^^ ' interfere at the suit of the other partner to restrain the breach of the negative terms of the agreement (2). 19. In Anderson v. Wallaee (3) the Court granted an injunction Partner -will against a co-partner interfering in the management of the business t^lerfSiTn- (which was under a contract with the Postmaster-General for the terferenoe „ ,, -IN 1 ,1 ™. „ „„ would produce service ot the mail), where the efiect of suffering him to interfere irreparable would be irreparable injury to the partnership business, by causing ™^°^'*^- the contract to be put an end to. And in Bead v. Bowers (4), a partner upon a bill by one partner against another, alleging great abuses, graSsi, the Court granted an injunction to restrain the defendant getting ""'"^ ^'^ ^^- ° ° strained get- (1) Gardner v. M'Outcheon, 4 Beav. (2) Oroft v. Eaw, 5 L. J. (N S) *'"^ ^" ^^^*^' 534. Ch. 305. (3) 2 Moll. 540. (4) 4 Bro. C. C. 441. 526 PAETNEESHIP. Part I. Ohapteb III, Sect. 11. Upon the death of one partner the name of the firm becomes tlie separate right of the survivor. in debts due to the firm, the defendant being in contempt, and served personally, and not appearing. But the Court will not, on the application of one partner, restrain another from using the partnership property or name, unless a case of misrepresentation or abuse is made out against him (1). But where a defendant denied charges in a bill of fraud and misconduct in the partner- ship, and explained others away, and alleged his inability to put in a full answer by reason that the plaintiff withheld improperly the partnership books, the Court would not grant the injunction prayed by the bill, but refused it without prejudice (2). 20. In Smith v. Fromont (3), where two persons had agreed to work a coach from Bristol to London, and one provided horses for a part of the road, and the other for the remainder, and, in conse- quence of the horses of one having been taken in execution, the other provided horses for that part which had been undertaken by the first, and claimed the whole profits of the journey ; Lord Chan- cellor Eldon refused an injunction at the suit of the one whose horses had been taken in execution, against the other, the defen- dant continuing to provide horses. The Lord Chancellor said, that if he enjoined the defendant from bringing horses to convey the coaches between the limits in question, he must enjoin the plaintiff from not bringing horses there, and that he could not restrain the defendant unless he had the means of assuring him that he should find the plaintiff's horses ready. 21. Where A. and B. carried on the business of pencil-makers under the firm of A. & L., and A. died, and B. carried on the busi- ness under the firm of B. & Co., successors to A. & L., and A.'s executor having commenced the same business under the firm of A. & L., the Court, at the suit of B., the surviving partner, granted an injunction to restrain A.'s executor from using that name or firm in carrying on his business. The Vice-Chancellor, Sir L. Shadwell, said he could not but think, and it was his opinion, when two partners carry on a business in partnership together under a given name, that during the partnership it was the joint right of them both to carry on the business under that name, and (1) Hawkins v. Blachford, 1 L. J. (2) Litthwood v. Caldwell, 11 Price, (Ch.) 142. 97. (3) 2 Sw. 330 ; 1 Wils. 472. PAETNEESHIP. 527 that upon the death of one of them the right which they before Paet I. Ohapter m had jointly becomes the separate right of the survivor ; but sbot. ii. said, that if the parties wished to have the question decided in a Court of Law, he would direct an action to be brought (1). And in Webster v. Webster (2) the Court, upon the suit of one executor of a deceased partner, refused an injunction to restrain two other executors of the deceased partner from using the name of the deceased partner in the trade carried on by them in partnership. 22. Where- a deceased partner had contracted in his own name for a lease of premises to be employed in the partnership trade, the Court, at the suit of the surviving partner, refused to restrain the landlord from granting a lease to his representatives; but restrained, until further order, the representatives from disposing of the lease when granted, except for the benefit of the partner- ship, and for partnership purposes, and with the assent of the surviving partner (3). 23. In Newell v. Townsend (4) Vice-Chancellor Sir L. Shadwell, at the suit of a surviving partner, granted an injunction to restrain the sheriif from removing from the partnership premises, selling, or intermeddling with the partnership eifects, where the goods of the partnership had been taken in execution for a debt due from the other partner, who died before the writ was delivered to the sheriff. The Vice-Chancellor said that a writ of execution bound the property in a debtor's goods only from the delivery of the writ to the sheriff (5), who was required to indorse on the back of the writ the day on which he received it ; that in this case the pro- perty in the goods had vested at law in the plaintiff, the surviving partner, before the writ was delivered to the sheriff, 24. In JacJeson v. Sedgwick (6) Lord Chancellor Eldon said, that partnership accounts might be taken in various ways ; that the distinction was, that, in the absence of a special agreement, .the accounts must be taken in the usual way ; but that where a special agreement had been made it must be abided by, provided that the parties had acted on it; if not, that he always understood that the (1) Lewis V. Langdon, 7 Sim. 421. (4) 6 Sim. 419 (2) 3 Sw. 490. (5) y,y, 29 Car 2, c. 3, s 16 (3) Alder v. Fouracre, 3 Sw. 489. (6) 1 Sw. 469, 470 ; 1 Wils 297 528 PABTNEESHIP. Part I. articles were read in this Court as not containing the clauses on "se™"!!. ' which the parties hare not acted. And in this case it was held, that stipulations in articles of partnership for an annual settle- ment of accounts, and for payment to the representatives of a deceased partner of an allowance in lieu of profits since the last annual account, proportioned to the amount of his share of profits during two years preceding, were waived in Equity by an omission through several years to settle annual accounts, and by engaging in business to which the stipulation could not be applied without injustice; and an injunction was granted to restrain the repre- sentatives of a deceased partner from proceeding in an action on a bond given by the surviving partners for repayment of his share according to the articles, before the settlement of accounts of trans- actions pending at his decease, on which a loss was subsequently sustained. The Court 25. Upon a bill by some (six) partners in a joint concern, on f^re untiUhe" behalf of themselves and the others (except the defendants), 300 t'^'^d'tr ^"^^^ ^^ number, for an account, a dissolution, and a receiver, &c., alleging means of re- circumstances of gross mismanagement and neglect by the mana- by the articles, gers. Lord Chancellor Eldon refused to interfere by an injunction, a posftive^"^^ '^ ^^^ *^® appointment of a receiver in the first instance, until they necessity. ^^^(j tried the means of redress provided by the articles. Lord Eldon said, that if, however, a case of delinquency should be clearly made out, he did not hesitate to declare the Court would act ; but that there must be a positive necessity for the interference of the Court, arising from the refusal or neglect of the committee (six of whom, out of twelve, were defendants) to act ; that that might raise a case for prompt and immediate interference, which he could not say existed then ; and that the plaintiffs had a remedy^ in their own hands, to which they had not resorted ; but desiring to be understood not to repudiate the jurisdiction, but that he would not interfere before the parties had tried that jurisdiction which the articles had themselves provided (1). And in Waters v. Taylor (2) it was held, that although an agreement to refer dis- putes to arbitration is generally no objection to a suit in a Court of Equity ; yet, upon the nature of the subject (the management of the Opera House), and the anxious provision of the parties for (1) Oarlen v. Drury, 1 Ves. & B. 154. (2) 15 Ves. 10. PAETNEESHIP 529 arbitration, the Court refused, upon motion, to interfere before they Part I. C^FTAPTE'R III had taken that course. The Lord Chancellor, Lord Eldon, said hect. ii. that his argument was, that the forum they had provided for themselyes, and the guard introduced by them against the forum of the country (whether effectually, he did not say), shewed their intention against the interference of any other jurisdiction until they had tried the effect of the special means provided by them- selves ; and that the object of this interlocutory motion was, there- fore, in the nature of judicial relief against the effect of the express contract ; and the Court ought, therefore, to be perfectly sure that the conduct of the defendant had been such as to make it proper, from regard to the interests of others as well as himself, that he should be removed from that situation in which the contract placed him. 26. The Court will entertain a bill to compel partners to act The Court according to the provisions of instruments which they have exe- parsers to cuted, and, where it will interfere for that purpose, will take care act according '^ '^ to the provi- that the decree shall not be defeated by anything done in the sions of the meantime. Thus where, in 1812, the then proprietors of Covent they h'ave ^ Garden Theatre executed a deed by which they covenanted that ^^^°"*®'l' the profits of the theatre should be exclusively appropriated to particular purposes, and that the treasurer for the time being should be irrevocably directed so to apply the profits ; and, in 1822, parties then entitled, under the former proprietors, to seven- eighths of the theatre entered into an agreement which provided in some respects for a different application of the profits, and other- wise affected the rights of a party interested in the remaining eighth, who was not consulted on the subject ; Lord Chancellor Eldon, upon a bill filed by that party for the specific performance of the covenants and agreements contained in the deed of 1812, and an injunction to restrain the defendants from applying the rents and profits of the theatre to any other purposes than such as were agreed upon in the indenture, and to restrain them from con- ducting or managing the concerns of the theatre contrary to those provisions, and from excluding the right of interference on the part of the plaintiff as reserved by the terms of the deed, and for a receiver or treasurer of the theatre— appointed a receiver (1). (1) Const V. EaiTis, T. & R. 496, 529. 2 M 530 PARTNEESHIP. Part I. Chapter III. Sect. 11. A party taking the share of a partner cannot be let loose from that partner's obligations to the ooneem. Upon non- performance of an agree- ment for a partnership, the Court will relieve from the payment of the agreed premium. 27. A party taking the share of a partner in a concern cannot be let loose from the obligations that partner is under to the concern (1) ; and Lord Eldon, in this case, asked whether a party (one of several co-proprietors of a theatre) having made a lease of his interest without the consent of his partners, might not apply for an injunction to restrain his lessees from doing any act pre- judicial to that partner. 28. In Lloyd v. Loaring (2) Lord Chancellor Eldon allowed a demurrer to a bill by some members of a lodge of Freemasons against others, to have the dresses, decorations, books, papers, and other effects of the society, delivered up ; and for an injunction, on the ground that they affected to sue as a corporate body ; but leave was given to amend, Lord Eldon holding that this Court had jurisdiction for the delivery up of chattels, and where there is a joint interest permits some to sue as individuals representing the rest in other instances than those of creditors and legatees. 29. Upon a bill by a partner under a parol agreement, charging misconduct in the other partner, and praying a dissolution, ac- count, and injunction from executing securities in the name of the firm, a demurrer to the prayer for a dissolution, because there was no writing between them, and that the prayer that the Court might do what they had a right to do for themselves was idle and nugatory, was overruled. The Lord Chancellor said there was no colour for the demurrer, and asked how the plaintiff was to have the account taken ; and how he was to restrain the de- fendant from using the partnership name, and receiving the partnership debts ? (3) 30. Where M. agreed with P. to pay him £1250, part in money (£600), and part in bills (£650), as the consideration for a part- nership as a medical practitioner for twenty-one years, P. to intro- duce M. to his patients, and to be allowed to be absent for three months, but to take an active part in the business for three years ; and P. was afflicted at the time with Bright's disease, and was absent for six months, and died of apoplexy ; and P.'s represen- tative sued M. upon the bills, and he filed a bill for an injunction (1) Const V. Harris, T. & R. 496, 521, 528. (2) 6 Ves. 773. (3) Master v. Kirton, 3 Ves. 74; but see, as to this point, pi. 13, ante, p. 521. PAETNEESHIP. 531 to restrain actions upon two bills, part of the consideration, for an Part i. account, and return of part of the consideration or premium, sj,ot. 11. alleging non-introduction to patients, protracted absence of P., and ignorance that he suffered from Bright's disease ; Vice-Chan- cellor Sir E. T. Kindersley held, on the evidence, that M. was ignorant as alleged, that the party who fixed the consideration at £1250 was also ignorant of the fact, and that there was a very limited introduction to patients ; and decreed an account, M. to be debited with the £600, but credited with so much as ought to be repaid to him, with an inquiry to ascertain the amount, but no costs were given on either side (1). The Vice-Chancellor said that the plaintiff did not get the introduction he bargained for, and the business naturally fell off; and that, under these circumstances, according to the law of this Court, a party might come, where accounts were to be taken between him and another person, and ask for relief with respect to the non-performance of the agreement between them. 31. Where a partnership was carried on for fourteen years be- The name or tween B. and G., under the style of "Banks & Co.," and on the g^/dist""' dissolution the assets were divided, but no arrangement was come ^"*'°^ °^ *^^ partnership to as to the style ; the Master of the EoUs held, that the name or and a mere style of " Banks & Co." formed an undivided asset of the partner- other a^aets, ^ ship, which belonged to the partners in common after the dissolu- j'elongs to the tion, and that B. was not entitled to prevent G. using the style of ^^ common. " B, & Co." in his business. The Master of the Eolls (Sir J. Eomilly) said that the name or style of the firm of " Banks & Co.," in which the defendants had been engaged for, a period of fourteen years, was an asset oi the partnership, and that if the whole concern and the goodwill of a business had been sold, the name, as a trade-mark, would have been sold with it ; and that if, by arrangement, one partner takes the whole concern, there must be a valuation of the whole, including the name or style of the firm ; but that if the partners merely divide the other partnership assets, then each is at liberty to use the name just as they did before, but that in this case the partners had divided the rest of the partnership property, and had left the name or style to be enjoyed in common (2). (1) Mackenna v. ParJces, 15 W. R. 217. (2) Banks v. Oibsm, 34 Beay. 556. 2 M 2 532 PARTNERSHIP. Pabt I. 32. Where a person has, in articles of partnership, covenanted ^*ECT™1™ Jiot t° ^'^■' ^^ respect of private debts of the defendant, the other execution partner, and that the plaintiff thereupon had sriven notice of a upon paitner- . i i i> i ship assets for dissolution to the deiendant ; and prayed (iider alia) the usual of^onr^tlfe^' partnership accounts, that the stock, &c., might be sold, and tlie be re'sTrlin^ produce applied in payment of the debts of the partnership, &c., and the plaintiff's share of the surplus paid to him, and that the execution execution !.«.•, creditor is creditors and the sheriff might be restrained proceeding in the to be paid his executions, and selling the stock, &c., and paying over the pro- debt out of Ihart^^'"'^^ (1) Goates v. Coates, 6 Madd. 287. (3) Chappell v. Cox, 18 Ind. 513 (2) Marshall v. Wation, 25 Beav. (Amr.) 501. (4) Bevan v. Lewis, 1 Sim. 37G. BANKEUPTCY— INSOLVENCY. 533 ceeds of tlie part already sold to the execution creditors. The Part I. Chaptee III, Vioe-Chancellor said that the judgments that had been entered seot. il. up upon the securities for the sums in question must take their character from the securities on which they had been so entered up ; and as those securities were executed by one only of the partners, they constituted the creditors joint proprietors only with the other partners, and that the accounts of the partnership estate and debts must therefore be taken in the manner prayed by the bill ; and that the defendants would be entitled to be paid their debts out of the debtor's (the defendant partner's) share of any surplus that remained after all the demands on the partnership were satisfied (1). Sect. 12. Bcmhruiptcy — Insolvenay. 1. Where a bankruptcy had been superseded, and the assignees commenced proceedings to annul the order on the ground of fraud, and filed a bill to restrain the bankrupt from getting the property into his hands, but the proceedings to restore the bankruptcy had been unsuccessful ; the Court held, upon a motion by the assignees to dismiss their bill, that they were entitled (here) to have it dismissed without costs, as the Court can look at the circumstances of the case, and fraud had been practised on the part of the defen- dant (2), In this case the bankrupt was refused his certificate, on the ground of fraudulent concealment of property, and subsequently a consent- order for annulling the bankruptcy was obtained, in consideration of a friend of the bankrupt paying a sum to the creditors; and after this, the assignees discovered that other property to a large extent had been concealed by the bankrupt, and they presented a petition to discharge the annulling order, as having been obtained by fraud, and before this petition had been heard, filed a bill to restrain the bankrupt from getting in the concealed property. The petition was ultimately dismissed by the Lord Chancellor, on the ground that the assignees having,' when they consented to the annulling order, been aware of previous (1) And V. Lindley on Partnership, 147 j 10 Jur. (N S ) 459 • 10 L T 584-8, 590. (N. S.) 492 ; 12 W E. 586.' ' " (2) Elsey v. Adams, 2 De G. J. & S. 534 BANKEUPTCY— INSOLVENCY. Pabt I. fraudulent conceal meut, could not be held to hare consented to ■^ SE™"ii'^^' tte order on the faith of the bankrupt having made a full disclosure of his property, but that the proceedings in the cause ought to be stayed without costs. 2. An order by the Court of Bankruptcy for the sale of goods, as in the reputed ownership of a bankrupt, was, under the then Bankruptcy Act (12 & 13 Vict. c. 106) ex jparte; and, semble, it could not be appealed against by the true owner ; but the Court of Chancery had jurisdiction (notwithstanding such an order) to restrain a sale and determine the rights of the parties, and an application by the true owner to the Court of Bankruptcy for a stay of proceedings was not a bar to a subsequent bill for such an injunction (1). 3. Under the old law^of Insolvency the Court of Chancery had no jurisdiction to restrain an assignee in insolvency from selling the property of the insolvent : so held in a case where an insolvent debtor had compounded with all his creditors except two, and had obtained his discharge, and the assignee imder the insolvency, who was one of the unsatisfied creditors,' after refusing a tender of the full amount of his debt, had proceeded to advertise for sale the property of the insolvent vested in him as assignee; and the insolvent filed a bill against the two creditors, praying an account, or directions for ascertaining what was due, and for an injunction to restrain the sale ; but Vice-Chancellor Sir R. T. Kindersley held, upon demurrer, that this Court had no jurisdiction (2). 4. The messenger of the Court of Bankruptcy was, under s. 213 of the Bankruptcy Act, 1849, the ofiScer of the official assignee, who was responsible for his conduct, both being under the control of the Com- missioner in Bankruptcy ; and an order having been made, vesting the ebtate and effects of a banki-upt in the official assignee, the official assignee could not be heard to say that he had no authority over the messenger. And where 0. was assignee by a deed of 1851, by way of mortgage, of stock-in-trade of B., with a power of sale on default of payment, which having occurred, he took possession in (1) Mather v. Lay, 2 J. & H. 374. luptcy Act, 1869," 32 & 33 Vict. c. 71, See, as to the powers and jurisdiction of ss. 13, 65, 71, 72 the Court of Bankruptcy under the (2) Pike v. Martin, 7 Jur. (N. S.) present Bankruptcy Act, " The Bank- 251 ; 30 L. J. 294. BANKEUPTCT— INSOLVENCY. 535 June, 1858 ; and on the 9th of July following B. petitioned the Part i. IJtt A ^rpciTJ XT I Court of Bankruptcy under the arrangement clauses of the then gj,oT. 12. Bankruptcy Act, and a protecting order had been made, and an official assignee appointed ; and on the 21st of August an order was made vesting the debts due to the bankrupt in the official assignee, and that all his stock and effects should be taken possession of by the messenger in bankruptcy ; and on the same day the messenger took possession, and on the 28th of the same month 0. recoTered possession, and in December advertised the property for Sale, but the messenger refused to allow the auctioner to make a catalogue ; and the bankrupt and others shortly afterwards put O.'s agent forcibly out of possession ; and on a motion on behalf of O, for an injunction to restrain the official assignee from selling, disposing of, or removing the goods, oj interfering therewith, the official assignee argued that under the order which had been made he had nothing whatever to do with the property ; and the mes- senger was not made a party to the suit: Vice-Ghancellor Sir J. Stuart granted an injunction restraining the official assignee from selling, or disposing of, or removing the goods, or disturbing O.'s possession, till the hearing of the cause or further order, and also decided that the messenger had properly not been made a party (1). 5. The 17 & 18 Vict. c. 36 (the Eegistration of Bills of Sale Act) The 17 & 18 in no degree affects the doctrine of reputed ownership; and therefore, has*not ^^ where A., a trader, on the 19th of April, 1856, executed to B. a bill affected the of sale of furniture on the premises where he (A.) carried on business, reputed the consideration being stated as for goods sold, money lent, and °'"°®''^'P- money for which B. had become responsible for A., and at the request of A. the bill of sale was not registered within the twenty- one days required by the 17 & 18 Vict. c. 36, but on the expiration of that time another bill of sale of the same furniture was executed in similar terms, and was not registered, and a third, a fourth, and a fifth bill of sale were in the same manner executed, and not registered ; and ultimately a sixth was executed on the 5th of August, 1856, and was registered within the prescribed time, but none of the other bills of sale were cancelled ; and A. was adjudi- cated bankrupt in December, 1856, the act of bankruptcy being committed in July previously, by being denied to his creditors; (1) Overton v. WMtmore, 5 Jur. (N. S.) 188 ; 7 W. E. Ii46. 536 BANKRUPTCY— INSOLVENCY. Part I. and assignees were appointed, who filed a bill against B., praying Sect. 12. ^n injunction to prevent him from removing the furniture, and a declaration that the bills of sale were fraudulent and void, and that they might be delivered up to be cancelled : the Court held, that none of the bills of sale, nor the registration of the last, constituted a dealing or contract within the meaning of the 133rd section of the 12 & 13 Vict. c. 106, and such as was contemplated by that section, and by that section deemed valid ; and that, not- withstanding the registration of the last bill of sale, the furniture remained in the order and disposition of the bankrupt. And, per Lord Justice Turner, the 17 & 18 Vict. c. 36 has in no degree affected the doctrine of reputed ownership (1). Mortgage 6. Where J. and G., being in trade as copper rolling manu- Lrof bank^"^ facturers, had purchased the fee simple of an old silk-mill, and ruptcy. fitted it up with greatly improved and altered machinery and gear of every description fit for their trade, and they then mortgaged the land, mill, machinery, &c., to the plaintiff, with a covenant not to remove any part without permission of the mortgagee, and the money was to remain for seven years (this was stipulated by the lender) ; and J. and Gr. had at the date of the mortgage other property not included in it, and seven months afterwards J. and G. became bankrupts ; Vice-Ghancellor Sir W. P. Wood — upon a bill by the mortgagees against the assignees in bankruptcy, and cer- tain second mortgagees, praying a foreclosure and an injunction against the assignees who had advertised for sale all the machinery upon the lands comprised in the mortgage — held, that the mortgage, although it comprised all fixtures then or thereafter to be placed on the land, and contained a covenant not to remove any of the particulars granted by the mortgage without the permission of the mortgagees, was not an act of bankruptcy, it appearing that the mortgagors had other property, that the mortgage-money was actually advanced, and that the transaction was clear of fraud, and, inasmuch as the mortgage did not put an end to all hope that the mortgagors would carry on the business, made the usual fore- closure decree (2). (1) Stamfield v. Cvhitt, 2 Be G. & (2) Mather v. i'Vwse?-, 2 K. & J. 536 ; J. 21:2 ; 4 Jur. (N. S.) 395 ; 27 L. J. 25 L. J. (Ch.) 361. (01).) 266. BANKEUPTCT— mSOLVENCY. 537 7. The power of a solvent partner, upon the bankruptcy of his Pakt I. co-partner, to sell the partnership property is a personal authority, ' sect. 12. personal in himself in his capacity of partner, which he may xhe power of exercise in that capacity to enable him to wind up the affairs of «■ solvent '^ •' '■ partner, upon the partnership, and to pay the debts thereof, and cannot be bankruptcy of assigned over to another as part of " all his right and interest " in seUpartner- the partnership, or by exposing himself, although perfectly hond ^^^^^f^o^^i^ Me, to a iudsment, and allowing his share to be taken in execution, partner, and ' J 6 ' o _ _ • - cannot be And therefore, where partnership goods had been taken m execution assigned. upon a hond fide judgment against a solvent partner, whose co- partner was bankrupt, upon a bill filed by the assignee, an injunc- tion was granted to restrain the judgment creditor who had pur- chased air the share, right, and interest of the solvent partner in the goods, and had subsequently professed to sell the whole as her own property, from delivering possession of the goods to the purchaser ; the Court also held, that the plaintiff had not deprived himself of his right to this injunction by his own misconduct in violently putting the defendant out of possession, though the defendant was a tenant in common with himself, the defendant wrongly insisting on her right to exclusive possession (1), 8. In Thompson v. Berham (2), Vice-Chancellor Sir J. Wigram injunction to refused an injunction to stay the payment of a dividend by the meut^^'f ^^'^" assignees of a bankrupt, upon the principle that whatever questions dividends by have been decided in the Court of original jurisdiction which first refused, adjudicated upon the subject, should be considered as well decided by a Court of merely concurrent (if it be so) jurisdiction. 9. In Lowndes v. Cornford (3), Lord Chancellor Eldon granted Bankrupt an injunction upon an interpleading bill against bankrupts and sefutinglr"" their assignees, by a debtor to the estate, to restrain an action by f"**?" intend- the bankrupts against the debtor with the view of indirectly con- to^contesUhe testing the commission ; he said he would never permit the bank- '^°°""'^^'°°' rupts to proceed in this action to affect the commission. 10. Where a bankrupt, after the issuing of the commission and Transfer of appointment of assignees, transferred French stock, his property, ^nglisb stock to his wife, who afterwards transferred it to her three sisters, and strained, under two settlements the wife had an absolute power of disposing mpthar''" ' (1) Fraser v. Kershaw, 2 K. & J. 496. (2) 1 Hare 358 (3) 18 Yes. 299. 538 BANKRUPTCY— INSOLVENCY. Part I. of sums of money in the English funds, ■which she exercised by Sect. 12. wi'^ ^^ favour of one of the sisters, and died in her husband's life- trauBferred t™^, and this sister, who usually resided in France, took out French stock administration with the will annexed ; an injunction was granted, at the suit of the assignee of the bankrupt, to restrain the trustees, in whom these funds were vested, from transferring them, on the ground that if the French stock should be proved to have been the property of the bankrupt, the assignees would have a claim upon the assets of the wife (1). Where com- H. Where a commission of bankruptcy had issued against ^ooeeded°* ^- ^^^ ^■' ^^*. ^^^ ^^^ proceeded on, and A. and B. had a very with, Court large sum in the hands of their bankers, the Court refused, refused to ° _ _ ' restrain under these circumstances, to interfere to prevent A. and B. from bankrupts recovering the money at Law from the bankers, although the com- monf/at their ^^ission remained in force. Mr. Justice Ashurst said the creditors bankers. might thank themselves for not proceeding to take out and sue a commission earlier (2). 12. Where a party against whom, under the then Bankrupt Law, a commission of bankruptcy had been maKciously obtained, and to whom, after superseding the commission, the Lord Chan- cellor had assigned the petitioning creditors' bond ; had afterwards brought an action on the case against the petitioning creditor, and a rule of Court had been made by consent, referring the matter in dispute, except the bond assigned, to the award of an arbitrator, and an award had been made with an exception of the bond, it was held that an action could not be maintained on the bond, upon the principle that the action on the case was a waiver of the right to sue on the bond, and that to restore that right the agreement of the parties must be unequivocal (3). Bankrupt 13. In WhUworth v. Davis (4), Vice-Chancellor Sir T. Plumer jWd wilh allowed a demurrer by a bankrupt to a bill joining him with his bmfoT^edfic assignees in charges and prayer for relief, viz., the specific perform- performanoeof ance of a Contract previous to his bankruptcv, and for an iniunc- a contract by ,• . . ■ .i . „ r j' j bankrupt— tion to restram tne assignees from proceeding for rent against the cove^y.'''^' plaintiff in possession ; and the Vice-Ghaneellor said, upon principle, (1) Stead V. Clay, i Euss. 550 ; 1 (2) Fuller v. Gibson, 2 Cox, 24. Sim. 294. (3) Holmes v. Wainewnght, 1 Sw.20. (4) 1 V. & B. 545. BANKEUPTCY— INSOLVENCY. 539 and the direct authority of the Court of Exchequer (1), opposed by Paet I. {"} TT A f TKR ITT no decision, the bankrupt ought not to be made a party, even for the sbot. 12. purpose of discovery. And in the case of Griffin v. Archer (2) the Court allowed a demurrer by a bankrupt to a bill praying a dis- covery and injunction in aid of an. action at law. But upon a bill But bankrupt against a bankrupt and his assignees, charging a fraudulent bank- where^there is ruptcy to defeat the plaintiff's execution, and stating that under an fj.°„^„fg^t^ ^ agreement with the assignees for an arbitration the plaintiff de- bankruptcy to ,„ 11-1111 1- • ■ defeat plain- posited for sale goods which had been taken in an execution against tiffs execu- the bankrupt prior to his bankruptcy, the produce to be in trust po^'e^^on°of according to the award, that he had lost his copy of the agreement, f^ agreement, and that the assignees had obtained the original from the person lirayer for dis- with whom it was deposited for the benefit of all parties, and refused inspection, and praying a discovery and injunction, the Court disallowed a demurrer by the bankrupt. The Lord Chancellor, in his judgment, said : " This is an experimental demurrer, not put in for the sake of this cause, but to feel the pulse of the Court for some other cause. There is no pretence for the demurrer. This is a bin stating a case for relief, a case of confederacy between the defendants ; and the material party, and against whom a decree might be made — not, perhaps, for the specific relief prayed by this bill — is the bankrupt who has demurred. It is by the bill stated that under the operation of the commission, founded upon such an act, the plaintiff is defrauded of goods put into his possession for a hondfide debt " (3). 14. Where a bankrupt, after certificate allowed, was sued for a debt due before his bankruptcy, the Lord Chancellor, reversing a decision of the Master of the Eolls, on the circumstances of the case, relieved against the judgment, and granted a perpetual injunc- tion ; though the Lord Chancellor seemed to admit, that where the case was only matter of mispleading Equity should not relieve (4). But where G-. brought an action for rent against the bankrupt, and obtained judgment before the allowance of his certificate, which not being allowed till after the rule was out, he could not plead it and take the benefit of 4 & 5 Ann. c. 17 ; but in the sei.fa. against the bail the certificate was pleaded, and the plea overruled, so that no (1) Griffin V. Archer, 2 Anstr. 478. (3) King v. Martin, 2 Ves. jun. 641. (2) Supra. (4) BUchMl v. Combs, 2 P. Wms. 7o! 540 BANKEUPTOY-INSOLVENCT. Pabt I. remedy was left but in Equity, except by audita querela, which is Sbot. 12. an equitable remedy at Law : on a motion for an injunction the Lord Chancellor refused to grant one, because this was a merciful law made in favour of the bankrupts, and in prejudice of creditors, ergo, not to be extended in Equity (1). Injunctions 15. In Kirltfatrioh v. Bennet (2), it was held that where the, obtained in object was to restrain a bankrupt from harassing his assignees by 'd • th*''^d "iii^piting, by means of an action commenced by him, the validity Bankruptcy of the Commission, that it should have been done by petition — that Laws, but this . . .-r.n t-htta-t Court could is to Say, a petition in Bankruptcy ; and Mr. Drewry, m his work interfere in On Injunctions (3), says, that it might be stated as the settled special cases, practice then, that an injunction in Bankruptcy was to be obtained on petition (4), though " the Court will interfere if a special case for its interference be made out " (5). This Court 16. Upon a bill by cestui que trust against the assignees of the suit of cestui trustee, who had become bankrupt, for an account, and payment of restrain*' what was due in respect of a breach of trust committed by the bank- assignees from rupt, and to restrain the assignees from distributing Ijis estate amongst bankrupt's his Creditors, Vice-Chancellor Sir L. Shad well refused the injunction, will decide On the ground that the Court of Chancery had no jurisdiction, simpli- the *i*l® .^^ citer, to restrain assignees from making a dividend of that which is portiou of the admitted to be the estate of the bankrupt, at the suit of a person plaintiff claiming as a general creditor, and not claiming any specific portion c dim 1 . ^^ ^j^^^ estate as being her property ; the Vice-Chancellor said : " If the question had been whether any assets, any personal estate, or any other species of property which was in the hands of the assignee as part of the bankrupt's separate estate, was, in fact, the property of the plaintiff, this Court, I apprehend, would decide the question, because the jurisdiction in Bankruptcy has authority to deal only with that which is the bankrupt's estate, but has no power to de- termine what is the bankrupt's estate. If the question be a legal one, it must be tried at Law ; and if it be an equitable one, it must be decided in this Court. But when you have determined what is the property of the bankrupt, the whole administration of it falls (1) Bagshallv.Qore, 7 Vin. 131, pi. 5. (4) Vide, now, the Bankruptcy Act, (2) 1 S. & S. 408. 1869—32 & 33 Vict. c. 71, ss. 13, 65, (3) Page 309. 71, 72. (5) Kerr, Inj. 585, 153. BANKEUPTCY— INSOLVENCY. 541 under the iurisdiction of the Court in Bankruptcy " (1) ; but as the PaetI ,,-..„ , Chapter III. case cited in Eden (2) might have induced the plamtiii to make seot. 12. the motion, it was refused without costs. And where plaintiffs in Equity, claiming to be admitted as creditors under the fiat in Bankruptcy in respect of a breach of trust by the bankrupt, which was the subject of the suit in Equity, applied, on a dividend of the bankrupt's estate being about to be declared, to be allowed to enter a claim upon the proceedings, and to have a fund reserved ; and the application, being refused by the Commissioners, was renewed by petition to the Court of Eeview, when that Court made no order, but thought that the assignees should not pay any dividend until the petitioners had had an opportunity of applying to this Court ; and they accordingly filed a supplemental bill, praying an injunc- tion to restrain the assignees from paying any dividend which might be declared until the cause in Equity was heard, or without reserving a sufiScient fund to answer the plaintiffs' demand ; Vice- Chancellor Sir J. Wigram held, that if the Court of Chancery had jurisdiction to interfere in .the distribution of the estate of a bank- rupt, the Court ought, upon general principles, after an adjudica- tion in Bankruptcy by the Commissioners, and then by way of appeal by the then Court of Eeview, which, the Vice-Chancellor said, was "a Court, at least, of concurrent if not of exclusive juris- diction," on the subject of the distribution, to refrain from exercising such jurisdiction ; and the Vice-Chancellor in his judgment said : "The sound principle in such cases would appear to be, that whatever questions have been or might have been decided in the Court of original jurisdiction which first adjudicated upon the subject, should be considered as well decided by a Court of merely concurrent jurisdiction " (3). And where an insolvent debtor and Court refused his wife conveyed estates belonging to the latter to trustees, to raise sujfofcre- ^* and pay £35,000 to the insolvent's assignees (who were parties to ^'^^^7 ^^<^ .1 T T\ J. ,1 1 j5i /. 1 ■ T carrying out a the deed), tor the benefit of his creditors, and the insolvent died compromise before that sum was raised, and after his death the assignees made widow of in- a compromise with his widow, by which they agreed to accept from ^"^Y^"* ^'^^ her a smaller sum, and one of the creditors filed a bill against the (1) Ealford v. Gillow, 13 Sim. 44; (2) Atkinson v. Plummer, ante. correcting Atkinson v. Plummer, cited (3) Thompson v. Derham, 1 Hare, in Eden, Inj. 298. 358. 542 BANKEUPTCY— INSOLVENCY. Part I. Chapter III. Sect. 12. If Insolvent Court had jurisdiction, this Court would not interfere. assignees, the trustees, and the widow, charging them with collusion, and praying that the trusts of the conveyance might be performed, and that the defendants might be restrained from carrying the compromise into effect ; Vice-Chancellor Sir L. ShadweU allowed a demurrer by the assignees for want of equity, on the ground of want of jurisdiction, as the plaintiff ought to have applied to the In- solvent Debtors Court to have the assignees removed, "which (the Vice-Chancellor said) would have given the plaintiff all the relief he sought by this bill." The Vice-Chancellor said that " a par- ticular arrangement was made, which was, in effect, giving up to a certain extent the particular right, whatever that might be, which was derived from Sir Thomas Champneys (the husband) in consideration of a certain sum, so that that sum would be assets received by the assignees under the insolvency ; and, prima facie, that sum would have to be applied and to be accounted for by the assignees under the jurisdiction of the Insolvent Debtors Court " (1). And in Maguire v. O'ReiUy (2), it was held that if the Insolvent Court had jurisdiction to grant the relief sought, a creditor of the insolvent ought not to have instituted a suit in Equity to obtain the same relief; and, therefore, a bill filed by a creditor to restrain the a,ssignee from selling the insolvent's estate, on the groimd that his conduct, in relation to the intended sale, was fraudulent, was dismissed with costs. And in Perry v. Walker (3) the Court refused, under special circumstances, an injunction to stay proceedings in the Court of Bankruptcy under 1 & 2 Vict c. 110, s. 8 (then in operation), after a decree in this Court for an account against the party taking those proceedings. The Vice-Chancellor, Sir L. Sbad- well, said that if this were a case in which on general grounds the defendant ought to be prevented issuing a fiat, the Lord Chancellor, or the then Court of Review, was the proper quarter to which to make an application on the subject. And where a creditor had sued out a judgment-debtor summons, and afterwards, but before the day fixed for the appearance of the debtor, the debtor executed and registered a composition deed under sect. 192 of the Bank- ruptcy Act, 1861, which deed the creditor never executed, and the debtor filed a bill in Equity to restrain proceedings on the summons, (1) Yewens v. RoUnson, 11 Sim. 105. (2) 3 J. & Lat. 224 ; 2 Ir. Eq. 335. (3) 1 Y. ct Coll. C. 0. 672. BANKEUPTOY— INSOLVENCY. 543 on motion for an injuQction to that effect, Vice-Chancellor Sir PabtI. m CjTTAT'TFR III E. Malins declined to restrain the creditor. The Vice-Chancellor said sect. 12. that the application was made on the ground that the deed operated " as a release of the debt ; but that if it could be treated as a release in this Court it would be so treated in the Court of Bankruptcy, and refused the motion for an injunction with costs (1). But in Thia Court Attwood Y. Banks (2) the Master of the Rolls, Lord Langdale, held tion to restrain, that this Court had jurisdiction to restrain a party, upon equitable grounds^pro-^ grounds, from taking proceedings under the said Act (1 & 2 Vict, oeedings to c. 110, s. 8), to make a party a bankrupt. In this case, partners bankrupt, being indebted to their bankers, it was agreed between them that one should retire, that the assets should be transferred to the con- tinuing partners, who were to take upon themselves the partnership liabilities, and that the bankers should release the retiring partner from his liability. The bankers signed a memorandum acceding to the agreement, and having afterwards attempted, by means of the debt, to make the retiring partner a bankrupt, they were restrained from so doing by an injunction. But in Pirn v. Wilson (3) it was held by Lord Chancellor Cottenham, overruling a decision of Vice- Chancellor Sir L. Shadwell, that proceedings by a creditor under this statute, 1 & 2 Vict. c. 110, s. 8, with a view to making the alleged debtor a bankrupt in default of his satisfying the demand, would not be interfered with in a Court of Equity, on the ground merely of an allegation that such proceeding was dictated purely by fraud and malice, and that no debt was in fact due. 17. Plea to a bill for specific performance of an agreement for a lease to the plaintiff, and an injunction against an ejectment, that the defendant had, since the bill filed, taken the benefit of an Insolvent Act, was overruled on the ground that this circum- stance did not exist when the bill was filed, and that the conse- quence was that the assignee must come in by a supplemental suit (4). 18. In Bell v. Bird (5) Vice-Chancellor Sir G. M. Giffard held Administra- that the administration of the trusts of a creditors' deed, which has cieditoS'd^'d (1) Berkeley v. Bicker, 15 W. E. (4) De Minckwitz v. Udney, 16 Ves. ^^^- 466 ; ei v. Williams v. Kinder, 4 Ves (2) 2 Beav. 192. 387. (3) 2 Ph. 653, (5) L. E. 6 Eq. 635 ; 16 W. P. 1165. 544 BANKRUPTCY— INSOLVENCY. Pakt I. been assented to and registered, so as to render'it valid and binding SiiOT. 12. " under the provisions of the Bankruptcy Act, 1861, s. 192, belongs under Bank- exclusively to the Court of Bankruptcy ; and allowed a demurrer ruptcy Act, for want of jurisdiction to a bill filed by creditors on behalf of to tte Court of themselves and all other persons entitled as creditors to the benefit an^d tMs'oiLit 0^ ^^^ ^eed, asking that the trusts of the deed might be carried will not, in j^^q execution under the decree of the Court, and praying a receiver, ordinary cir- _ ' l j m > eumstanoes, and injunction to restrain the defendants, the debtor and the two suit for the trustees of the deed, from getting in or intermeddling with the of tiie'tnista™ estate. In Martin v. Powning (1), Lords Justices Selwyn and such a deed. Griffard held that the Court will not, in ordinary circumstances, entertain a suit for the administration of the trusts of a deed regis- tered under the Bankruptcy Act, 1861 ; and they also held — reversing a decision of Vice-Chancellor Sir J. Stuart — that the allegations in the bill, that the defendants, the trustees of the creditors' deed, bad made large profits by supplying the estate with goods while the debtor's business was going on under their superintendence, and that they had made large payments out of the estate in exoneration of the liability which they themselves were under as sureties for the payment of certain instalments by the debtor, did not take the case out of the general rule, the Court of Bankruptcy having sufficient powers to enable it to deal with But this Court such questions. But this Court has jurisdiction to appoint a receiver, receiver, to where it is necessary, to prevent irreparable mischief from breach plrlue mis"-" ^^ Covenant, although the property may hare to be distributed in tr^'^^h™? Bankruptcy, and though the Court of Bankruptcy may be able to covenant. give the Same relief (2). In Stone v. Thomas (3), Lord Chancellor Hatherley held that the jurisdiction of the Court of Chancery in the administration of creditors' deeds was not excluded by the Bankruptcy Act, 1861 ; but that the Court of Chancery would not exercise its jurisdiction except in cases where the Court of Bankruptcy was unable to give adequate relief. And where a creditor filed a bill against the trustees of a creditors' deed, allegiog that one of the trustees had purchased some of the property at an (1) L. R. 4 Ch. 356 ; 38 L. J. (Gh.) 16 W. E. 1072. 212 ; 20 L. T. (N. S.) 133 ; 17 W. R. (3) L. R. 5 Ch. 219 ; 39 L. J. (Ch.) 386. 168 ; 18 W. R 385 ; 22 L. T. (N. S.) (2) Riclies V. Owen, L. R. 3 Ch. 820 ; 359. BANKRUPTCY-INSOLVENCY. 545 undervalue, and praying that the sale might be set aside, and the Part I. trusts of the deed administered by this Court ; the Lord Chancellor g^oT. 12. held, that this was not a sufScient ground for the exercise of the jurisdiction of this Court, and dismissed the bill with costs. And where a debtor, by a deed registered under the Bankruptcy Act, 1861, covenanted, when required, to assign his estate to inspectors to be administered as in Bankruptcy, and he afterwards became bankrupt, and the inspectors filed a bill against the assignee in Bankruptcy, and a mortgagee of the debtor, claiming the balance in the hands of the mortgagee; Lord Chancellor Hatherley held, alfirmihg the decision of the Master of the Eolls, that the Court of Chancery would not exercise its jurisdiction between the in- spectors and the assignee, as both were subject to the Court of Bankruptcy (1). 19. Where a married woman gave up to her husband £500, held upon trust for her separate use, upon the understanding that the husband would settle his furniture upon her for her separate use, and the husband assigned the furniture to a trustee to hold for the use and benefit of his wife ; and the property remained in the joint possession of the husband and wife, but the assignment was not registered under the Bills of Sale Act (17 & 18 Vict. c. 36) ; and the husband afterwards became bankrupt : upon a bill filed by the wife, praying that the deed might be reformed, for the purpose of creating thereby a binding trust of the furniture and eflfeets for the separate use of the plaintiff, and that in the mean- time the defendant B., the creditors' assignee, might be restrained from selling or holding possession of such furniture and effects, Vice-Chancellor Sir E. Malins held, that independently of the Bills of Sale Act the plaintiff would have been entitled to have the furniture secured for her separate use ; but that the assignment operating as a bill of sale came within the Act, and not being registered under the Act, the furniture remained in the order and disposition of the bankrupt, and could not be protected ao-ainst the assignee, and dismissed the bill with costs (2). 20. Although, where a trust has been created for an illegal The Court will (1) Phillips V. Furler, L. K 5 Cb. (2) Ashtony. £lackshaw,L R 9Ea 746 ; 18 W. E. 985 ; 22 L. T. (N. S.) 510 ; 39 L. J. (Ch.) 205 ; 18 W E '^07- 307; 21L. T.(N. S.)197. 2 N 546 BANKRUPTCY-INSOLVENCY. Part I. purpose, the Court will not in general interfere, it will do so where Seo™'i2. ^^^ illegal purpose fails to take effect. Where, therefore, the ^J Tj r plaintiff, being in pecuniary difSculties, assigned certain leasehold purpose of a property to a trustee with the view of defeating his creditors, and trust fails, and ,,,„ „ , Ti-ijii ii, assignee with two-and-a-half years aiterwards was adjudicated bankrupt, but trastto°clefeat obtained the sanction of the creditors, under s. 110 of the Bank- ?-'^'^*t°j^'t ruptcy Act, 1861, to an arrangement by which his estate and re-assign. effects were re-vested in him, he covenanting to prosecute a suit for the recovery of the assigned property, and to pay a composition of 2s. Qd. in the pound to his creditors in case such suit had a successful termination ; the Master of the Rolls, Lord Eomilly, held — upon a bill filed by the plaintiff, praying that the defendant might be declared to be a trustee of the property for the plaintiff, and might be ordered to convey the same to the plaintiff, and for an injunction to restrain the defendant from receiving or intermeddling with the rents and profits, and. from proceeding with an action at law to recover possession — that the plaintiff was entitled to have the property re-conveyed to him by the defendant, who claimed by assignment (charged in the bill with notice) from the original trustee (1). The Court 21. Where, by deed, a father and son settled certain real estate by interiocu- to the use of the father for life, and after his decease to the use of JP'^y tv'™r ^^® ^°^' ^^ ^^^'^ li'^iiig) ™ fee ; and a power was reserved to the ationofpro- father and son of revoking the uses and appointing new uses; and pertycon- , , n , f , . ,..-,, veyedbya by a subsequent deed, the son bemg at the time insolvent, the tobeframiu- father and son revoked the old uses in favour of the son, and lent as against appointed the estate to such uses as the father should appoint, and in default of appointment to the use of the son absolutely ; and the son was afterwards adjudicated bankrupt; and a bill was filed by the creditors' assignees to set aside the latter deed as fraudulent and void as against the creditors — an interlocutory injunction was granted restraining the father, until the hearing, from exercising his power under the deed in favour of a purchaser for value, but without interfering with the exercise of his power in favour of volunteers. The Vice-Chancellor, Sir R. Malins, said, in such a case registration of the suit as a lis pendens, under 2 & 3 Vict. 0. 11, would be a very doubtful protection, bcc luse it might be so (1) Symef: v. Ruglm, L. T?. 9 Eq. 475 ; 39 L. J. (Ch.) 304 ; 22 L. T. (N. S.) 462. BILLS OP SALE -SALES— ALIENATIONS— MOETGAGBS. 547 registered as not to give any notice of the real obiect of the suit Part I. „. . n • X /■. X Chapter III. as affecting this property (1). Sect. 12. 22. Equity will relieve against the suing out or levy of execution j, j. j.^_ upon a judgment enjoined, which has been discharged by pro- lieges against ceedings in Bankruptcy (2). So a perpetual injunction will be discharged by granted against a suit upon a claim proved against the estate of a bankruptcy, bankrupt in the United States District Court, but afterwards con- ^"."^g^raiMd tested by the debtor or assignee, and expunged (3). on a claim 23. A creditor's bill, to enjoin a debtor from proceeding to obtain bankruptcy. his discharge under the insolvent law of New York, must shew special cause for the injunction (4). Sect. 13. Bills of Sale — Sales — Alienations — Mortgages. 1. Where the plaintiffs, farmers, had agreed with their father for the use of a barn and yard on his premises, wherein to put their carts and farming implements, and an injunction had been granted to restrain the sheriff from selling the goods of the plaintiffs found upon the lands of their father, against whom execution had issued upon a judgment at Law, the Court, upon a motion to dissolve, held that, there being no trust, and. the plaintiffs having their remedy at Law, a Court of Equity would not interfere by injunc- tion (5). 2. A party claiming a title in himself, but privy to the fact of another dealing with the property as his own, will not be permitted to assert his own title against a title created by such other person, although he derives no benefit from the transaction. And where the plaintiff delivered tea-warrants made payable to the broker, as a security for advances by the broker on behalf of the plaintiff, and the broker afterwards, without the knowledg-e of the plaintiff, although the plaintiff was afterwards acquainted with it and (1) Bey f us v. Bullock, L. R. 7 Eq. (4) Shanch v. Sniff en, 1 Barb 32 ■ 391 ; 17 W. R. 526 ; 20 L. T. (N. S.) v. HiUiard, Inj. 39, 211, 392-402, 2nd 166. Ed., on injunctions in the United (2) Peatross v. McLaughlin, 6 Gratt. States in matters of bankruptcy and 64 (Amr.) -insolvency. (3) Fease v. Benneif, 17 N. H. 124 (5) Jackson v. Stanhope, 15 L. J. (Amr.) (N. S.) Oh. 446 ; 10 Jur. 676. 2 N 2 548 BILLS or SALE— SALES-ALIENATIONS— MORTGAGES. Pabt 1. received the benefit of the transaction, indorsed and re-pledged Sect. 13. the warrants to 0., to secure advances made by C. to the broker, but of which, unknown to C, the plaintiff was to have the benefit ; Lord Chancellor Cottenham, upon a suit by the plaintiff against the broker and C, the holder of the warrants, praying to redeem the property in pledge on payment of any balance found due on the account between himself and the broker, held — reversing a decision of Vice-Chancellor Sir L. Shadwell — that the plaintiff had no equity to restrain the holder from proceeding to an immediate sale (1). 3. There is no exclusive right in a subject (in this case a secret medicine or syrup) not protected by patent to prevent a sale by another person under the same title, that other person not assuming the name and character of the plaintiff. The Vice-Chancellor, Sir. T. Plumer, upon allowing a demurrer to the bill, said that the defendant merely represented that he sold, not the plaintiff's medicine, but one of as good a quality, and that he was at perfect liberty to do so (2). 4. Although in Pechel v. Fowler (3) it was held that on a trust to sell an estate a suggestion in the bill, by the owner of the estate, of improper conduct of the trustees in not giving sufficient notice of the sale, there being no case made of irreparable injury, was not a ground for an injunction to stop the intended sale ; for if the trustees sold in such a manner as to commit a breach of trust, they would be liable. But in Attorney-General v. Mayor of Liverpool (4), the Master of the EoUs said that it had become the invariable prac- tice, when any act involving breach of trust was intended to be done, Trastees con- though not in its consequences irremediable — where, for instance, wfthout ^ trustees contracted to sell without proper care, or in a way which oH^onsTs-' *^® parties interested considered inconsistent with the trust, to tent with the apply to the Court to prevent them ; that the case cited (i.e., trust, will be ^ restrained. Pechel V. Fowler (5), which he said he believed had been over- ruled as often as it had been considered) would go to this extent, (1) Nicholson v. Eooper, 4 My. & see the Exhibition Medals Act, 1862, Cr. 179 ; 2 Jiir. 9. 26 & 27 Vict. c. 119. (2) Oanham v. Jones, 2 V. & B. 218. (3) 2 Anstr. 549. See Morisonv. Moat, 9 Hare, 241 ; and (4) 1 My. & Cr. 171, 210. (5) Sttpra. BILLS OF SALE-SALES-ALIENATIONS— MORTGAGES. 549 that the Court ought never to interfere — parties might deal with Pakt I. the property just as they pleased, and while the suit was pending seot. 13. no new right could be acquired ; that, without adverting to more recent authorities, or to modem practice, the ease of Curtis v. Marquis of Buckingham (1), and another in Vesey (2), proved that such was not the practice, at least of this Court, whatever might have been the rule in the Court of Exchequer. 5. In Harcourt v. Bamsbottom (3) the Court refused an injunction to restrain the exercise of a power of sale given to secure a balance to be ascertained by an arbitrator, although the award was made after the plaintiff had executed a deed for the purpose of revoking his authority. Lord Chancellor Eldon, in answer to the argument that the award was not good because the authority was revoked, said that if it was revoked at Law he could not have considered it (under the circumstances of this case) as revoked in Equity. 6. At Law non-existing property to be acquired at a future Non-existing time is not assignable ; in Equity it is so. At Law, although a acquired *"t^^ power is given in a deed of assignment to take possession of after- future time is n , . , . „ T assignable in acquired property, no interest is transferred, even as between Equity, and the parties themselves, unless possession is actually taken ; in mortgagees of Equity the moment the property comes into existence the agree- ^°^ property. ment operates upon it. And where T., being tenant of a mill o'^erajudg- and premises, by deed assigned to B. all the machinery in or about the mill, upon trust for securing payment of £5000 to H. • and the deed recited that the machinery specified in the schedule thereto belonged to H., and that T. had agreed with H. for its purchase, but that, being unable to pay the purchase-money, it was agreed that the same should remain unpaid, and be secured in manner therein expressed, and the machinery was assigned to B. upon trust for T. until demand was made of the purchase-money, and then for T. absolutely, if he paid it ; but, in default, to sell and pay the proceeds in satisfaction of the money due on the security • and the deed provided that all the machinery which, during the continuance of the security, should be fixed or placed in or about the mill, in addition to, or substitution for, the said premises should be subjected to the same trusts ; and the schedule comprised (1) 3 V. & B. 168. (and see Anon. 6 Madd. 10). (2) EcMiff v. Baldwin, 16 Ves. 267 (3) 1 Jac. & W. 505. 550 BILLS OF SALE— SALES- ALIENATIONS— MOETGAGBS. Part I. specified articles, and all other the machinery in or about the Sect' 13. ™ill > ^^^ the deed was registered as a bill of sale ; and after the date of it T., who remained in possession of the mill, placed other machinery there in addition to, and substitution for, that which was there at the date of the deed, of which he gave notice to H. ; the House of Lords (reversing a decision of Lord Chancellor Campbell, and afSrming that of Vice-Chancellor Sir J. Stuart, which had been reversed by Lord Campbell), upon a motion for an injunction to restrain the sale of the machinery, &c., held that, as between H. and a judgment creditor of T. who had issued a fi. fa., under which the sheriff seized the added or substituted machinery, and sold part, B. was entitled to all the machinery in the mill at the date of the execution, including the added and substituted machinery, on the ground that immediately on the new machinery and effects being fixed or placed in the mill they became subject to the operation of the contract, and passed in Equity to the mortgagees as equitable owners, to whom T. was bound to make a legal conveyance, and for whom he was in the meantime a trustee of the property, the equitable mortgagees having priority over the execution creditor without the formality of taking actual possession (1). And, ^er Lord Chelmsford, there is no ground for excluding sales of future-acquired property from the provisions of the 17 & 18 Vict. c. 36 (2). 7. Where A. J3. assigned the lease for twenty-one years of a house in which he resided, together with two policies of assurance upon his life, to the defendant by way of mortgage, to secure the repayment of £250 and interest, as well as the premiums upon the policies; and the mortgage-deed contained a clause by which the mortgagor attorned tenant from year to year to the mortgagee in respect of the leasehold house at the yearly rent of £176, pro- vided that the mortgagee might at any time, without notice, take possession of the premises, and determine the tenancy ; and there was no specific provision that any part of such rent should be applicable to the principal of the debt ; and the mortgagor became bankrupt, and the mortgagee distrained upon the furniture in the house, which was not the property of A. B., for a year's rent under (1) JMroyd v. Marshal!, Jur. (N. S.) 213 ; 11 \V. E. 171 ; 9 W. B. 303. (2) lb. BILLS OP SALE-SALES— ALIENATIONS— MOETGAGES. 551 the attornment clause, tliouerh at that time the landlord's rent of Pakt i. ° Till ■ Chaptek III. £115, the interest upon the money, advanced, and the premiums Seot. is. upon the policies, had been paid : upon a demurrer to a bill pray- ing an injunction to restrain the defendant from disposing of, retaining possession of, or interfering with, the furniture and household effects, goods, and cbattels of the plaintiff in the house, and that the defendant might pay damages for the wrongful seizure and detention of such furniture, goods, and chattels, Vice- Chancellor Sir E. Malins held, that the attornment clause was not intended to enable the mortgagee to repay himself any of the capital advanced, but only to secure the payment of rent, interest, and premiums. The Yice-Chancellor said that he came to the conclusion that the power of distress was intended merely to secure the different outgoings payable under the deed — that is to say, the rent of the house to the landlord, the interest upon the money advanced, and the premiums upon the policies — and that it was not the intention to enable the mortgagee to obtain repayment by distress of any part of the principal ; and granted an injunction, but without prejudice to any right of the defendant to distrain for rent due since the date upon which the above-mentioned distress was made (1). 8. Where a bank recovered a judgment against A. for |59,000, and B., assuming to act as agent and attorney of the bank, effected a compromise with A. to pay $20,000, and A. assigned and delivered over to B., as agent and attorney, property and securities to that amount, and the bank denied the authority of B. to make the compromise, and A. assigned the property and securities to C, and B. refused to redeliver them, and was proceeding to collect and dis- pose of them ; upon bill filed by C, an injunction was granted to restrain the collection and disposition of the property and securi- ties; and the Chancellor refused to dissolve the injunction, on motion to dissolve, for want of equity in the bill (2). 9. Where there is a mortgage upon the capital stock of a corpo- ration, and the treasurer is one of the mortgagees, an injunction will be granted to stay a sale under a power in the mortgage until (1) Eampsonv. Fellows, L. R.6 Eq. (2) Pratt v. Campbell, Earring, Ch 575 ; 37 L. J. (Ch.) 694 ; 19 L. T. 236 (Amr.) (N. S.) 6. 552 JUDGMENTS -CHAEGE— EXECUTIONS. Part I. tlie treasurer shall furnish to the mortgagor any information rela- Chaptek III. . . . o o ./ ^ Sect. 13. * tive to the Condition of the corporation, and affecting the value of the stock, which the treasurer may have obtained by virtue of his office, beyond what appears from the books of the corporation (1), Sect. 14. Judgments — Charge — Executions. Judgment ^' ^ judgment creditor cannot obtain a charge in Equity on an creditor can- equitable debt by analogy to an attachment of a legal debt under not obtain a ° /-, t charge on an the garnishee clauses of the Common Law Procedure Act, 1854 (2). by^analogy to -^ judgment debtor was entitled under a will to one-fourth of the a*ieKai°d"bt°^ profits of a business, which was nianaged by trustees, subject to a underthe condition of forfeiture if he alienated or charged his share. A clauses of sum of money arising from the business was standing at the Procedure ^ bankers in the names of the trustees. The judgment creditor filed Act, 1854. ^ ]^[\\ iq establish a charge against the money at the bankers repre- senting the judgment debtor's share of past profits, by analogy to an attachment under the garnishee clauses of the- Common Law Procedure Act. Lord Chancellor Hatherley, affirming a decision of the Master of the Eolls, Lord Romilly, held, that the bill could not be sustained. Lord Hatherley said that it was clear that the process {i.e., that directed by the Common Law Procedure Act, 1854) was only adapted for the simple case of a debt due from a third person to the judgment debtor, where the judgment creditor could at once obtain payment of the debt. He also said that a further objection to the bill was, that it was quite clear that the moment the plaintiff could establish a charge upon the defendant's share in the profits, that instant the defendant's interest ceased. 2. Eails and other chattels which, by the terms of a contract, when placed on the laud became the absolute property of the com- pany, the contractor to have no property therein, except the right of using them on the land for the purpose of the works, except on completion of the line, as a condition precedent, and the plant being to be given to the contractor as part consideration, or, if used (1) Friae v. Chainii, 2 E. I. 429 38 L. J. (Ch.) 285 ; '20 L. T. (N. S.) (Anir.) li;8; 17 W. E. 596. (■J; Ihrshij V. Cox, 1.. E. 4 Cli. ;i2 ; JUDGMENTS -CHAEGE-EXECUTIONS. 553 by the company, to be paid for, were held not liable to be taken Pabt I. in execution for the company's debts (1). Sect. 14. 3. Where an injunction is issued after execution against the goods, the sheriff may proceed to sell, but the Court will in special cases stay the money in his hands (2). 4. Where A. executed a deed, by which he conveyed chattels to B. in trust, as to one moiety for certain scheduled creditors, as to the other for A.'s own benefit, and C, a creditor not in the schedule, sued A. and recovered, and took out execution against the chattels in the hands of B., and B. sued the sheriff's officer, and recovered at Law ; upon a bill for an injunction, on the ground that the deed was void against creditors for the moiety, the Court refused the injunction, for there can be no execution against goods in the hands of a trustee (?>). 5. It is held, in general, that the jurisdiction of Equity to enjoin a sale of real estate is coextensive with its jurisdiction to set aside and order to be cancelled a deed of the property (4) ; so that if a Equity will valid judgment at Law be iniquitously used, Equity will annul yaiidjudg- what has been improperly done under it (5): So Chancery will ^™^\i™a grant an injunction to prevent a party making use of a legal writ "sed inequi- of execution for the purpose of vexation and injustice (6) ; or restrain the sale of property illegally taken in execution (7) ; or service of an execution issued too late (8) ; or an execution issued on a judgment the record of which has been destroyed, there being no renewal by substitution (9). An execution sale may be en- or where it joined where it would cause a cloud on the title of the complain- Xud^orcom^ ant (10) ; and this, although a sale of only the debtor's " right, Pj^ant's title, and will." So, although in fact no title will pass thereby, the property not belonging to the execution defendant (11). (1) Beeston v. Marriott, i Giff. 436. (7) Kenyan v. Clarice, 2 E. I. 67 (2) Bawkshaw v. Parkins, 2 Sw. (Amr.) 539, 549. (8) North v. Swing, 24 Tex. 193 (3) Oailland v. Estwick, 2 Anstr. (Amr.) 381'. (9) Cyrus v. Sicks, 20 Tex. 483 (4) Pixley v. Euggins, 15 Oal. 127 (Amr.) (Amr.) . (10) Key, &c., v. Munsell, 19 Iowa, (5) Bissell V. Bozman, 2 Dev. Ch. 305 (Amr.) 160 (Amr.) (11) Pixley v. Muggins, 15 Cal. 127 (6) Colt V. CornwcU, 2 Root, 109 (Amr.) (Amr.) ( 554 ) Part I. Seot. 15. Grants. Chapter III. , --., , „ i t ,. , /. -i i . 1. Whether a conveyance of land for the purpose oi a railway being constructed thereon be voluntary or compulsory, every grant carries with it, in addition to the special protection afforded by the Eail- way Act in respect of workings within twenty yards distance of any masonry or building, all that is necessary to the enjoyment of the subject-matter of it ; and a certain amount of lateral support being essential to the safety of the railway, that is a necessary incident of the grant. But the amount of support depends on the special cir- cumstances of the locality : thus, if the railway crosses a river, then the abutments of the bridge will require a greater support than the other parts of the railway, and the conveyance will carry such support as an incident (I). And certain reservations of minerals contained in a Eailway Act were — upon a bill by the railway com- pany to restrain the removal of water or coal necessary for the stability of the bridge — held by the House of Lords not to vary the ordinary rule of Common Law as above sta,ted (2). But in cases like the foregoing, it being impracticable to define beforehand the limits within which the workings ought to be restrained, an injunc- tion is properly expressed in general terms against working so as to produce the particular evil apprehended (3). 2. At Common Law, where A. has two interests in the same hereditament, as houses or minerals, or a watercourse and also a mill, or two storeys in a house, and demises one part, e.g. the lower portion of a house, reserving to himself the upper part, the grantee either for years or in fee will not, except by express stipulation or very direct implication, be permitted to use the portion held by him so as to interfere with the enjoyment by the grantor of the portion of which he has retained possession (4). Sect. 16. Agreements not under Seal. 1. Although a tenant in the occupation of premises under au agreement not under seal for a longer period than three years, is (1) EllioU V. North Eastern By. Co., (3) lb. 8 L. T. (N. S.) 337 ; 32 L. J. (Gh.) 402. (4) Diiydah v. Eobertion, 3 K. & J. (2) lb. 695 ; 3 Jur. (N. S.) 687. AGEEEMENTS NOT UNDER SEAL— SETTLEMENTS. 555 at Law only a tenant from year to year (being yoid at Law as a Pakt i. , . „ 1 1 • -r. -J. ChaPOTEE III. lease (I) ), yet the agreement being entorceable m il^quity as an sbot. 16. agreement for a lease, he is entitled, as an " adjoining owner," to be served with a proper notice, required by the Metropolitan Build- ing Act, 1855 (18 & 19 Vict. c. 122), of the works proposed to be executed by the " building owner " (2), the provisions in the above Act of 1855 applying to equitable as well as legal owners ; and an injunction, obtained ex parte, to restrain the defendants from pulling down a certain wall until a proper screen for the protection of the plaintiffs' property was erected, was made perpetual, with costs. Sect. 17. Settlements. 1. Where C, who had filed a bill as a creditor to establish the Court will validity of his security, in priority to a voluntary settlement f"if^ to™e executed by his debtor, sent to the trustees of the settlement a ^^f ^i^'g^'an^. notice not to part with any of the funds in their hands, and the ing notice not , . , , T , . T . . , to do to, unless trustees repued, that unless certain proceedings were instituted proceedings within one month they should disregard the notice, and no pro- ^^'^ "^ ™' ceedings were instituted within the time, and subsequently a bill was filed by the cestui que trust under the settlement, praying for an injunction to restrain 0. from continuing the notice, the Court ordered that the trustees should be at liberty to deal with the income of the funds until further order, according to the trusts of the settlement (3). 2. Where A., having power to raise the portions provided for his younger children under his settlement by sale or mortgage, or other disposition of a reversionary term of 1000 years, in 1815, on the marriage of one of his daughters with Lord C, purported to charge by appointment this reversionary term with £4000 and interest ; and after the death of Lord C, his personal representative, having been advised that the power to charge had not been duly executed, proceeded at Law against A. on the covenant of title ; (1) Parher v. Taswell, 2 De G. & J. (3) Lonergan v. Stourton, 9 Jur. 559 ; 8 & 9 Vict. c. 106, s. 3. (N. S.) 1067 ; 11 W. E. 984 ; 9 L. T. (2) Cowen. v. Phillips,^ Jur. (N. S.) (N. S.) 196. 657 ; 11 W. E. 706. 556 SETTLEMENTS. Paet I. and A. gave judgment at Law, and filed his bill, stating that the ' Skot. 17. ' sum would, in a Court of Equity, be decreed to be well charged, and praying a perpetual injunction against the proceedings at Law, offering, at the same time, to execute any instrument which shoidd be deemed necessary for charging the same ; the Court held, that A. should, with the trustees of the term, execute to the represen- tatives of Lord C. a mortgage of the lands and premises in the term for £4000 and interest, and that a perpetual injunction should be granted against any further proceedings at Law (1). Voluntary set- 3. In Pulvertoft V. Pulvertoft (2), Lord Chancellor Eldon held though 'a fair ^^^^ ^ Voluntary settlement was void under the 27 EUz, c. 4, ^T^^&°'^^°'^ against a subsequent purchaser for valuable consideration with void against notice, though a fair provision for a wife and children, and refused subsequent .. . .. inin/. n- i purchaser an injunction restraming the husband from selJing; but overruled wi no ice, ^ demurrer by the husband as covering too much, the plaintiff (the wife) being entitled, until an actual sale, to an execution of and the the trust; but when a voluntary settlement of lands is avoided have^no^"^^ by a Subsequent sale for valuable consideration, the volunteers equity have no equity against the purchase-money payable to the 8<^£llIlSt til6 purchase- Settlor (3). Court^fhere') ^" Where, in 1860, a husband, through the intervention of his established a ^jfg^ obtained possession of their marriage settlement from the destroyed by trustee ; and the husband, in order to raise money upon the pro- perty comprised in it, destroyed the settlement, mortgaged part of the settled property, and wa§ proceeding to sell other parts of it ; and in 1864 the trustee filed a bill to restrain the intended sale, and prayed a declaration that the cancelled settlement should be established, and the trusts of it carried into effect ; and the husband did not deny the fact of his having destroyed the settlement, but the trustee and the wife denied many of his allegations, especially those with respect both to the circumstances under which the settlement was obtained by her from the trustee, and the precise contents of it ; and no draft or other copy of the settlement was produced to the Court, but there was the evidence of the trustee and the wife on the one side, and that of the husband and other persons who were not parties to the settlement, but who had sub- (1) Whahij V. Monjm, 2 D & Wal. .S30. (2) 18 Ves. 84. (.■i) mking v. Wlwiq>cr, 26 Bcav. 5(i8. SETTLEMENTS. 557 sequently read it, on the other, and there was also the evidence of Pabt l. Ottapter 1 1 r the solicitor who had prepared the settlement, and who had acted seot. 17. as solicitor to the husband in the mortgage transactions, and in the proposed sale of part of the settled property ; ' the Master of the Eolls (Lord Eomilly) held, that upon a full consideration of all the evidence in the case, the trustee was entitled to the relief which he sought (1). 5. Where A., before the marriage of his niece, verbally promised Bond (here) her and her intended husband that he would make a suitable pro- tary, subse- vision for her, and also wrote a letter to his niece, which was not of a'pollc^y '^^^ communicated to the intended husband, in which, referring to the under avolim- assignment of a policy of assurance which he had effected on his entitled to ,.„ T . , . -r , , ,1 ■ 1 policy-moneys. Jiie, he said: "J. urged me to make over the msurance, and get it done by an attorney, which would soon be published, but I will not, though I will do it in another way without publishing it, which is the only way it could be done safely ; and I say that in confidence — do not mention it to any one ;" and the husband swore that the marriage was had on the faith of the promise ; and after the marriage a bond was given by A. to the husband, in pur- suance of the promise, conditioned to pay a sum of money at the death of A., who afterwards assigned a policy by a voluntary deed, being at the time of the assignment, and at the time of his death, in solvent circumstances ; the Court, upon a bill by the husband for a declaration that the assignment was fraudulent and void as against the plaintiff, and that the assurance company might be restrained paying over the policy-moneys to the assignees under the voluntary deed, held, that as neither the verbal promise nor the letter could have been enforced against A., the bond was voluntary, and gave no equity to set aside the assignment of the policy (2). The Master of the Eolls said, that the promise was much too vague to support the averment that the bond given after the marriage was given in pursuance either of an antenuptial agree- ment, or in fulfilment of a representation upon the faith of which the marriage had taken place ; that the letter, which was never shewn to the plaintiff, could not be relied upon with any effect, even if the difficulty of want of mutuality were got over ; and that (1) Brandon v. Barlow, 13 L. T. (2) M'AsMe v. WGay,!;. Eq. Rep. (N. S.) 6. 447 ; 16 W. E. 1187. 558 ' LIENS- CHARGES. Part I. he should hesitate, having regard to the opinions thrown out by Sect! 17. ^^^ House of Lords in Jordan v. Money (1), to hold that any state- ment of future intentions falls at all within the doctrine of false representation ; but that it was plain that such representation must, in order to give any equitable title, have some reasonable certainty, and that a mere vague statement, which neither determined the nature nor amount of the property to be affected, nor how it was to be dealt with, was the very opposite of certain. Sect. 18. Liens — Charges. Consignee of !• If the consignee of a cargo, by agreement with the owner, term° "^i' bv ^^^^^^^ ^ ship, and expend the money necessary and proper in agreement order to enable her to fetch the cargo, he is, without any special with owner of in'- • i i -l- i i j i cargo, has a agreement to that efiect, entitled to a hen on the proceeds of such proceeds of cargo in his hands for the advance so made ; and a person who is the cargo for jjq^ ^jjg consignee has, under such circumstances, a similar lien on advances pro- ° ' perly made for the proceeds of the cargo, if he can arrest such proceeds before enabling ship i i i /■ i n • n i /r>\ » i i to fetch cargo, they come to the hands oi the skipper of the cargo (z). And where the plaintiff's had chartered nine vessels in England to fetch C. D.'s timber from Nova Scotia, under an agreement between them that they (the plaintiffs) were to be the consignees, and C. D., in breach of the contract, consigned the cargoes and forwarded the biUs of lading to other persons, but the plaintiffs arrested the produce of one of them in the hands of the consignee by means of an in- junction ; the Master of the Eolls, Sir J. Eomilly, held that the plaintiffs could maintain a bill against 0. D. and the consignee, to enforce their lien on any portion of the produce of that cargo, which could be identified in specie ; and that such lien extended to all sums properly expended by them in respect of the nine ships, and to all pecuniary losses and liabilities, but not to commission, consignees' profits, or damages for breach of the contract (3). Lien (here) 2. Where B. & Co. had agreed to build a ship for A., and to advaiiced''to enable them to proceed with the work, and before the agreement (1) 5 H. L. C. 185. (2) Young v. Ncill, 32 Beav. 529 ; 9 Jur. (N. S.) 976. (3) lb. LIENS-CHAEGES. 559 was siffned, C. had advanced money on the understanding that he Part I. ° •' 1 1- it, ChaptekIII. should have an assignment of the agreement and a hen upon the sect. 18. ship, but the agreement was cancelled ; and B. & Co. then agreed complete ship, to sell the vessel, which was in an unfinished state, to C, and that ^P^.^^^^*^ °^ the sum of £500, then already advanced by the plaintiff to B. & Co., sell ship to should be deemed and taken as part-payment of the purchase- money, and four days previously they had stopped payment, and shortly afterwards were made bankrupts ; the Lords Justices, affirm- ing a decision of Sir J. Stuart, held, that 0. was entitled to a lien upon the ship for the £500 and interest, but not extending it to further advances (1). 3. Where the plaintiff had advanced to S., who was about to speculate in sugars, £10,999, on a verbal agreement that the plain- tiff should have a lien on the sugars imported by S. from Mauri- tius and Batavia; and S. assigned his property to trustees for creditors before any sugars were bought in Batavia ; upcm a bill by the plaintiff praying a declaration that he had a lien for the sum on the cargoes of sugars sent to S. from Batavia, but omitting any mention of Mauritius sugars, and that the trustees might be restrained from parting with them or the proceeds, the Privy Council held, affirming a decree of the Supreme Court of New South Wales, that the plaintiff ^^as precluded from afterwards insisting on any claim in respect of Mauritius sugars (2) ; and that it being no part of the contract that S. should invest the moneys lent in any particular mode, and S. having, in fact, assigned his property to trustees for his creditors before the purchase, the sugars assigned from Batavia were for the benefit of the trustees ; and thus, S.'s money not being used in purchasing the sugar from Batavia, the plaintiff had no lien upon the sugars ; and that the fact of S.'s trustees allowing S. to purchase Batavian sugar on their account did not affect them with any equities in favour of the plaintiff under his agreement with S. 4. Where the plaintiff, at the suggestion of the defendant, his No lien on father-in-law, removed from a shop which he had hired, into a ^'oTeya^^ ^°' house belonging to the defendant, and which the defendant ^'^P^'^'^'^'^ ™ repairs of a (1) Swainston v. Clay, 11 W, R. 811 ; (N. S.) 92 ; 11 L. T. (N. S.) 97 ; 13 32 L. J. (Ch.) 503 ; 8 L. T. (N. S.) 563. W. R. 299. (2) Dean v. Byrnes, 2 Moo. P. C. C. 560 LIENS— CHARGES. Pabt I. promised to let him occupy rent-free, and no rent was paid for Seot. 18. ' nineteen years, and the plaintiff expended about £300 upon the house in which pi'emises, almost wholly for repairs, and the plaintiff alleged that son-in-law there was an absolute gift of the house to him; the Master of the allowed to live ° _ _ rent-free. Eolls, Sir J. Eomilly, held; that the plaintiff was not entitled to any lien in respect of the £300. The Master of the Eolls said that when a father put his son-in-law in possession of a house and • charged him no rent, there was an implied condition that the son- in-law should keep the premises in good repair (1). An ofBcer in 5. Where D., formerly an ofQcer irt the army, had verbally create a Hen agreed with M. and P. to repay a sum of money which he had mC°eys oms borrowed, and for which they had become security, out of the commission, moneys produced by the sale of his commission, if he should sell it ; and D., in anticipation of selling out, requested C. & Co., his army agents, out of the proceeds of the sale when received by them to pay certain sums of money to parties in India, which they did ; and subsequently to that date M. and P. gave the army agents notice of their agreement; Yice-Ghancellor Sir J. Stuart restrained the latter from parting with the balance in their hands, the question of lien remaining for decision at the hearing of the cause ; but the Vice- Cbancellor said, that at all events, at this stage of the proceedings, he should consider the agreement for a lien established by evidence, and that such agreement did not contravene the policy of the law (2). 6. Where a firm of merchants at Hamburg, in June 1857, directed their correspondents, a firm of merchants in Loudon, to purchase Mexican bonds, which passed by delivery upon certain terms, the bonds when purchased to be held at the disposal of the Hamburg firm ; and on the 2nd of July the London firm wrote to announce that the bonds had been purchased, and enclosing the account of the transaction, the amount of which they would reim- burse themselves on the following day ; and on the 3rd of July the London firm wrote to apprise the Hamburg firm of bills drawn upon them for the amount, by whicli they " balanced the transac- tion ;" and on the 4th of July the Hamburg firm wrote to state, that they would honour the drafts, advice of wliich they expected, (1) Millard v. Harvey, 10 Jur. (.2) J/kjs/m-. Peacoc^e, 9 Jur. (N. S.) (N. •A.) 1167 ; 13 W. E. llio. 789 ; 11 ^Y. E. 277. LIENS— CHAEaES. 561 and requested the London firm in the meanwhile to keep the bonds Pabt I. in safe custody, and to give them the numbers of the same ; and on s^ot. 18. the 6th of July the London firm wrote to state that until further order they would retain for safe custody the bonds, and giving the numbers of the bonds, and the bills were accepted by the Ham- burg firm, and at maturity were paid ; and on the 19th of Novem- ber the Hamburg firm wrote to request that the bonds might be sent to them by post, but on the same day the London firm wrote to announce that they had stopped payment, but that the Mexican bonds lying with them were unjeopardized, and the Hamburg firm afterwards stopped payment: — on a bill by the representative of the Hamburg firm, praying that the defendants might be ordered to deliver up the bonds to the plaintifis, and that in the meantime they might be restrained from selling or- parting with them. Lord Chancellor Campbell held, reversing a decision of the Master of the Eolls, that the bonds were not subject to a lien for the general balance of account between the two firms (1). 7. Where some goods (wine) had been imported with counter- Transferree feit trade-marks, and the dock-warrants transferred to A., as a ^/dock-war-'*' security for an advance made by him in ignorance of the fraud, rants of goods the Master of the Eolls, Sir J. Eomilly, held, upon a motion by feit tiade- the transferree A., fro interesse suo, that, notwithstanding an in- titied^to alien junction restraining the dock company from parting with the P^g" *° *^^j^ wine, the defendants might be at liberty to permit him to with- ^'^'s sait. draw the corks and substitute proper corks at his own expense, and thereupon, and on payment of their charges, to deliver the wine- to him (all parties had consented to his making the applica- tion in this form, without filing a bill) ; that, subject to his causing the false trade-marks to be removed, his lien was prior to the costs of the plaintifis in a suit instituted to restrain the dock company from parting with the goods; but as the transferree had been allowed to come in as if he had been a party, his Honour thought he ought to pay the costs of the motion (2). 8. The decision of Vice-Chancelior Sir L. Shadwell, recognising There is a a lien on a brewer's lease for moneys advanced to complete the brewe?™le^a purchase, created by deposit with the brewers simultaneously with ^r moneys advanced to (1) £och V. aorrissen, 30 L. J. (Ch.) 39 ; 29 L. J. (Ch.) 673. (2) Ponsardin v. Peto, 12 W. E. 198. 2 562 LIENS-CHAEGES. Part I. the creation of the lease, for which the borrower (who was shortly *^ Sect™18^''' ^^^^^ ''^® deposit discovered to be an uncertificated bankrupt) had — — - — signed a memorandum expressing that he had deposited the deed purchase, for securing, by way of equitable mortgage, the payment of the deposit at the money advanced, was afSrmed by Lord Chancellor Cottenham; ine'the fease*" ^^^ ^^ injunction granted to restrain an action by the assignees in bankruptcy of the borrower, brought by them against the brewers to recover a part of the purchase-money of the lease, was made perpetual by the Vice-Chancellor (1). 9. Where A., a merchant in Liverpool, being indebted to B., a merchant in London, on the 11th of April sent, at B.'s request, a written order to C, his agent in Bahia, to deliver to B.'s agent there all the goods belonging to A. in his (C.'s) bands ; and on the 23rd of May, A. committed an act of bankruptcy, on which a commission issued, and on account of the distance of Bahia from England the order did not reach till after the 23rd of May ; the Court held, upon a demurrer, that B. had a lien and a good title in Equity on the goods for his debt (2). An agent 10. Where a business, the property of A., was carried on with Ws^own^nTit ^^^ capital and for his profit by B., his agent, in the name of the the business latter, at a fixed salary, and A. having become bankrupt, B. filed cipai, has a his bill, stating that by reason of the use of his name he had be- property of the come liable to a heavy amount for the concern, which was solvent, exten™of his"^ notwithstanding the bankruptcy of A., and praying for an injunction liabiUties. to restrain the assignees from, taking possession of or seUing the business, or premises, or stock, and from collecting moneys due to the concern, or in any way intermeddling or interfering with the con- cern ; Lord Lyndhurst, affirming a decision of Vice-Chancellor Sir L. Shadwell, held, that B. had a lien on the property of the concern to the extent of his liabilities, and granted the injunction (3). 11. Where a remainderman sold property to a purchaser, by whom money was advanced to pay off a heavy and pressing incum- brance, the remainderman representing himself as having a right to sell, with the concurrence of the tenant for life for that purpose; (1) Meux V. Smith, 1 M. D. & De G. (2) Bum v. Carvalho, 7 Sim. 109; 396 ; 2 M. D. & De G. 789 ; H Sim. affirmed 4- 51y. & Cr. 690; S. 0. 4B. & 410 ; 2 M. D. & Do G. 315. Ad. 383. (3) Farcrqft v. Wood, 4 Russ. 487. LIENS-CHAEGES. 563 and thereupon a draft of a conveyance was prepared, to which the Part I. tenants for life and remainderman were made parties, and the sect. is. purchaser took possession ; this gave the purchaser such an equit- able title to the purchase as (having cleared- the estate from a charge to which the tenant for life was liable) to establish a lien on the property, which Equity would protect by enjoining the tenant for life from proceeding by ejectment to obtain posses- sion until the cause should be finally determined on the hearing, whatever case might be made by the answer on merits stated on the part of defendant in Equity (1). 12. An agreement that a certain judgment-debt and interest An agreement thereon should be paid to the plaintiff out of any moneys which ment^debt and might be recovered by the defendant in respect of certain claims {J^'^'^f^ ^ut'^f which he had against third parties, was held, by Vice-Chancellor moneys to be rGcovGi'sd Sir W. P. Wood, to create a valid equitable charge upon these upon certain moneys when recovered ; and the defendant having recovered the tMrfpaHies^ moneys so due to him in an action, and the same having been paid "^^^^^^^^^ into the Court of Common Pleas, the Court of Chancery, in a suit charge on tho by the judgment creditor to establish his equitable charge on the recovered, fund, granted an injunction to restrain the defendant from receiv- ing it until he should have paid the judgment-debt, and interest, and the costs of the suit (2). 13. Where C. had brought an action against P. in the Lord Mayor's Court for the recovery of a debt, and issued an attachment against B., who had in his hands funds belonging to F. ; and W. filed a bill against C, B., and P., claiming a lien on the funds, and obtained an injunction ex ^arte to restrain proceedings in the action, and whilst the injunction was in force P. became bankrupt ; the Court held, that though C. might, but for the injunction, have sued out execution long before P. became bankrupt, yet he was not en- titled to be paid otherwise than rateably with the other creditors. The Vice-Chancellor, Sir L. Shadwell, said that his opinion was, that if the creditor was, in any manner, prevented from getting execution until the debtor became bankrupt, he was not entitled to be paid otherwise than rateably with the other creditors (3). (1) Ludlow V. Orayall, 11 Price, 58. (3) Ulloch v. Bmher, 6 Sim. 300 {v. (2) Riccard v. Pricliard, 1 K. & J. the then Bankrupt Act, 6 Geo. 4, c. 16, '^'i'^- s. 108). 2 2 564 LIENS— CHAEGES. Pabt I. 14. "Where A. and B., traders, had a joint account at their Sect. 18. ' bankers, and A. had also a separate account at the same bankers ; and the bankers suspended payment, and at that time the joint account of A. and B. was indebted to the bankers, but the bankers were indebted to A. upon his separate account ; and A. and B., in pursuance of an arrangement between themselves, gave a notice to the bankers, desiring them to transfer the money standing to the separate account of A. to the joint account of A. and B. ; and the bankers omitted to comply with this order, and afterwards became bankrupt, and their assignees brought an action against A. and B. for the balance due to the bankers upon their joint account ; and A. and B. filed a bill to restrain the proceedings at law : the Master of the EoUs, Lord Langdale, held, that the bankers, after a suspen- sion of payment, could not transfer or set off one account against Bankers have another ; and that bankers have no lien upon the balance due upon no lien upon ^]^g separate account of an individual partner for a balance due to balance due '^ ^ upon separate the bank upon the joint account of the firm ; and that A. and B. account of one . ittc t t t partner, for a had no right to be relieved from the proceedings at Law, and the balance due to i .ii t • j 'iT. j. /i\ the bank upon bill was dismissed with costs (1). the joint account. An order 15. An order obtain-ed under the 61st section of the 17 & 18 17 & 18 Vict. Vict. c. 26, attaching a fund in the hands of a garnishee to answer a c. 26, attach- judgment-debt, will not displace the prior lien for costs of a soliei- iiands of gar- tor who has given notice to the garnishee. And where B., a defend- nishee, does . -/.A-ni i ^ r^ not displace ant in an action of A. v. B., was by an order of the Court made of a solicitor'^ in a suit in Equity of B. v. A., instituted in aid of the defence at notice for^hir ^^'^' o^'^^ered to pay £600 to A. and the solicitors to A. imatnedi- costs. ately served B. with notice that they claimed a lien for costs, and requested him not to part with the fund ; and afterwards M., a judgment creditor of A., obtained a judge's order, notice of which he served on B. : Vice- Chancellor Sir W. P. Wood held — on a bill filed in Equity by the solicitors of A., praying foi a declaration that the plaintiffs were entitled to a lien on the £600 for the amount of their costs and charges, for an injunc- tion to restrain the garnishees from paying the money to the judg- ment creditor, and the judgment creditor from enforcing the judge's oi-der, and for payment of their bill of costs — that their (1) Waits V. Christie'lX Beav. 546. PENSIONS. 565 claim was preferable to that acquired by M. under the judge's ^^^^^\^^ order (1). Sect. 18. ' 16. Where a town agent of a country solicitor had received ^ country papers from him belonging to his client for the purpose of his ^P^'^^j^^p^^^^g* client's business, the Court held that the country solicitor had a client's papers , . in agent's lien against the client for the amount of money due trom him to hands, for the solicitor, and from the solicitor to the agent, on account of ""P^y^^^^j^'^ business done in that cause. And where a client, after the solici- from solicitor to agent, on tor's bankruptcy, paid the agent his bill in order to obtain such account of papers, although an action had been commenced previously against c^use ; and the him by the assignees for the bill due to the solicitor, the Court ^^^^^f^^^, granted and continued an iniunction to restrain the action, on the cltor has a lieu ° _ ■' upon papers ground of the agent's lien (2). for his costs. Sect, 19. Pensions. 1. An assignment by a retired military officer of his pension for past services (with a power of attorney executed at the same time, enabling, the assignees to receive it, and a covenant in the assignment by the officer not to receive the pension), for valuable consideration (in this case to secure payment of a debt and interest), is void under the 47 Geo. 3, sess, 2, c. 25, s, 4 ; and Vice-Ohancellor Sir J. Stuart refused an injunction to restrain the officer from applying for or receiving the pension (3). But in Davis v. The Assignment of Duhe of Marlborough (4), Lord Chancellor Eldon said that a partTe^vkes pension for past services might be aliened, but that a pension for f ^^T^^^ supporting the grantee in the performance of future duties is "^^d. inalienable. And in Knight v. Bulheley (5), decided before Lloyd v. An ofBcer Cheetham (6), where the defendant, a retired officer in the army, interceptfng having received a grant " until further order " from the Crown, of ^^^ receipt of ' ms pension for a pension for wounds and injuries received in the service, had wounds, &o.. security for an (1) Sympson v. Prothero, 3 Jur. (3) Lloyd v. Cheetham, 3 Giff. 171 ; annuity. (N. S.) 711 ; 26 L. 3. (Oh.) 671. 9 W. E. 924. (2) Bmy v. ffine, 6 Price, 203 (et v. (4) 1 Sw. 79. Beames on Costs in Equity, p. 214, (5) 5 Jur. (N. S.) 817 ; 4 Jur. (N. S.) 2nd Ed.) 527 ; 27 L. J. (Oh.) .592. (6) Supra. 566 PENSIONS, Paut I. Chapter III. Sect. 19. Pensions granted by Government of India to military per- sona may be assigned as security for a debt. assigned the same to the plaintiff to secure the payment of a redeemable annuity granted to him by the defendant for valuable consideration, and had also executed a power of attorney in the form used at the War Office (namely, with a power of revocation by the grantor), empowering the defendant to receive the pension and pay himself the annuity ; and the deed also contained cove- nants by the defendant to do all necessary acts to enable the plaintiff to receive the pension j and at the foot of the form of declaration issued by the Paymaster-General, to be filled up and signed by the grantee upon applying for payment of the quarterly instalment of the pension, were these words, " This allowance can- not be assigned as security for a loan of money ;" but after two quarterly payments of the pension the defendant had, without notice to the plaintiff, revoked the power of attorney, by himself personally going to the War Office and receiving and appropriating the whole of the pension ; and in 1858 an injunction had been granted to restrain the defendant from receiving the pension, and from executing any power of attorney authorizing or permitting any other person except the plaintiff to receive it : Vice-Chancellor Sir J. Stuart, on the application of the plaintiff, ordered the defen- dant to execute a proper power of attorney for the purpose of enabling the plaintiff to receive the pension, and made the injunc- tion granted in 1858 perpetual against the defendant revoking the power or receiving the pension, or doing any act whereby the plaintiff's right to receive the pension might be intercepted; no receiver was appointed, and no order was made for costs. But in Carew v. Cooper (1), Vice-Chancellor Sir "J. Stuart held that the 46 Geo. 3, c. 69, and 47 Geo. 3, sess. 2, c. 25, s. 4, do not apply to pensions granted by the Government of India to military persons employed in India for the purpose of the Indian Government; and that, therefore, an assignment by an officer in the service of the East India Company, who, under the Transfer Act of 1852 (21 & 22 Vict. c. 106) became a colonel in the Queen's Service, and retired on his pension of £450, and an annuity of £200 per annum, and afterwards assigned the same as security for a debt, was held by the same Vice-Chancellor to be valid. And an officer in the army may create a lien upon the sale-moneys of his (1) 4 Giff. 619. PENSIONS. 567 commission (I), and can assiern the difference received by him Paet i. ^ ' Chapter II£. upon retiring on half-pay (2). Sect. 19. 2. In Lloyd v. Eagle (3), where the defendant, a retired store- Eetoed atore- keeper of the Ordnance Department of one of Her Majesty's dock- g^j^?^g^^' yards, being entitled to payment from the Treasury of a pension receiving or superannuation allowance of £155 a year, had assigned such pension after pension to the plaintiffs, the trustees of an insurance company, to hif creditors™ secure a loan of money, and default being made in payment, an ^^ insolvency. application was made by the trustees to the Paymaster-General, who refused to make any payment to them ; and afterwards the defendant became insolvent, and included the debt due upon the plaintiff's security in his schedule ; and the Commissioner of the Insolvent Debtors Court, by his order, made in presence of counsel for the plaintiff, recommended that £50 a year, part of the insol- vent's pension, should be paid by the Paymaster-General to the provisional assignee of the Insolvent Debtors Court, for the benefit of the creditors of the insolvent ; and the plaintiff declined to prove as creditor under the insolvency, but, having filed a bill, moved for and obtained an injunction to restrain the defendant from applying for, or receiving, or enabling any other person to receive, the balance of his pension left after the appropriation of the annual sum recommended by the Commissioner ; the Vice-Chancellor, Sir J. Stuart, observing, that the defendant could not be allowed to violate the contract made by him with the plaintiffs. And in Tun- stall V. Boothhy (4), where the Commissioners of Customs, by the direction of the Lords of the Treasury, had granted to A., as a compensation for the loss of an office which he had held in the Custom-house, £500 a year, payable quarterly by the Eeceiver- General of Customs ; and A. assigned the allowance to B. for a valuable consideration, and subsequently took the benefit of the Insolvent Debtors Act ; the Court (Vice-Chancellor Sir L. Shadwell and Lord Chancellor Cottenham), in a suit by B. against A. and the assignees of his estate, but to which neither the Lords of the (1) Marsh V. Peacocke, 9 Jur. (N. S.) (Oh.) 389. 789 ; 11 W. E. 277 ; et v. ante, " Liens, (4) 10 Sim. 542 ; et v. 7 Geo. 4, &c." pi. 5, p. 560. c. 57, ss. 29, 30 (An Act for the Belief (2) Price v. Lovett, 20 L. J. (N. S.) of Insolvent Debtors) ; 1 & 2 Vict. 270 ; 15 Jur. 786. o. 110, ss. 56, 57. (8) 5 Jur. (N. S.) 187; 28 L. J. 568 PENSIONS. Part I. Ohapteb III. Sect. 19. The income of a canonry of Windsor may be restrained in favour of a grantee of tlie profits as a security, the duties not being con- nected with the public service. Treasury nor the Commissioners of Customs were parties, restrained the Eeeeiver-Greneral from paying over to the defendants moneys in his hands on account of the arrears of the allowance, unless the Lords of the Treasury or the Commissioners of Customs should order the contrary; and, senible, that such compensation allow- ance, though revocable at the pleasure of the Government, is assignable. 3. Where a canon of Windsor had granted the canonry and the profits, &c., to^the plaintiffs, to secure a sum of money, and, so far as it appeared on an interlocutory application, the estates were vested in the corporation, and the canon was entitled to an aliquot share of the profits ; and there was no cure of souls, and the only duties were residence within the Castle, and attendance in the chapel twenty-one days a year ; and the defendant (the canon, Mr. M.) having made default in the payment of the interest and in keeping up the policies, the plaintiff filed his bill for the purpose of obtaining payment, and for an injunction to restrain the dean and canons from paying, and the defendant M. from receiving, the income of the canonry, and for the appointment of a receiver > the Master of the Kolls (Lord Langdale) held, upon this state of circumstances, that the security was valid, and a receiver of the profits was appointed. Lord Langdale, in his judgment, said that if it had been made out that the duty to be performed by the canon was a public duty, or in any way connected with the pubhc service, he should have thought it right to attend very seriously to that argument, because there were various cases in which pubhc duties were concerned, in which it might be against public pohcy that the income arising for the performance of those duties should be assigned ; and for this simple reason, because the public was interested, not only in the performance from time to time of the duties, but also in the fit state of preparation of the party having to perform them ; and that such was the reason in the cases of half-pay, where there was a sort of retainer, and where the pay- ments which were made to officers from time to time were the means by which they, being liable to be called into public service, were enabled to keep themselves in a state of preparation for per- forming their duties ; and that if, therefore, they were permitted to deprive themselves of their half-pay> they might be rendered PENSIONS. 569 unable promptly to enter upon their duties when called upon, and Pakt i. the public service would be thereby greatly injured ; so also, that sect. 19. ' where a pension or remuneration was given for a purpose which tended less directly to the public benefit, as, for instance^ was the case in JDavis v. The JDuke of Marlborough (1) ; that there the pension was given to the Duke of Marlborough as a memento of the gratitude of the nation, and as a reward for his distinguished public services ; and that it was there the intention of the legisla- ture that it should be kept in mind that it was for those great services it was given ; that in that case the pension was held in- alienable, because it was considered that one of the objects of giving the pension, namely, for having a perpetual memorial of national gratitude for public services, would be entirely lost ; and that so in the course of that case Lord Eldon said, in the way of illustra- tion, and in allusion to the pension of a great public officer, that it could not be aliened, because that public ofBcer must not be allowed to fall into such a situation as to make it difScult for him, in con- sequence of any pecuniary embarrassment, to maintain the dignity of his office ; that if in this case the residence in Windsor Castle and the attendance on Divine Service had been stated in the answer, or in any way shewn to be for the benefit of the public, or for the maintenance of the dignity of the Sovereign for the benefit of the public, he should have thought the case worthy of a very different consideration j but that, from all which was stated in the answer, that was not the case ; that it was a service to be performed for the benefit of the party himself, and therefore, upon the case as it then stood upon the answer, and without saying there might not be other facts which might be material to be ultimately considered, it appeared to him that the security of the plaintiffs was valid, and that he must therefore refuse the motion to discharge the order for an injunction and a receiver with costs (2). (1) 1 Sw. 74. (2) Grmfeli v. The Dean and Canons of Windsor, 2 Beav. 544. ( 570 ) Part I. Sect. 20. Stoppage in transitu. Chapter III. 1. In Straher v. Ewing (1) the Master of the Kolls (Sir J. EomilJy) held, that stoppage in transitu is an ordinary legal right, as to which a Court of Equity, unless by reason of some unusual circumstances, will not interfere. And where the plaintiffs sold some coals to the defendant, and shipped them for exportation, and a bill of lading was made out and delivered to the vendee's agent, and the vendee bought the goods, in fact, as agent of C. ; and the plaintiffs, not having received payment, instituted a suit for an injunction to restrain the vendee's agent from parting with the bill of lading ; and they supported their equity by allegations of gross fraud — namely, by alleging that the vendee was insolvent, and that the mode of obtaining the goods was a fraudulent con- trivance, by which C was to obtain satisfaction of a debt owing to him by the vendee ; but there was no proof of fraud ; the bill was dismissed with costs, the plaintiffs' remedy being by action against the purchaser for the price ; the Master of the Eolls observing that the Court had always visited, and always would visit, a charge of fraud unproved severely ; and if the rule was to be more stringent in one case than another, it was when the inter- position of the Court was rested ou the alleged fraud ; and that, even if this had been a case of stoppage in transitu, tlie remedy would have been at Law, and the Court could not have interfered unless there had been some unusual circumstance which called for its interference ; and that, hence, the charge of fraud became The enforcing necessary to sustain the bill (2). But in Schotsmans v. Lancashire stoppage in and Yorkshire Bailway Company (3), it was held that a bill in propCT^subjeot Equity will lie to enforce a right of stoppage in transitu, and that for a bill in ]j^ jg ^ proper subject for a bill in Equity. In this case, upon a bill praying, first, that the plaintiffs, or the plaintiff Schotsmans, might be declared entitled to have certain goods and flour delivered up to them or him ; or that, if not so entitled, the plaintiff Schotsmans might be declared entitled to a lien on the flour for the payment of the purchase-money, and that, in the meantime, the defendants (1) 34 Beav. 147 ; 13 W. 11. 286. (3) L. E. 2 Ch. 332 ; L. B. 1 Eq. (2) lb. 31y ; 14 W. K. 270 ; 12 Jur. (N. S.) 42. STOPPAGE IN TEANSITU. 571 might be restrained from removing or parting with the flour; and Part I. Ohapter III that, if any part of the flour had been removed out of the control of seot. 20. the defendants, directions might be given for assessing the damages in consequence thereof; the Master of the EoUs (Lord Eomilly) held, that where goods have been contracted to be sold to one, delivery of such goods by the vendor on board a ship ostensibly belonging to a firm of which the vendee is a member, and of which ship he is sole registered owner, is not a delivery of such goods to the vendee so as to exclude the vendor's right of stoppage in transitu before the delivery of the goods at the port of con- signment (here Goole), if such ship is a general ship or trader, and takes up the goods in course of one of its regular trips, even though the bills of lading signed by the captain for such goods should be made in favour of the vendee and his assigns, and one of such bills should be retained by the captain. But the Lord Chancellor (Lord Chelmsford) and Lord Justice Cairns held, re- versing the decision of the Master of the Eolls, that the delivery on board the purchaser's ship was delivery to the purchaser, so as to preclude stoppage in transitu before the delivery of the goods at tlie port of consignment. 2. Where Witt, a merchant at Bahia, shipped at Bahia a cargo of sugar by the order and at the risk of B., a sugar-refining com- pany of Glasgow, in a ship chartered by Witt ; and the charter- party provided that the ship should proceed " either direct, or via Falmouth, Cowes, or Queenstown, for orders to a port in the United Kingdom, or to a port on the Continent (between certain limits), and deliver the cargo in conformity with the bill of lading;" and the bill of lading stated that the ship was " bound for Falmouth, Cowes, or Queenstown for orders," and that the cargo was to be delivered " unto order or its assigns ; and Witt sent to B. the charterparty, the bills of lading, indorsed to B. or order, and the invoice (which stated that the. cargo was shipped " for the account and risk of B., for Falmouth, Cowes, or Queenstown, for orders and a market;") and the ship arrived at Falmouth, and the master, in pursuance of written instructions from Witt, announced its arrival to Witt's agents in London, and asked them for orders, and the agents applied to B. for instructions as to the destination of the ship ; but before any instructions were given, B. became 572 STOPPAGE IN TBANSITU. Part I. insolvent, and thereupon Witt's agents stopped the cargo ; and Seot. 20. *'i6 plaintiff, the assignee of the property of the company B., for tlie benefit of the creditors of the company B., instituted a suit against Witt and the master of the ship, for a declaration that he was entitled to the cargo, and for an injunction to restrain the defendants from discharging it, except at such place as he should direct, and from selling or disposing of it ; the Master of the EoUs (Lord EomiUy) held, that the cargo had not been constructively delivered to B., that the transitus was not over, and that the stoppage was valid (1). The tramitm 3. The transitus of goods is not ended by delivery on board a ended by ship chartered by the vendee. The right of stoppage in transitu }xi^^ °° extends only over the goods themselves and the net proceeds of stoppage in ^^ ^^q thereof, and not over the policy-moneys paid in respect of transitu only ' i. j j i r extends to the insurances effected by the vendee. And where a merchant in proceeds of Sweden contracted to sell timber to B., in England, and B. char- ^ ^' tered a ship to fetch the timber, and insured it, and the timber was damaged during the voyage, and before it arrived in England B. had failed, and the merchant in Sweden thereupon gave notice to the captain of the ship to stop the timber ; it was held, by Lord Chancellor Cairns, affirming on this point a decree of Vice-chan- cellor Sir W. P. Wood, that the merchant in Sweden was entitled, as against the other creditors of B., to the proceeds of the sale of the timber — but varying the decree as to this point, that he was not entitled to money which had been paid for the damage under the policy of assurance (2). 4. Where goods (a cargo of linseed) were shipped by A., a firm at Calcutta, to the order of B., in this country, and B. pledged the bill of lading to C, and afterwards became bankrupt ; and on the arrival in the Thames of the ship in which the goods were, C. obtained from the brokers, on payment of the freight, an overside order for the delivery of the goods, and on presenting this order to the chief officer on board the ship, the lighterman employed by C. to bring away the goods was told that he should have them as soon as they could be got at ; and in the meantime, before the ship (1) Eraser v. Witt, L. E. 7 Eq. 64 ; (Ch.) 665 ; L. R. 3 Ch. 588 ; 16 W. R. 17 W. 1!. 92 ; 19 L. T. (N. S.) 440. 1025 ; 19 L. T. (N. S.) 40 ; L. R. 4 Eq. (2) Berndtson v. Strang, 37 L. J. 481 ; v. ante, pi. 32, p. 413. NOTICE. 573 broke tulk, A., by their agents in this country, served notice upon Pakt I. the captain and agents of the ship to stop the delivery of the goods sect. 20. to any person other than themselves : Vice-Chancellor Sir W. P. Wood held— on a petition by A., the consignors of the cargo from Calcutta, and their agents in this country, for the purpose of obtaining payment of the surplus proceeds of the cargo (then standing in Court), after satisfaction of the claim which was established by the decree made at the hearing of the cause (1) in favour of the plaintiifs, the mortgagees of the bill of lading — ^that by the mere promise to deliver them to C. when they could be got at, the goods were not brought into the actual or constructive possession of B., so as to prevent A., the unpaid vendor, from exercising his right of stoppage in transitu ; and, accordingly, that A. was entitled, as against the assignees in bankruptcy of B., to the surplus proceeds of the goods, after satisfying the charge of C. (2). The question in deciding upon the consignor's right of la deciding stoppage in transitu is, not whether the voyage is at an end, but SIhot^s right whether the goods are at home, actually or constructively, in the °^amiu\\st' possession of the vendee (3). question is, whether the goods are at home, actually or constructively, in the possession of the vendee. Sect. 21. Notice. 1. Where property, either immoveable or moveable, is disposed of, with notice of a prior contract entered into by the person disposing of it for its use 'in a particular manner, the person taking it with such notice may be restrained from using it other- wise (4). Lord Justice Knight Bruce, in this case, laid down the principle thus : " It may be stated, at least as a general rule, that As a general where a man by gift or purchase acquires property from another, ^q^irer of with knowledge of a previous contract lawfully and for valu- F°P®'''y "^^^ able consideration made by him with a third person, to use and a previous employ the property for a particular purpose in a specified manner, ya?uabfe oJn- the acquirer shall not, to the material damage of the third person, made^Whe in opposition to the contract, and inconsistently with it, use and . to be taken in lieu of a judgment-debt of £3000, and the £700 was to be payable by instalments at certain times ; and if not punctually so paid, D. was to be remitted to his original rights, and to have the mortgage security also ; and the judgments were assigned, by a contemporaneous deed, to trustees for D., and (1) Hulhard v. Martin, 8 Yerg. 498 (2) Dunlap v. Stetson, 4 Mas. 349 (Amr.) (Amr.) (3) 2 Jur. 679. (4) 11 Ir. Eq. Eep. 200. 590 PENALTIES— CONDITIONS. PabtI. on punctual payment of the £700 for A. and B, A. had pre- Seot. 26. viously mortgaged his property to B. as a counter-security, and for " other debts. The instalments were not paid punctually, and the £3000 was therefore claimed in full ; but the Court held, that though it would not have interfered if the arrangement had been between him and D. only, yet, as the rights of B. were involved, the condition in default of punctual payment should be treated as a penalty, and relieved against, and that this equity could be enforced by A. as well as by B. 2. Where A filed his bill against B., C, and D., to have cer- tain promissory notes given up to be cancelled, alleging a case of fraudulent conspiracy against B., C, and D., by which they ob- tained the promissory notes, by threatening to accuse him (falsely, as it was alleged) of having cheated one of them (B.) at cai-ds, and to sue him for the penalties for that offence imder 9 Ann. c. 14, s. 15 ; and the charge of conspiracy was altogether negatived by the Defendants' answers, but it was admitted by them that the pro- missory notes were obtained from A. in lieu of the statutory penalty which A. had incurred by cheating B. at cards: Vice- Chancellor Sir L. Shadwell held, that A. was entitled to have the notes delivered up to be cancelled, and made the injunction which had been obtained against negotiating or suing on the notes perpetual. The yice-Chancellor in his judgment said, that B. in his answer did not flinch from the statement that the plaintiff was induced to give the notes in consequence of his fears being wrought upon by the representations of B. ; but B. admitted that he thought it right to punish the plaintiff for what he had done — that is, to be an arbitrator in his own cause, and determine for himself what amount of penalty the plaintiff ought to pay for his (B.'s) benefit ; and that if B. could have recovered the penalties at Law he was at liberty to do so ; but that it appeared to him (the Vice-Chancellor) then, as it did when he continued the ex parte injunction, that it would be extremely dangerous to allow a party to be a judge in his own cause, and to determine, in his own favour, what amount of penalty ought to be paid for a breach of the law committed by another person, notwithstanding he may have suffered by it (1). (1) OshaMiKfon v. simpnoii, 13 Sim. 513; 7 Jur. 736. PENALTIES-CONDITIONS. 591 3. Where a lease contained a covenant against turning up the Part I. ground " under a penalty of £5 per acre," the Court held that, seot. 26. strictly, this was a penalty, and not in the nature of liquidated damages; and that the Court might interfere by injunction to stay waste (1). 4. A Court of Equity will relieve against the penalty for not performing an unreasonable contract (2). 5. Equity may, and in many cases does, carry on the debt be- Equity in n r T in 11 many cases yond the penalty of the security, as where the party has been canies the delayed by an injunction of this Court, and the like (3) ; and ^^^ penalty. although it is said in this case that a plaintiff in Equity cannot charge the debt beyond the penalty any more than he can at Law, yet Equity will nevertheless, under circumstances, carry the debt beyond the penalty — as where a man is kept out of his money by an injunction, or is prevented from going on at Law (4). So, where an advantage is made of money, interest shall be carried beyond the penalty (5). So, where a bond is only taken as a collateral security (6), or where the recovery of the debt is delayed by the obligor (7). And in a Court of Equity a debt secured by bond may be carried beyond the penalty of the bond, if the debtor has, by injunction, restrained the creditor from proceeding at Law, and there has been no misconduct on the part of the creditor (8). Tlie Lord Chancellor stated, that in his opinion the plaintiff 's demand was not to be limited by the amount of the penalties of the bond ; for he had always considered, on the authority of Duval v. Terry (9), that a party who had been restrained from proceeding at Law, while the debt was under the penalty, had a right in a Court of Equity to principal and interest beyond the penalty of the bond. 6. Where a mortgage is made with interest at £5 per cent., pro- vided that if the interest be not paid within two months after due, then to pay £5 10s., this is in the nature of a penalty, and (1) Carden v. Butler, Hay & J. 112. Bro. P. C. 251. (2) Thomson v. Earcomi, 1 Bro, (6) Eirwane v. Blahe, 2 Bro. P. C. P. C. 193. 333. (3) Hale v. Thomas, 1 Vern. 350, (7) Pulteney v. Warren, 6 Ves. Jim. 2nd Ed. ; 2 Ch. Ca. 182, 186. 92 ; et v. Clarke v. Seton, ib. 411. (4) Duval V. Terry, Show. P. 0. 15. (8) Grant v. Grant, 3 Russ. 598. (5) Lord Dunsany v. Plunkett, 2 (9) Show. P. 0. 15. 592 PENALTIES— CONDITIONS. Part I. the Court will relieve against it; otherwise, if £5 10s. per cent, be Sect. 26. ' reserved originally, and to be lessened to £5 per cent, if duly ~ paid within two months after due (1) ; and this distinction is recognised in Holies v. Wyse(2,), where, on a mortgage at £5 per cent, interest, but if not punctually paid then to answer interest at £6 per cent, per annum, the Court looked upon the reservation of £6 per cent, but as a nomine poenas, to oblige the defendant to A reservation the more punctual payment. But the reservation of a right to payment of ° have full payment of money actually due on an existing contract, money due on gj^ould there be a failure to pay a smaller sum on a day certain, an existing ^ *' j > contract upon will not be treated as a penalty, nor is it a penalty, or forfeiture, failure to pay /.ii-i • ^ a smaller sum, or anything of the kmd, but simply a provision that, upon the treated as a terms upon which the indulgence is granted not being complied penalty. -with, the original rights shall be preserved, and that the creditor shall be entitled to avail himself of those rights. Therefore, where a certain sum of money is due, and the creditor enters into arrangements with his debtor to take a lesser sum, provided that sum is secured in a certain way, and paid at a certain day ; but if any of the stipulations of the arrangement are not performed as agreed upon, the creditor is to be entitled to recover the whole of the original debt ; such remitter to his original rights does not constitute a penalty, and Equity will not interfere to prevent its observance. And where H. was indebted to T. and S. in three different sums of money, which were the subjects of suits in Chancery ; and in the first and third of these suits the sums had been ascertained, but no final decree had been made respecting them ; and in the second suit there had been a final decree, and H. wished for time and facilities to be afforded him for payment of these debts, and T. and S. consented ; and deeds were executed, by which it was arranged that H. should admit the amount of the debts claimed in the first and third suits, and should not use his power to appeal against the decree in the second suit ; that he should give a first mortgage on his real estate as a security ; and that he should pay certain amounts on certain days ; and on these conditions T. and S. were to accept smaller sums in satisfaction, (1) Strode v. Parker, 2 Vera. 316, (2) 2 Vern. 289; et vide Nicholh \ . 2nd Ed. ; et vide Thompson y . Eudson , Maynard, 3 Atk. 519; Bona/ons v. L, R. 4 II. L. 15 ; et S. C, infra. Sybot, 3 Burr. 1374. DAMAGES, 593 and the deeds contained provisoes, which (in different forms of Pakt I. Chapter IXT language) expressly reserved to T. and S. the right, if any of the Seot. 26. stipulations in the deeds were violated, to enforce payment of the original amounts found and admitted to be due : — the House of Lords held, upon an appeal against an order of the Master of the Eolls, Lord Eomilly, which had been affirmed on appeal by Lord Chancellor Chelmsford {diss. Lord Justice Turner), that this reservation of the right to enforce existing debts on nonpayment of the smaller and covenanted amounts was not a penalty against which Equity would grant relief (1). Sect. 27. Damages. 1. In a case for an injunction which, from circumstances arising after the bill was filed, could not be granted, the Court, under the 21 & 22 Vict. c. 27, s. 2 (Lord Cairns' Act), awarded damages, though not specifically prayed for by the bill (2). And a plaintiff, though barred by acquiescence or otherwise from his remedy by injunction, may obtain damages under this statute, and that even though no action at law would be maintainable by the plaintiff (3). And when the Court has jurisdiction to decree the specific per- formance of an agreement, but from circumstances is unable to decree specific performance of certain parts of it, which are merely incidents to the agreement, and do not affect its substance, it has power to provide for them otherwise than by directing that they be specifically carried into execution, and notably by assess- ing the damages which, by reason of their non-performance, the plaintiff may have sustained (4). And although relief by award of damages, under the 21 & 22 Vict. c. 27, is in the nature of con- sequential relief, yet the Court has jurisdiction to grant it, not- withstanding that it may not be in a position (in this case because the plaintiff had obtained specific performance pending the suit) at the hearing to grant an injunction or a specific performance, on (1) Thompson v. Hudson, L. R. (3) Eastioood v. Lever, 33 L. J. 4 H. L. 1 ; 38 L. J. (Oh.) 431 ; L. R. (Oh.) 355. 2 Bq. 612 ; L. B. 2 Ch. 255. (4) Middleton v. Qreenwood,103\\v. (2) Catton v. Wyld, 32 Beav. 266. (N. S.) 350; 10 L. T. (N. S.) 149. 2 Q 594 DAMAGES. Paet I. which the right to damages depends (1) ; but the Vice-Chancellor Sect. 27. ' (Sir W. P. Wood) said, that this was a simple every-day question, which Courts of Common Law were in the constant habit of decid- ing, and was not one of that serious character where motions for a new trial might be expected, so as to render it desirable that the same Court should have the entire cognizance of the matter at issue ; and he directed issues to be tried before a special jury as to the damages (if any) sustained (2). But the Court will not award damages in addition to specific performance under this statute (s. 2), on account of the simple non-performance of a contract where no special damage can be shewn to have arisen from the delay (3). 2. The Court has jurisdiction under the 21 & 22 Vict, c 27 (tliough possibly not under the 25 & 26 Vict. c. 42), to assess the damages occasioned to a dwelling-house by an obstruction of light and air (4). 3. In Tuck V. Silver (5), Vice-Chancellor Sir W. P. Wood declared, that since £he 21 & 22 Vict. c. 27, s. 2, empowering the Court to award damages in cases in which it has jurisdiction to entertain an application for an injunction against the commission of any wrong- ful act ; it was more important than ever, now that the Legis- lature had given to this Court the power to do complete justice, so far as the plaintiff was concerned, by awarding him damages in suits of this description {i. e., to restrain infringement of patents), to require the plaintiff, when obtaining an interim injunction agaiinst the alleged infringement of a patent, to give an undertaking to abide by any order the Court might make as to damages. 4. Under Lord Cairns' Act (21 & 22 Vict. c. 27), it is discre- tionary with the Court whether it v.i\\ award damages, or leave the plaintiff to obtain them at Law. Under Sir J. Bolt's Act (25 & 26 Vict. c. 42), where the plaintiff has at the time of filing his bill no ground for equitable relief, the suit is improperly brought into Equity within the meaning of the Act, and the Court will leave the question of damages to a Court of Law (6). (1) Cory V. Thames Ironwork and (4) Johnson v. Wyatt, 12 W. E. 234. Shipbuilding Company, 11 "W. R. 589. (5) Job. 218. (2) lb. (6) Burell v. Pritchard, L. R. 1 Ch. (3) Chinnock v. Ely (Marchiont ss), 244 ; 14 W. R. 212 ; Murfiii v. Douylas, 13 W. R. 178. 16 W. R. 268, Ir. R. DAMAGES. 595 5. When there has been an agreement — a direct and positive Part I. engagement — by the defendant, which goes to the root of the whole seot! 27. agreement, and the defendant has failed to perform his part, and the plaintiff has also failed to perform bis part, the Court will restrain the defendant from bringing an action against tbe plaintiff for non-performance of his part until be (tbe defendant) shall have performed bis part ; and that, although the Court bad no jurisdic- tion to compel tbe defendant to specifically perform bis part ; though it may be doubtful whether the 21 & 22 Vict. c. 27, s. 2— which enacts, that " in all cases in which tbe Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, or against tbe commission or continuance of any wrongful act, or for tbe specific performance of any covenant, contract, or agreement, it sball be lawful for tbe same Court, if it shall think fit, to award damages to tbe party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as tbe Court shall direct " — would apply to a case of this kind, so as to enable this Court to award damages (1). But tbe Court, having a discretion, directed in this case the damages to be assessed by a jury — i. e., at Common Law (2). 6. Where at the time of filing a bill tbe plaintiffs were entitled to an injunction against a railway company to restrain them from using their land, damages were awarded to them at tbe hearing, although no injunction was in fact obtained, and tbe plaintiffs' interest in the land bad meanwhile determined (3). 7. Where, in a suit for specific performance and damages, an issue was directed to be tried at Common Law to ascertain tbe amount of damages, and the plaintiff set up a claim for damages based on special user, but this claim was disallowed, and only a claim for damages based on common user allowed; on tbe cause being brought back into Chancery, tbe plaintiff was disallowed tbe extra costs occasioned by the larger claim (4). (1) Acraman v. Price, Davies v. South Coast Bailw. Co,37h.J. (Ch.) Frice, 18 W. B. 540. 26 ; et v. Betts v. Gallais, ante, p. 265. (2) lb. (4) Oory v. Thames Ironworks and (3) M'Bae v. London, Brighton, and Shipbuilding Company, 16 W. E. 475. 2 Q 2 ( 596 ) Part I. Sect. 28. Powers. Chaptee III. 1. Wliere A. made two of his daughters his executrixes, and directed them to distribute a sum of £400, and also the residue of his personal estate, among themselves and their brothers and sisters, according to their needs and necessities, as they in their discretion should think fit ; Lord Keeper Wright and the House of Lords restrained the exercise of this power, by decreeing a double share to the eldest son and heir, looking upon him as a necessitous per- son (1). However, the exercise by the Court of discretionary powers given to donees is now disclaimed by the Court, and such powers do not devolve upon the Court upon the non-execution of the powers by the donees (2). 2. Where a person being seised of a life estate in lands, and being indebted in various sums ■ of money secured by his bonds, filed a bill to restrain proceedings at Law on them, on account of usury, and then entered into a consent in the cause with his creditors, whereby it was agreed that a certain sum should be found due on foot of those bonds, and the consent was embodied in the Master's report, and a decree pronounced declaring that the said sum was due and well charged on the lands in the pleadings mentioned ; the Court held that the consent was such an act or contract on the part of the debtor as, when acted on and embodied in the decree of the Court, deprived him of the right of executing a power to charge the life estate with portions for younger children, so as to affect the rights of the creditors under the decree which had attached upon his life estate (3). A party 3. Where a party comes into Equity for an injunction against EqiiUy to ° proceedings at Law founded on the defective execution of a power, ceedfngs''at' ^^ ®'^°"^*^ ^^^^^ ^^ ^^^ ^'^^^ *^^^* the power is badly executed at Law, founded Law. The Master of the Eolls said : " The plaintiffs call on this on defeotiye ^v . . i i i ^ • , execution of Oourt to supply the detect m the execution of the power, or to admit tharthe I'^form and amend the deed of the 12th of May, 1783. A Court exeoutcd'at''''' of Equity will, in favour of persons standing in the situation of the (1) WarhurtonY.Warhurton,2Yem. 859; Ahxander v. Alexander, 2 Ves. 420 ; 4 Bro. P. C. 1. Sen. 640 ; Keates r. Burton, 14 Ves. 437 ; (2) Maddison v. Andrew, 1 Ves. Sen. v. Sugden on Powers, p. 174, 7tli Ed. 57, 60 ; Kemp v. Kemp, 5 Ves. 849, (3) Piers v. Tinte, 1 D. & Wal. 279. TEUSTS-CONEIDENCE. 597 plaintiffs, supply a defect in the execution of a power which consists Part I. r 5 rr J r Chapter III. in the want of some circumstance required in the manner of execu- seot. 28. tion — as the want of a seal, or of a sufficient number of witnesses, or where it has been exercised by a deed instead of a will. But here it is, at Law, decided that there was no power in the trustees to sell the land without the growing timber, and there is no execu- tion by the trustees of the power to sell the land with the growing timber ; and I find no authority which applies to this case " (1). Sect, 29. Trusts — Confidence. 1. Where, in 1821, a chapel was vested in trustees for Particular Baptists ; and in 1848 a dissension took place, and part of the con- gregation seceded and went to another chapel ; and in 1860 the surviving trustees were induced, not knowing the real object, to appoint new trustees and vest the property in them ; and immediately after the new trustees, wjio were attached to the seceding congre- gation, commenced an action of ejectment to obtain possession of the chapel: upon a bill by the surviving trustees and two deacons of the chapel, the latter suing ■' on behalf of themselves and all other members of the church at A.," the first-mentioned chapel, the Court set aside the appointment, and restrained the action, with costs, and ordered new trustees to be appointed in chambers (2). 2. Where M., the manager of E.'s business, was allowed by him A party who to send out bills to the customers in his (M.'s) own name alone, and the outward^ M. afterwards locked E. out of the business premises, and E. several ™sigma of •■■ ownership by times had to break the lock to get in, and M. made an assignment virtue of a of the premises and stock-in-trade to P. ; and P. advertised them restrained for sale, and E. filed a bill against M. and P., to restrain the exclu- Idv"nt^ge^ sion and the sale ; a demurrer by the defendants, for want of equity, tl^^reof. was overruled with costs. The Vice- Chancellor, Sir W. P. Wood, said that M. had acquired the outward insignia of ownership by virtue of a trust, and he took advantage of that to lock out the (1) Cockerell v. Cholmeley, 3 Euss. (2) Newsome v. Flowers, 30 Beav. 565 ; 1 Russ. & My. 418 ; Taml. 435 ; 461. CI. & V. CO ; 6 Bli. (N. S.) 120. 598 TEUSTS-CONFIDENOB. Pabt I. plaintiff, to assign his property to another, and to put it up for Sect. 2a. ' sale (1). 3. Where real estate had been conveyed to H. upon trust, and he was directed immediately, or as soon as conveniently might be, after the death of a tenant for life, to sell the same " for the most money and best price that could be gotten, either by public auction or by private contract ;" and on the death of the tenant for lifoj there being a difficulty as to the title, H., witl^ the concurrence of the eestuis que trust, offered the estate to P. by private contract for £6000 ; and he subsequently entered into a contract for pur- chase, but before the offer was accepted the plaintiffs became the purchasers of the share of one of the eestuis que trust, and the offer made to P. was immediately countermanded, and notice given to him of the want of concurrence on the part of such cestvds que trust ; but P. on the following day accepted the offer ; and H. did not put the property up by public competition, or make further inquiry for a purchaser, but entered into an agreement with P. to sell the property to him for £6000 ; and the plaintiffs thereupon filed a bill for the purpose of having the agreement set aside, and to restrain H. from conveying the estate, and stated their willing- ness to give more than £6000 for the property, and subsequently stated that they would have given £7000 ; and H., supporting the sale to P., alleged that the sale to the plaintiffs by one of the eestuis que trust was of doubtful validity, and that all the other eestuis que trust were desirous of completing the contract with P ; the Court below (Vice-Chancellor Sir J. Stuart) held that the agreement for sale by H. was not binding ; but Lord Chancellor Campbell reversed this decision, on the ground that he did not consider H. had mis- conducted himself as a trustee in entering into the contract ; but that the question whether P. was entitled to damages for the breach of the agreement was not for an Equity judge, but for a jury, under the direction of a Common Law judge (2). 4. A prayer for an injunction to restrain a ti-ustee from selling, and to have a new trustee appointed in his place, involves relief, although nothing substantial is asked against him (3). (1) Eachus V. Moss, U W. 1!. 3'J7. (3) March v. Keith, 30 L. J. (Ch.) (12) Harper v. Uuyef, 7 Jur. (N. S.) VXl. 245; 8 W. K. 000; '.) W. E. 501. TRUSTS— CONFIDENCE. 599 5. Where trustees under a marriage settlement, having no power Part I. • Till T 1 111 -1,1. i Chapter III. to invest in land, had purchased copyholds with the trust-money, sbot. 29. the husband and wife agreeing that the trustees should have power to sell, and indemnify themselves ; and the trustees were also charged with other breaches of trust ; and the surviving trustee proceeded to sell the copyholds, which were worth much more than the original purchase-money, and claimed to indemnify him- self out of the surplus; Yice-Chancellor Sir E. T. Kindersley restrained him from selling until it was ascertained when it would be for the benefit of the persons interested, not sui juris, that the sale should take place ; and the Vice-Chancellor questioned whether he would be allowed so to indemnify himself (1). 6. In Yovatt v. Winyard (2) Lord Chancellor Eldon granted an Assistant or injunction to restrain a defendant, who had, as alleged, as assistant surreptitiously or journeyman, surreptitiously copied from a book the recipes of recies^for the plaintiff, from making use of, or communicating, certain recipes medicines, for veterinary medicines, and from printing and publishing direc- printing or tions for administering them, on the ground that there had been a them"^ ^'™^ breach of trust and confidence — the injunction not to extend to animals then under a course. 7. It is a principle of this Court, that a trustee shall not be per- A trustee will mitted to use the powers which the trust may confer upon him at mitted to^use Law except for the legitimate purposes of his trust ; and therefore a tr^^'g^^f^ *'^^ demurrer for want of equity cannot be sustained to a bill seeking '°v°^ l"™ at . ,./. n- 11 11 t . . m Law except to restrain a trustee irom so doing, although the plaintiff may for the pur- have a remedy at Law (3). In this case the equity stated in the t^st ° "^ plaintiff's bill was, that he (the plaintiff) indorsed the bill of ex- change to one L. without consideration, in order that L. might recover upon the bill against Lyon, the acceptor, for the plain- tiff's use, and that L. had, in like manner, indorsed the bill to the defendant Strutt without consideration for the same purpose ; and the Vice-Chancellor, Sir L. Shadwell, said that, according to the statements in the bill, therefore, Strutt was a trustee of the bill for the plaintiff, and that upon this state of the case alone it could not be disputed that the plaintiff would be entitled to the relief he prayed by the bill— *. e., the delivery up of the bill, (1) Wiles V, Oresham, 17 Jur. 779. (2) 1 Jac. & W. 394. (3) Balls V. Strutt, 1 Hare, 146. 600 TEUSTS- CONFIDENCE. Pabt I. Chapter III. Sect. 29. Tlie Court will not enforce a voltintary trust-deed in favour of creditora against the debtors, and they may vai-y tlie trusts of such a d ed. and an injunction to restrain an action on the bill by Strutt against the plaintiff and the negotiation of the bill. 8. The Privy Council, on an appeal from Jamaica, dissolved an injunction obtained by the cestui que trust of a moiety of the pro- duce of certain plantations and estates there, prohibiting the attorney and manager, who was also one of the trustees for the same moiety, from shipping or consigning any portion of the pro- duce save as such cestui que trust should direct, on the grounds (as the Privy Council observed) stated in the argument for the appellant {i. e., the attorney and manager). These were, amongst others, that by the trust of a marriage settlement of the respondent the produce, &c., of a moiety of the estate were payable to her separate use, and that this imposed on the trustees (the appellants) the duty of converting the produce and paying the surplus profits of the moiety to the respondent ; that the trusts (of the settlement) did not permit a delivery of the produce to the respondent or to the person whom she should appoint ; that as a trustee the appel- lant had a lien on the produce of the undivided moiety for the price of supplies and costs of management, &c. of that portion, and the tenant in common of the other moiety (who was not made a party to the suit), a lien for the price of supplies, &c., and of upholding the estates, and until those liens were discharged the respondent had no right to any part of the crops (1). 9. Where there was a trust-deed conveying lands to trustees for the payment of the creditors of two debtors, no creditor being a party, nor was the deed made by agreement with any creditor, neither was there any release or other consideration moving from any of the creditors, and the debtors afterwards executed other deeds varying the trusts of the first ; a motion for an injunction by a creditor under the first deed, who had filed a bill to restrain the trustees from executing the trusts of the subsequent deeds till they had raised money sufficient to answer the first trusts, was re- fused by Lord Chancellor Eldon, on the ground that, the trust being voluntary, the Court would not enforce it against the debtors, who might vary it as they pleased (2). (1) Israeli v. Hodon, 2 Moo. P. C. C. 43. (a) Wallwyh y, Cvuiis, 3 SIcr. 707. See 3 Sim. 1, n., and S. C. more fully reported, 3 Sim. li ; v. Garrard v. L'tiuhrdalt: {Lord), o Suu. 1, TEUSTS-COMFIDENCE. 601 10. Where by marriage articles the household goods and plate Paet I. of the wife were assigned to trustees, the husband to have the use g^^_ 29. of them for his life only, and afterwards to the wife, her executors and administrators ; but if the husband survived, then the abso- lute property to be to him ; and A. having got judgment against the husband, took the goods in execution, and the wife's friends gave security to the sheriff, who returned nulla lona ; whereupon A. brought an action against the sheriff, and recovered, and after- wards the same goods were taken in execution by B., another creditor of the husband, and the sheriff, on the like security given him by the wife's friends, returned nulla bona ; whereupon B. also brought an action and recovered, and the wife's trustees filed a bill for relief ; the bill was dismissed with costs, it being all at Law in whom was the property of the goods (1). The Court said, that there being an assignment made of the goods in question to trustees, the matter was purely, at Law, whether such assignment well vests the property in the trustees, and whether fraudulent as against a creditor or not ; and that that having been already tried, there was no room for Equity to interpose ; and that if this Court should re- lieve the plaintiff, it must declare that not to be fraudulent in Equity which had been found to be so in Law ; and that as to that part of the case where two several creditors have recovered the value of the selfsame goods, it was the folly of the party not to provide better for himself; for although when a man recovers against another in trover, there the property of the goods vests in the defendant against whom the damages were recovered (2), yet where the sheriff returns nuUa bona, and there is a recovery against him for his false return, that vests no property of the goods in him ; but they remain in the party, and are liable to any subsequent execution for his debt (3). 11. In V. Hancock (4), Lord Chancellor Eldon said, that though it was true that where an infant conveyed as a trustee, within the statute 7 Ann. c. 19 (the then statute relating to the (1) Underwood v. Mordant, 2 Vern. goods in execution, he may have trover 238, 2nd Ed. or trespass against him who takes them (2) Putt V. Eawsierne, Pollex, 640, away : Wilhraham v. Snow, 2 Saund. 641 ; Adams v. Broughton, 2 Str. 1078. Hep. 46. (u) But where the sheriff has seized (4) 17 Ves. 384. 602 TRUSTS-CONFIDENCE. Part I. conveyances of infant trustees), not being so, he would not be Sbot. 29. ' bound by his conveyance under such an order ; yet if it were a case in which he would be bound to convey, when of age, his con- veyance being voidable only during his infancy, and until avoided passing the legal estate, and no one having the right to elect for him whether it should be void or not, he would, when he became adult, be in such a situation that if he sought at Law to avoid his deed a Court of Equity would prevent him. 12. Where in the course of proceedings between A. and B. in the King's Bench a reference had been directed to the Master of that Court, in which A. was to give credit for all sums of money received by him for or on account of B. ; and in taking that account the Master had refused to charge A. with a sum received by him in payment of a debt due to B., which debt B. had assigned to C. without consideration, and upon a trust subsequently declared for him (B.) ; and the Court of King's Bench refused to direct the Master to review his allocatur; it was held, upon demurrer, that B. might maintain a bill in Equity against A. and C, praying a declaration that the assignment of the debt to C. was merely in trust for B., an account against A., and an injunction to stay proceedings on the allocatur of the Master. The Lord Chancellor, Lord Eldon, said : " The bill stated that the Master of King's Bench refused to try the equitable right, and that the Court (of King's Bench) concurred in the opinion upon which he acted, and that that opinion was, that a Court of Law could not try the plaintiff's equitable right," and for this reason the demurrer for want of equity was overruled (1). 13. Where A. and B., partners, were indebted to C. and D., the plaintiffs, and A., by letter, proposed to assign a claim which A. and B. had upon the estates of P. ; and certain properties of P. having been sold under a decree, were purchased by A. in his own name, but, as he alleged in letters to C, in trust for C. and D. ; and A., having shortly afterwards committed an act of bankruptcy, exe- cuted deeds declaring that he held in trust for C. and D. ; and his assignee having obtained a judgment in ejectment against part- of the premises, a bill was filed praying that he should be rest-rained from executing a habere ; that he should be declared a trustee for (I) Fdiijuliursmi v. I'llche); " Russ, V-1. TEUSTS— CONFIDENCE. 603 the plaintiff as to all the premises, and that he should be directed Part I. to convey to them : the Court, in Ireland, held that the trust was *^°&ect^ 29^^' clearly established, and that the plaintiffs were entitled to the con- veyance sought (1). 14. Some of the clauses which are frequently introduced into the deeds of trust for sale are of such a kind that a Court of Equity will not act upon them where the trustee for sale is also the creditor for whose benefit the trust is created (2). 15. The Court will not restrain trustees for sale from completing a sale on the ground that they cannot shew a good title (3). 16. A trustee is not answerable for an innocent mistake, from A trustee is which he derives no advantage ; and a Court of Equity will grant able for an a perpetual injunction, to prevent amy proceedings at Law grounded tak^''"* ™^" on such mistake (4). 17. Where a trustee allowed one of his eestuis que trust to have Cestui que the trust f and, with a view to its investment in foreign funds, and stained" pro- the cestui que trust went to America and invested it in his own needing to get ■^ _ a lund, pro- name, and afterwards sold out a part, and, remitting the money to duced from a agents in London, came home, and the trustee impounded the securities pur- money so remitted in the Lord Mayor's Court, this Court granted thearigTnai an injunction restraining proceedings on the part of the cestui que *™^^ fund out trust to get it out (5). Mayor's 18. Trustees to preserve contingent remainders may, for the benefit of the contingent remainders, bring a bill to stay waste in the tenant for life (6). 19. Unless there is a distinct admission, or circumstances proved, uniegg there which raise the presumption that certain moneys are trust-moneys, ^? ^^ adnus- i: ^ .< •> ' sion or a pre- the Court will not interfere by injunction to order such moneys to sumption that be paid into Court before .the hearing of the cause, where there is are trust a doubtful case to be tried at such hearing (7). ComTwiu not order such moneys to be paid into Court before the hearing. 20. Equity will enjoin a party holding land in trust from parting Equity will with his control over it (8). So, where a trustee in the United HI of\aad"^" (1) Johnson v. Perrin, Hayes, 322. (Ch.) 27. (2) Bohertsv.£ozen,SL. J .(Ch.)ll3. (6) Perrot v. Perroi, 3 Atk. 95. (3) lb. (7) Bank of Turkey v. Ottoman (4) Orookslianks v. Turner, 7 Bro. Gomxjany, 14 W. B. 819. P. 0. 255. (8) Hun v. Freeman, 1 Ham. 490 (5) Hopkins V. Nciuton, 9 L. J. (Anir.) 604 TEU8TS— CONFIDENCE. Pakt I. States, appointed by deed of A. to collect money and pay all the Sect. 29. " debts of A., resides in a distant State there, and a bill there by a partin" with *'''^<^'to'^ alleges that he is about to remove the trust funds beyond the land, and the reach of the Court, an injunction is proper to restrain such from removing i / v ^m . i i i a trust fund removal (1). So, where cestuis que trust were empowered by the reach of the trust-deed to change the investment of the trust fund, they were Court. enjoined from making any change in such investment, or inter- fering with the income or profits, without the sanction of the Court on notice to their creditors (2). 21. A trustee may be enjoined from submitting to arbitration a question in which the cestuis que trust alone are interested, without their consent (3). Ejectment for 22. An ejectment for land may sometimes be restrained upon chased'by a t^® ground of equitable estoppel or implied trust. Thus, where pa,rtyma ^q route of a racewav of an incorporated company was located flduciary posi- •' ^ r j tion, re- over certain lots of A., and the company appointed a committee to negotiate with the landowners for the purchase of the land over which the route was located ; and B. was president and also an acting-manager of the company, and offered to negotiate for the committee the purchase of A.'s land for the company, and the committee thereupon entrusted the negotiation to B. ; and B. bought A.'s lots for 50 dollars a lot, and took a deed in his own name, the deed stating the amount paid as 100 dollars per lot; and the company offered B. what he had paid for the lots, and went on and constructed their raceway over the land, B. was perpetually Ejectment by enjoined from bringing ejectment to recover possession (4). In standing by, the same caso B. owned another lot over which the raceway was upon posses- located and constructed, and was president and actinff-manager of sion being ' r so taken, &c., the company at the time of such location and construction, and and being in a , . . , ..,,.. fiduciary posi- made no objection, but was active m the direction and proceedings strained. o^ the company in locating and constructing the raceway on and over the lot : he was perpetually enjoined from bringing ejectment to recover possession, and an issue was ordered to ascertain the value of the lots (5). (1) Symonsy.Eeid,5Soiies,^ti.Z21 (S) Cnim y. Moore's, &c.,lWC&A (Amr.) 436 (Amr.) (2) North American Coal Company (4) Trenton, &c., v. McKelway, 4 V. Dyett, 1 Paige, 1 (Amr.) Halst. Ch. 84 (Amr.) (5) lb. ( 605 ) Sect. 30. Charities. ' Paet i. Chapter III. 1. Upon a bill filed against the municipal corporation of London, by the donation governors of St. Thomas's Hospital, to restrain them from acting upon a retainer which had been issued by them in the name and under the seal of the Chartered Hospital Cor- poration, constituting a person to be the attorney of the governors for the purpose of carrying into execution the powers vested in the governors by an Act of 1862; and also to restrain the municipal corporation from affixing the hospital seal to any document re- lating to the hospital without the consent of the donation governors : the Lord Chancellor held, upon a consideration of the charters of Edward VI., and statutes of 1782 and 1862, and articles of agree- ment, that the whole of the administration, management, and conduct of the charity, St. Thomas's Hospital, including the right of fixing upon and contracting for the site of a new hospital, was vested in the governors, called donation governors, and that the Chartered Hospital Corporation — i.e., the mayor, citizens, and commons of London — was not at liberty to use the hospital seal save at the instance and upon the application of the donation governors ; and also that the word " governors " in the Act of 1862 meant the donation governors, and not the Chartered Hos- pital Corporation ; but that, as a question of difficulty had arisen upon the construction of the Act of 1862, the municipal corpora- tion was justified in sealing a retainer in the name of the Chartered Hospital Corporation for the purpose of trying the question (1). 2. Upon a motion to restrain the governors of the Foundling Hospital from proceeding in the execution of certain contracts for letting upon building leases, and from themselves building, the This Court Court held, that nothing was better established than that this tain a general Court does not entertain a general jurisdiction, or regulate or Jj"™'^'^'^'j.™jgg control charities established by charter, unless the governors -have established by ° charter, unless also the management of the revenues ; then this Court does assume the governors a jurisdiction of necessity, so far as they are considered trustees of ment of the revenue, and abuse their trust ; and the Foundling Hospital is '^^^^'^"^^• (1) St. Thomas's Hospital {Governors') v. Corporation of London, 11 L. T. (NT. S.) 520. eOG CHARITIES. Part I. an institution of this kind ; therefore, on motion, an injunction to Chapter III. . j< j i. i Seot. 30. restrain the governors from building round it was reiused, a breach of trust, or probability of it, not being made out ; and it was also held, that it was not in the nature of waste to turn meadow-land into buildings, unless clearly injurious (I). 3. Where, by the P. Paving Act, 1825, certain commissioners were constituted, with powers of making rates, and for the pur- poses therein specified, and it was directed that the sums so to be raised should be applied for certain purposes there enumerated, and no other purpose whatever, and the costs of other applications to Parliament were not among the enumerated objects ; and by the Municipal Eeform Act, 1836, certain duties were taken from the charge of the commissioners and imposed upon the corpora- Commis- tion ; and in December, 1852, the commissioners gave notice of sioners (here) .. . t.t » a restrained their intention to apply to Parliament for a new Act, and pro- rates^totlie ceeded to apply their moneys raised under the Act to the costs of costs of an Q^^^ application, and some of the ratepayers, as relators, filed an application to ^^ r j ' ' Parliament, information to restrain this : Vice-Chancellor Sir W. P. Wood held, on an interlocutory motion for an injunction, that this was an improper application of the moneys raised under the Act of 1825, Paving and and that the Attorney-General had a right to sue, the purpose of general, and paving, lighting, &c., being general, and not confined to the use therafepayera, o^ the ratepayers (the relators) alone, and that the delay from and therefore December to April was not sufficient to deprive the plaintiff of General has a the right to an injunction (2). 4. The Court, upon an information praying a scheme, the removal of the trustees, on the ground that they were disqualified, and an injunction to restrain the trustees from appointing a new school- master, and from dealing with the property — having inferred, not only from the time the deed of endowment was executed, when there was very little dissent, but from repeated references to the parish church in the deed of endowment, that a school founded in 1601 was a Church of England school — held, that the trustees, and the schoolmaster also, if possible, ought to be members of that church, but that the instruction was open to scliolars of every religious deno- mination ; but the Court, though holding that a trustee had been (1) Att.-Oen.w. Governors of Found- (2) Att.-Geii. v. Eastlake, 17 Jur. ling Hospital, 2 Ves. Jnn. 42. 801. CHAEITIES. 607 originally improperly appointed, declined to remove him, there being Paet I. a great difference between appointing trustees in the first instance, seot. so. and removing them when once appointed. And residence within a parish being (here) a necessary qualification of trustees on their appointment, the Court held, that their removal out of the parish after their appointment, to such a distance as to make it impossible to attend to their duties, would be a vacating of their office (1). 5. Where the revenues of a charity grammar-school had in- creased tenfold, the Court, on a vacancy, restrained the appoint- ment of a new master until something had been settled as to a new scheme ; but subsequently, liberty was given to appoint a new master, he taking his office subject to any future alterations to be directed by the Court (2). 6. The master of a grammar-school appointed by the dean and Master of chapter of a cathedral church, and which grammar-school was, by fchTOTnot the statutes imposed by the founder, directed to be established O'^^f) a- cestui QU6 ZVUSbf Out and maintained from the endowments of such church, which were only an officer held in franhalmoigne, was held, by Vice-Chancellor Sir J. Wigram, dial chmch. not to be a cestui que trust {m the sense in which the word "trust" is used in this Court in the oi'dinary case of trustee and cestui que trust) of the stipend and emoluments of the office, but only an officer of the cathedral church, appointed to perform one of the duties imposed upon it by the statutes of the founder (3). In this case the dean and chapter of the cathedral church of Kochester, in exercise of a power vested in them by one of the statutes of the founder, summarily dismissed the head-master of the grammar- school attached to the cathedral from his office, without hearing him in his defence, upon the ground that he had published a pamphlet reflecting on the dean and chapter in the administra- tion of the cathedral funds, in reference to certain of the scholars. Upon a motion for an injunction, the Court held, that the master, according to the true construction of the statutes by which the cathedral was governed, was to be considered only such an officer of the cathedral church as before mentioned, and that his office was not (1) Att.-Qen. v. OUfton, 32 Beav. Lotith Free School, 14 Beav. 201. 596 ; 9 Jur. (N. S.) 939 ; 9 L. T. (N. S.) (3) Whiston v. Dean and Chapter 136. of Rochester, 7 Hare, 532 ; 18 L. J. (2) Att.-Qen. v. Warden, &c., of (iNT. S.) Ch. 473. G08 CHARITIES. Part I. one of trust, giving this Court jurisdiction to interfere on his Sect. 30. ' behalf as schoolmaster ; and also that the Court had no power by injunction pendente lite to prevent the dean and chapter from removing the master from his office, and from appointing another master in his stead, unless a special case for that purpose was made by the proceedings. The Vice-Chancellor, Sir J. Wigram, said : Excluding, then, the case of trust, and assuming also — what he certainly was not disposed to question, though he gave no opinion upon the point — that the removal of Mr. Whiston from the master- ship without hearing him in his defence was a wrong, the question But if a visitor, was, in whom was the jurisdiction to redress that wrong; that if tioi"'(heTeT there were a visitor whose powers were not so circumscribed as to would be in exclude the jurisdiction, he apprehended it was clear that the jurisdiction must be in that visitor, and that his decision upon the point was final ; that the jurisdiction of the Court of Queen's Bench might be called in by mandamus to compel the visitor to act, and that the jurisdiction of that Court, and in some cases of the Court of Chancery also, might be called in by prohibition to If no visitor, restrain the visitor from exceeding his jurisdiction ; and that where Cffttrt of ^ there was no visitor, or the power of the visitor was extinct or B^'^Ttii suspended (Manchester College Case) (1), or is not pleaded in pro- proper ceedings for a mandamus {Dr. Bentleys Case) (2), the Court of Queen's Bench might be the proper Court to redress the wrong ; If no trust ^^ trust. The Court chapel fronr ^ filiation of Independents, and professing the doctrines contained being used for j^ jj^g catcchism of the assembly of divines held at Westminster, any other ser- *' vice than that commonly called " The Assembly's Catechism," and also by such declared in the , iiiji ci • ■, . -, . deed of endow- other persous as Should thereatter be united to the said society, ^^^ ' and attend the worship of God in the said meeting-house ; and several years after the date of the deed the surviving trustee and the congregation of the chapel converted the nature of their the 14tli section of the Charitable Trusts Act, 1860 (23 & 2-1 Vict. o. 136), masters and mistresses of endowed schools (not being endowed grammar schools) are removable by the trustees with the consent of the visitors, if any, with the subsequent approval of the Board of Oharity Commissioners. (1) Free Grammar School of Chip- ping Sodbury, 8 L. J. (Ch.) 13. (2) Att.-Gen. v. Mimro, 9 Jur. 461. (3) Att.-Gen. v. ISt. John's Hi'Spital, Bedford, 2 De &. J. &- S. 621 ; 11 Jur. (N. S.) 6L'9. CHARITIES. 611 religious worship into that of the " Particular Baptists ;" Vice- Part I. Chancellor Sir R. T. Kindersley held, that the use of the sect. 30. chapel must be restored to those professing the original Inde- pendent doctrines, and removed the trustee and appointed new trustees (1). 9. Where by the deed of settlement of a Baptist chapel it was provided that the minister should be liable to be removed by the direction of the church, declared at one meeting and confirmed at a second meeting, and that all directions of the church should be declared by a majority of communicants present at a meeting of - which notice should have been given in the chapel during divine service on Sunday morning, at least four days previously ; and that whenever the church should have to consider the appointment or dismissal of a minister, the notice should expressly state the object of such meeting ; and that each of the directions to be declared at any such meeting should be reconsidered at a second meeting, to be convened by public notice, to be given in manner aforesaid, expressly stating the object thereof ; and on Sunday, the 18th of October, a notice was read in the chapel to the effect that a meet- ing would be held on the following Saturday, " for the purpose of bringing charges against, and considering the dismissal of," the minister ; but no copy of the charges was sent to the minister ; and on the 24th of October the meeting was held, and a resolu- tion passed, that in consequence of certain offences alleged to have been committed by the minister it was agreed that " he is not a fit and proper person to occupy the position of pastor, and that his office as pastor cease forthwith ;" and on Sunday, the 25th, of Oc- tober, a notice was read in the chapel to the effect that a meeting would be held on the following Saturday, " for the purpose of con- firming and ratifying " the resolutions passed at the meeting of the 24th ; and on the 31st of October the meeting was held, and a resolution passed that the minutes of the meeting of the 24th be " passed, confirmed, and ratified :" Vice-Chancellor Sir W. M. James held — upon a bill filed by the trustees of the settlement against the minister, praying that the defendant might be re- strained from taking, or endeavouring to take, possession of the pulpits in the chapels at B,, vested in the plaintiffs as trustees (1) Att.-<}en. y.Aust, 13 L. T. (N. S.) 235. 2 R 2 612 CHAEITIE8, Pakt I. of the settlement, and from acting or officiating in any manner Sect. 30. whatsoever as mmister thereof, and from in any way aisturbnig or interfering with the performance of divine worship in the chapels, and from in any manner intermeddling or interfering with the trust property vested in the plaintiffs by the deed of settle- ment — that the notice of the 25th of October was invalid, be- cause it did not specify the resolutions of the intended confir- mation of which it gave notice ; and hence that the resolution of the 31st of October, and the dismissal of the minister purported to have beSn thereby effected, were also invalid (1). In absence of IQ. In the absence of special usage, rules, or agreement, a dis- special usage, . .. • -i t i • • ■ -ii rules, or agree- sentmg minister appointed by his congregation is not entitled to ™iitiiig miuis- ^(^^<^ ofBce for life, or during good behaviour, against the will of the *^\^u T+ majority of such congregation. And where, by the trust deeds of 6IlLlbl6U TiO hold office for a congregation of Independents, a chapel, a house, and other pro- good ° perty were vested in trustees for the use of the congregation, and e aviour. ^^ permit the minister for the time being to occupy the house, and the deeds contained no express provision for the appointment or removal of a minister ; and in 1866, G. was invited by a resolution of the church members of the congregation to become co-pastor with the then minister ; and in 1868 a majority of the church members resolved that he be dismissed, and the majority of the trustees concurred in this resolution ; and he claimed to hold his office for life, in the absence of immorality, or preaching contrary to the tenets of the denomination, which was not charged : Yice-Chan- cellor Sir J. Stuart — upon a bill by ten out of the eleven trustees against G., the co-pastor, one J. P., alleged to have collected the pew-rents for the minister, and C, the remaining trustee, praying for a declaration that the defendant Gr. had been duly dismissed, and that he might be restrained from preaching and acting as co-pastor, and that he and J. P. might be restrained from col- lecting the pew-rents, and praying an account of the moneys received — held that G. was duly dismissed, and made a decree declaring G. not entitled to officiate in the chapel against the will of the majority of the trustees and congregation, and granted an injunction against him and J. P. in the terms of the prayer, but (1) Dean v. Bennett, L. R. 9 Eq. 625 ; 22 L. T. (N. S.) 368 ; 39 L. J. (Ch.)674; 18 W. E. 487. WILLS. 613 said it was unnecessary to direct any account, and that none had Part I. been pressed for j with costs against G. and J. P., but that the sect^so^^'"' trustee, C, having refused to join, must bear his own costs (1). Sect. 31. Wills. 1. In Dimes v. Steinberg (2), Vice-Chancellor Sir J. Stuart, on a A Mil can be demurrer for want of equity, held that a bill can be maintained in ^e^f'ii'ext of Equity by one of the next of kin against the executors and one of ^'^ ^gamst ^ ■' •' _ ° executors and the legatees in a will fraudulently obtained by them from a person one of legatees of unsound mind, praying for an account, and for an injunction lentiy and receiver pending a suit in the Ecclesiastical Court to recall ^ person of"" the probate. And in Sheffield (Duchess of) v. Duhe of ^mcMwo- r'"™*^"'"*^ '■ _ M \ ./ / J -^ for an mjuno- hamshire (3), it was held that where parties are dissatisfied with a tion pending a probate, this Court will suspend its determination till after a trial probate. upon the validity of it in the proper Court ; and though neither this Court nor a Court of Law can determine the validity of a probate in an " adversary" way, yet if it come before the Court on an incident in the cause, and that incident is admitted by the parties, this Court or a Court of Law may determine it, and hold the parties bound by their admission ; and if either of the parties would afterwards bring a new suit to contest that determination, this Court would certainly grant a perpetual injunction. And in Ball V. Oliver (4), it was held that the jurisdiction of a Court of Equity pending a disputed administration in the Ecclesiastical Court to protect the property by a receiver, was not ousted by the power of the Ecclesiastical Court to appoint an administrator pendente lite, and an injunction was granted restraining the defendant, pending a suit in the Ecclesiastical Court to recall letters of administration to the defendant, from getting in or disposing of the personal estate. 2. Where a trustee of an estate of a lunatic obtained a devise from the lunatic for bis own benefit, and upon the death of the (1) Cooper V. Gordon, 17 W. B. 908 ; (3) 1 Atk. 630. 20 L. T. (N. S.) 732 ; L. E. 8 Eq. 249 ; (4) 2 V. & B. 96 ; et v. Atkinson v. 38 L. J. (Oh,) 489. Henshaw, 2 V. & B. 85. (2) 2 Sm. & Giff. 75. 614 WILLS. Part I. lunatic obtained possession, and the heir brought trespass, and was Sect. 31. nonsuited, and then filed a bill to set aside the will, and stay " execution in an action of ejectment, which the Vice-Chancellor ■ granted on the ground of seeing the result of the bill ; and also held, that if the plaintiff succeeded in setting aside the will, then, as the defendant in Equity would have been guilty of a breach of trust in disputing the title of the eestm que trust, the Court would avail itself of the power of setting off one set of costs against the other : this, upon an appeal, was held by the Lord Chancellor to be inequitable (1). The Couit of 3. In Jones v. Frost (2), the Court allowed a demurrer to a bill not^Jurisdic-*^ praying that an alleged pretended will of real and personal estate vaiVt *'f ^^^ naigbt be delivered up to be cancelled, and an injunction and ■wills. a receiver, till letters of administration should be granted, the pendency of a suit in the Ecclesiastical Court not being distinctly alleged, and the Court of Chancery not having jurisdiction to try the validity of wills either of real or personal estate. And in GingeU v. Home (3) a demurrer was allowed to a bill praying that a will of personalty might be declared to have been fraudulently obtained, and that the residuary legatee might be declared a trustee for the plaintiffs, on the ground that a Court of Equity has no jurisdiction to relieve against the probate of a will, unless the consent of the This Court next of kin to the granting of it was fraudulently obtained. And against a^pro- ^o, in Barnesly V. Powel (4), it was held by Lord Chancellor Hard- bate obtamed -(yjcke that this Court will relieve against a probate obtained by defendant fraud, and in this case a deed importing a consent thereto was set consent to aside in this Court, and not in the Ecclesiastical Court ; and the revoca ion. defendant was decreed to consent to a revocation of the probate. Trustees of a 4. Where a man (the defendant R. V.) fraudulently obtained ad- settior'ofpro^ ministration to an intestate's estate by representing himself as sole PJ^j'y' , , next of kin, knowing his father was aUve and was the next of kin, obtained oj , letters of and Settled the property thus acquired on his own marriage, being tion sued out iu debt at the time j upon a bill by G., the husband of one of the restS*'^' sisters of the defendant R. V. (who was a creditor of E. V.) charging ileallng with ^jj^t qu his obtaining administration to his uncle's estate, he became the capital. (1) Murleyv. Orcenham, 3 Jur. 576. v. Jones, 3 Mer. 161 ; 7 Price, 663. (2) Jac. 466 ; 3 Miidd. \;etv. Jones (3) 9 Sim. 539. (4) 1 Ves. Sen. 119, 287. GAMBLING— GAMING. 615 a trustee thereof for his father, and praying that the settlement Pabt I. might be set aside as fraudulent and Toid as against the creditors seot. 31. of the defendant E. V., and that the trustees might be restrained from selling the residue of the estate (part of which had been sold), and from receiving the purchase-money, and from parting with, or in any way dealing with the trust funds, Vice-Chancellor Sir E. Malins granted an injunction restraining the trustees from dealing with the capital of the property, but not interfering with their application of the income to the trusts of the settlement (1 )• Sect. 32. Q-amhling — Gaming. 1. The Court will not interfere to relieve in respect of a specu- The Comt lative transaction upon the Stock Exchange, where the claim to ^lieve in relief amounts in effect to this, that the plaintiff has been misled respect of a ' -^ speculative by the trick of some fellow-speculators to enter into a transaction transaction on /.111 1 mi rr. ^^^ Stocli which has not turned out so profitably as he expected, ihe Vice- Exchange, Chancellor (Sir W. P. Wood) said that this case stood on the same Tiff has^w footing as a mere gambling or betting transaction, with which the T'^t '^f^'^if Court would decline to interfere, leaving such questions to be speculators. arranged, as in the case of so-called debts of honour, by those much more competent tribunals, the Jockey Club or the committee of the Stock Exchange. This was a motion on behalf of the plaintiff to restrain the defendants from taking proceedings against the plaintiff to enforce a contract for the sale of shares in a company, and from causing any proceedings to be instituted by or through the committee of the Liverpool Stock Exchange, on the ground, as alleged in the bill, that the plaintiff had been unable to com- plete his contract for the sale to one of the defendants at a given price, at a given time, in consequence of an alleged scheme entered into by the defendants to raise the price of the shares, so as to make an exorbitant profit (2). 2. In Osbaldiston v. Simpson (3), securities (promissory notes) Promissory given by the plaintiff to prevent a threatened prosecution for (as prevent T" alleged falsely) cheating at cards, for the penalties for that offence t'^i'eatened (1) Gibson v. Head, 17 W. E. 986. (2) Bees v. Fernie, 13 W. R. 6. (3) 13 Sim. 513. 616 PUBLIC POLICY. Part I. under the 9 Ann. c. 14, s. 5, were decreed to be delivered up. Chapter III Sect. 32. ' The Vice-Chancellor, SirL. Shadwell, said if B., one of the defend- for clieating ^^^s, could have recovered the penalties at Law, he was at liberty at cards, to do SO ; but that he could not be an arbitrator in his own cause. decreed to be delivered up. and determine the amount of the penalty the plaintiff ought to Bills of pay for his CB.'s) benefit. And in Wynne v. Callander (1) bills of exchange r J \ / v \ / given for a exchange made in France, on French stamps, and substituted in debt, ordered France for Englisb bills of exchange, which were originally given delivered up ^'°^ ^ gambling debt, were ordered to be delivered up. Equity will 3. Equity will restrain an innocent hona fide assignee for value restrain an • . • a ■ • r -< • i • innocent 01 a security given tor money won in gaming from entorcmg his seora-%for* claim, even upon a judgment already obtained, and although the money won in defendant at Law did not resist the suit at Law on that ground {'£). gaming, from ^ ^ ' enforcing his And on a bill filed to enjoin a judgment, because the debt was for money won at cards — the evidence leaving it doubtful whether this was the consideration, or, if it was, whether the judgment creditor, an assignee of the debt, had not taken it under a false representa- tion or concealment of the debtor as to the consideration — ^it was held that the bill should not be dismissed, but that the injunction should be continued, and an issue had to determine the facts (3). Sect. 33. PuWie Policy. Where a legal 1. Where a legal right exists, the Court cannot refuse to inter- th^ Court can- fere for its protection, upon grounds which depend exclusively on "roteotT *° considerations of national policy (4). The Vice-Chancellor, Sir upon grounds Q-, J. Turner, in this case, said it was for the Legislature and not for of public policy. the Courts to deal with questions of national policy, and that the duty of the judge was to administer the law and not to make it ; and the Vice-Chancellor granted an injunction against subjects of the kingdom of Holland, to restrain them from using on board their ships, within the dominions of England, without the license of the plaintiffs, an invention to the benefit of which the plaintifis were exclusively entitled under the Queen's patent. (1) 1 Euss. 293. 354 (Amr.) (2) Gout/h V. Pratt, 9 Md. 526 (4) Caldwell v. Vanvlissengen, 9 (Amr.) Hare, 415; v. ante, pp. 247, 248. (3) Nelson \. Aimslnnxj, 5 Gralt. UNDUE INFLUENCE. 617 2. In Harrington t. Bu- Ghatel (1), a perpetual injunction was Paut I. granted by Lord Chancellor Thurlow against an action on annuity "^£^^33 " bonds given for the purchase of an office as a page of the presence ' at court, upon the public policy of the law, although the oiSce was not within the statute 5 & 6 Edw. 6, and similar to marriage bro- cage bonds, where, though the parties are private persons, the practice is publicly detrimental. Sect. 34. Undue Influence. 1. No person who stands in a relation of special confidence to No person another, so as to acquire habitual influence over his mind, can relation of accept any gift or benefit from the person who is under the do- £^^ence t™" minion of that influence, unless a sufficient protection has been another, so as - . , . n . to acquire interposed against the exercise of such influence (2) ; and Vice- habitual in- Chancellor Sir J. Stuart, in this case, held that a gift by a person of his mind, can weak intellect of her whole fortune to a person who had acquired ^ftg^or benefit great influence over her mind, by making her and others believe f™™ the 11 • 1 11 -11 person under that he sustained a supernatural character, was mvalid ; and the the dominion Court ordered the donee to refund the gift (stock), with interest flueuce, unless thereon from the time of the death of the donor, and to pay all ™^eJ^°^ the costs of the suit. The Vice-Chancellor said that it was needless has been to inquire or speculate whether the defendant was himself also against such the victim of his own imposture ; that the most favourable view "®^<'^- of his conduct would be that, under the influence of a disordered imagination, he really fancied himself to be such a supernatural being as he made the donor believe ; but that, even if it were possible to take this lenient view of the defendant's conduct, when the question was as to the validity of the gift, it was only necessary to shew that it was bestowed under the influence of a delusion. This was a bill by the administrator of the donor to restrain the defendant, the donee, from transferring a sum of stock obtained from the donee by imposing a belief on her that the donee sustained a supernatural character, and for a transfer of the stock. 2. Undue influence may exist in the form of bad companionship Undue influ- ence, sufficient (1) 1 Bro. C. C. 124. (2) Nottidge v. Prince, 2 Giff. 246 ; 29 L. J. (Ch.) 857. 618 UNDUE INFLUENCE. Past I. and bad example, but this would not be sufficient to invalidate a Sect. 34. " will made under its operation. To be within the meaning of the to invalidate ™-^® °^ ^^^' ^° ^^ ^ produce that effect, it must be an influence a will, must exercised by coercion or by fraud. But actual violence, used or be exercised •' •' _ . y . by coercion or threatened, is not necessary to constitute coercion. Imagmary actual violence terrors, produced by a person in vigorous health towards one feeble — thTooercion ^^ ^°^Jj ^^7 ^® Sufficient for that purpose, and a will thus made of imaginary may possibly be described as obtained by coercion. " Undue influ- terrorsis "' ^. •' .,, . , i ■ n i • i sufficient. ence, m order to render a will void, must be influence wnicn can justly be described, by a person looking at the matter judicially, to have caused the execution of a paper pretending to express a testator's mind, but which really did not express his mind, but expressed something else, something which he did not really mean :" Undue influ- per Lord Chancellor Cran worth (1). Undue influence cannot be ence cannot be mi • presumed— it presumed, but must be proved (2). This was an appeal from the proved.'^ Court of Chancery in Ireland on a bill praying that a will might be declared void as obtained by undue influence, or for an issue devisavit vel non ; or that the plaintiffs might be at liberty to proceed at Law, by ejectment, for the recovery of premises of which the testator died seised; and that the defendants might be restrained from relying on outstanding tenancies, or any out- standing terms or temporary bars, as a defence against the plaintiff's proceedings. A person 3. Whenever a person obtains by voluntary donation a benefit voluntary from another, he is bound, if the transaction be questioned, to prove donation is ^t^^^ ^q transaction was righteous, and that the donor voluntarily ready to prove and deliberately did the act, knowing its nature and effect ; and that the trans- ,.,. n ^ action was this rule IS not continea to cases of attorney and client, parent and acw*oiu"ntai7 child, &c., but is general. And where L. F. had requested her and delibe- nephew, J. L. L., to come and reside with her, and while so doing she had altered her will in his favour, and she subsequently had made several other alterations, and by the last the greater portion of the property she, had power to dispose of was given to J. L. L. and his two brothers ; and these alterations were made by her own solicitor ; and after the last of these alterations she executed a post- obit bond for £1500 in favour of J. L. L. and his two brothei-s, and (1) Boyse v. liossbomigh, (I H. L. C. 13, 3-1, 49 ; 3 Jur. (N. S.) 373 ; 3 Kay, 71 ; 3 Do G. M. & G. 817. (1<) lb. UNDUE INFLUENCE. 619 this was done by a solicitor unknown to her, who was employed at Pabt I. Chapter IXI her request by J. L. L. ; and differences afterwards arose between s^.^. 3i. L. F. and her nephew, J. L. L., who left her house ; and L. F. then sent for her own solicitor, and, without taking any notice of the bond, altered her will, and disposed of the whole of her property among other persons, and died, leaving insufficient to pay the bond ; and her solicitor, who was one of her executors, upon communi- cating the decease of the testatrix to J. L. L., was, for the first time, informed of ber having executed the bond : upon a bill by the executors to set it aside, the Court held, that the bond was obtained by undue influence and upon a suppression of facts, and that the nephew, J. L. L., not having proved that the aunt knew that the effect of the bond was to make her will irrevocable, the bond was void ; and that it must be delivered up to be cancelled, with the costs to be paid by J. L. L. (1). 4. Where A,, a widow, aged seventv-five, within a few days after Gtifts made . . . . , through the first seeing B., who claimed to be a so-called " spiritual medium," ascendency of was induced, from a belief that she was fulfilling the wishes of her ovct mind of deceased husband — alleged to be conveyed to her through the ^°°?^'jf f7 medium of B. — to adopt him as her son, and transfer £24,000 of the donee stock to him ; to make her will in his favour, and afterwards to sphitual give him a further sum of £6000 stock ; and also to settle upon ^j^g"™' *'" him, subject to her life interest, the reversion of a mortgage security for £30,000 (these gifts being made without consideration, and without power of revocation) ; upon a bill by A. praying a transfer of the consols and an assignment of the mortgage security, and an injunction to restrain any dealings by the defendants with the consols and the mortgage debts, Vice-Chancellor Sir G. M. Giffard held, that the relation proved to have existed between them implied the exercise of dominion and influence by B. over A.'s mind ; and, consequently, that as B. had failed to prove that these voluntary gifts were the pure, voluntary, well-understood acts of A.'s mind, they must be set aside (2). (1) Cooke v. Lamotte, Lamotte v. 451 ; 16 W. R. 824 ; et v. Hatch v. Cooke, 15 Beav. 234; 21 L. J. (Ch.) Batch,9 Ves.292,2d6; Dent y. Bennett, 371. 4 My. & Cr. 269, 276 ; Euguenin v. (2) Lyon v. Home, L. R. 6 Eq. 655 ; Baseley, 14 Ve.s. 273. 37 L. J. (Ch.) 674 ; 18 L. J. (N. S.) ( 620 ) Part I Sect. 35. Arbitrations — Awards. Chapter III. 1. Upon a bill filed by the plaintiff alleging that he could not obtain justice by the process of Common Law, and praying that the award might be set aside ; that all accounts and questions arising out of the dissolved partnership mentioned in the bill might be adjusted and settled by this Court; or, otherwise, that the de- fendants might be restrained from setting up the award as a defence against the plaintiff's seeking to adjust and settle such questions in the Court of Bankruptcy ; and — as state.d by the Vice-Chancellor — the question that arose upon the bill was that there being a power to make a submission a rule of a Court of Common Law, the original jurisdiction which this Court entertained up to the statute of Will. 3, of controlling the award (where satisfied that, upon equitable grounds, it ought to be controlled and rectified) had Where a sub- been, in effect, taken away : the Court held that where a submission tains no agree- *io6s not contain an express agreement enabling the parties to STrule o'r'^^ make it a rule of Court, neither the submission nor the award is Court, neither brought within all the consequences or proTisions of the 9 & 10 submission . /^ t nor award is Will. 3, c. 15, by force of the Common Law Procedure Act, 1854 ofWiii. 3, and (1^ & 18 Vict. c. 125, s. 17); and that the Bankrupt Law Con- *!'^^j™''^(. solidation Act (12 & 13 Vict. c. 106, s. 153) had not this effect; remains. and that the jurisdiction of a Court of Equity to set aside the award had not been taken away, but that this jurisdiction will not be exercised without great caution ; and, unless gross hardship and injustice would result from a refusal to interfere, the Court will not assist a party who might have obtained relief by taking proper steps at Common Law, but has allowed the opportunity for doing so to lapse ; and in such a case the Court of Chancery will follow the course taken by the Courts of Common Law, and adopt a rule of Delay (here) its own in analogy to the limitations of the statute. Therefore, set aside where a plaintiff had suffered the next term after the publication awar . ^^ ^j^^ award to elapse without taking any steps to set it aside, and had afterwards unsuccessfully pleaded nul tiel agard in an action on the award ; the Court held, dismissing the bill with costs, that although the award could not have stood if the matter had been fresh, it was too late to interfere (1). (1) Smith V. Wliitmore, 1 H. iS: M. sentiente, Lord Justice Turner, 10 Jur. 570 ; 12 W. 11. 244 ; affirmed ou appeal (N. S.) 1190. liy Lord Juslico Knij;lit Brucf, dis- ARBITRATIONS— AWAEDS. 621 2. The award of an arbitrator finding a damage done by a nui- Paet I. sance is to be treated as a verdict establishing a legal right, so as seot. 35. to entitle the party in whose favour it is made to an injunction (1). 3. Where, under the 8 & 9 Vict. c. 118, the Inclosure Commis- sioners had made a provisional order, and were proceeding to make their final award, and it was disputed whether the lands intended to be inclosed by them were within the Act, Vice-Chancellor Sir E. T. Kindersley held, that Equity would not interfere to restrain them by injunction from proceeding (2). And in Bateman v. Boyn- ton (3), where an award was made in the year 1765 by Inclosure Commissioners, acting under the authority of an Act of Parlia- ment, whereby they apportioned certain lands and a rentcharge between the rectors of B. and curates of U. ; and the plaintiff, who was at the time of filing the bill curate of TJ., by his bill com- plained that this allotment was beyond the power of the commis- sioners, and prayed that the award might be rectified, and a fresh partition made; the Lords Justices Sir J. L. Knight Bruce and Sir G. J. Turner held (reversing a decision of the Master of the Eolls, Lord Eomilly), that on the true construction of the Act the commissioners had power to make the allotment ; but, semble, that if they had made a mistake, and had acted ultra vires, this Court would not in such a suit as this, if in any suit, have had power to rectify the award. 4. Where a railway contractor, on the completion of the works, brought an action against the company to recover the balance, and by an order of Court all matters in difference were referred to arbitration with full powers, and the Court was empowered to refer back the award from time to time, and the award was made in July, 1848 ; and in January, 1850, the company filed this bill, alleging fraud in the performance of the works, practised in collu- sion with their engineer, and discovered since the award, and seek- ing to set aside the award, and to have the accounts taken, and praying an injunction to restrain the defendant from issuing any attachment under, or otherwise enforcing, the award, or taking or (1) Imperial Oas Light and Coke (3) L. R. 1 Ch. 359 ; 12 Jur. 383 ; Company v. Broadbent, 7 H. L. 0. 600. 35 L. J. (Oh.) 18, 568 ; 14 W. R. 119, (2) Turner v. Blamire, 1 Drew. 402 ; 598 ; 13 L. T. (N. S.) 487 ; 14 L. T. 22 L. J. (Ch.) 766. (N. S.) 371. 622 AEBITRATIONS-AWABDS. PabtL prosecuting; any proceediEa;8 under the rule of Court; a general ChaptebIII. \ ^ ,, , , •, , , xi xi. in Sect. 35. demurrer was allowed, on the ground that the matter was already before another jurisdiction competent to reconsider the matter and decide all questions (1). 5. Where it was one of the terms of an agreement to refer dis- putes to arbitration, that the submission might be made a rule of Court at Law at the option of either party, and a bill having been filed to set aside the award, and it appeared by the answer of the defendant that the submission had been made a rule of the Court of King's Bench by the defendant subsequently to the filing of the bill, the common injunction which had been obtained by the plaintiff was, upon appeal, dissolved : the Lord Chancellor, Lord Brougham, holding that the Court of Chancery had no jurisdiction in this case to relieve against the award ; and that, under the 9 & 10 Will. 3, c. 15 (under and within which statute the Lord Chancellor said this submission was), it was intended to give that Court only in which the submission is made a rule the power of reviewing the award, and this being a submission, not in a cause depending either here or at Law, but by agreement, with the usual power for either party to make the submission a rule of the Court of King's Bench or other Court of Kecord, and therefore altogether under and within the 9 & 10 Will. 3, c. 15 (2). And where a bill to set aside, and for an injunction to stay proceedings on, an award, OQ the ground of fraud and corruption in the arbitrator, was filed before the submission had been made a rule of the Court of King's Bench, but the submission was, within due time, made a rule of that Court, it was held that Equity had no jurisdiction, although the award might have been made a rule either of this Court or of the Court of King's Bench (3). And, on an action being referred at Nisi Prius, semhle, the Court of Equity has no jurisdiction to interfere with the certificate of the referee, or the judgment entered in pursuance thereof, on any ground on which it would not have such jurisdiction if the judgment had been obtained in the ordi- nary course upon the verdict of a jury. The Lord Chancellor, Lord Cottenham, observed, that it (the reference here to an arbi- (1) Londonderry and Enniskillen (2) Nichols v. Soe, 3 My, & K. 431 ; Railw. Co. V. Leishman, 12 Beav. 423. 5 Sim. 156. (3) Dawson v. Sadler, 1 S. & S. 537. AEBITEATIONS— AWAEDS. 623 trator) was only a mode of proceeding at Law, and that this Court Pakt i. had no more jurisdiction over a judgment so obtained than if the g^^ 35. ' amount had been ascertained by a jury (1). 6. Where an award is made after the submission has been Where award revoked by the plaintiff, Equity will not restrain the defendants levooatlari of from acting on the award, unless the plaintiff had good grounds ^"aStM""^ ^^ for revoking the submission. And where, after an agreement to defendants n- • 1 n 1 ^ , , , wiUnotbe refer to arbitration, the owners 01 the property revoked their restrained act- assent to the reference, but the arbitrators, nevertheless, proceeded a^ard unless to make their award, and the owners filed a bill for an iniunction §°°^ grounds •' lor revokiug to restrain the defendants, the Commissioners of Woods and award. Forests, acting under powers given them by Act of Parliament (the 1 & 2 Vict. c. 7), from taking possession, but did not shew any good reason for the revocation of their assent, the Court refused an injunction. The Vice-Chancellor, Sir L. Shadwell, said that a plaintiff was not at liberty to ask the aid of a Court of Equity in respect of an act done by him against good faith ; and as in this case there was nothing whatever to shew that the power which the plaintiffs had given to the arbitrators was revoked upon any just or reasonable grounds, he was bound to conclude that the revocation was a wanton and capricious exercise of authority on their parts, and consequently the motion must be refused (2), 7. Where there were objections to the award which might have If there are been equally the subject of jurisdiction in the Court of Law, the an award^ reference having been made a rule of the Court of Queen's Bench, ^^^ ^j^ ^ this Court dissolved an injunction. But the award being prepared ^ Court of by the solicitor to one of the parties was no objection, nor was it Court will not an objection that the reference was not made a rule of Court till after the award (3). 8. In Bowes v. Fernie (4) an award in pursuance of an agree- Award s( t ment of reference, which had been made a rule of Court in the^ot^j^a"^ cause, was held bad, and set aside : first, because the arbitrators ^^^^ ^^- ' ferred, and had awarded on a matter which was not referred to them, and what arbitrators they had so awarded without authority could not be separated arbitrate on from the other parts of their award ; secondly, because they had ^f^rred. (1) Ohucle V. Cremer, 2 Ph. 477. (3) Featherstone v. Cooper, 9 Ves. 67. (2) Pope V. Duncannon {Lord), 9 (4) 4 My. & Cr. 150. Sim. 177. 624 AEBITEATIONS— AWAEDS. Pabt I. declined to arbitrate upon certain matters included in the refer- "sffiT^'ss. ' ence ; although, as observed by Lord Chancellor Cottenham, it is true that the Court leans in favour of awards, and will readily adopt a reasonable construction for the purpose of maintaining their validity. 9. Where, under the then practice, an injunction, for want of an answer, had been obtained to restrain the defendant from all pro- ceedings at Law against the plaintiff on an award for payment of money, and the award having been made a rule of the Court of King's Bench, the defendant applied to that Court for an attach- ment for non-performance of the award, and obtained a rule to shew cause, this (under the then practice) was not of itself any breach of the injunction ; for, in the common case of restraining an action, the injunction of this Court, if no action had been commenced, restrained the defendant from commencing such an action; but if an action had been actually commenced, it permitted the party to go on to trial and judgment, and only restrained the execution. In the present case, therefore, the Lord Chancellor thought that the making the award a rule of Court, which had been done before the injunction, was to be considered as the commencement of the proceeding ; and that the defendant might not only obtain a rule to shew cause (as he had done), but might go on to make his rule absolute for the attachment without being guilty of a breach of this injunction, so as he did not execute the attachment (1). ■Where,bycou- 10. Where, by consent, an order has been made in Chancery to has leen""^ ^^ refer a suit to arbitration, no other Court has jurisdiction over an made m Chan- award made in pursuance thereof (2). eery to refer -^ ^ ■' to arbitration, no other Court has jurisdiction over the award. A parol sub- 11. A parol Submission to arbitration was held not within the within"the''°* statute 9 & 10 Will. & Mary, c. 15. The Lord Chancellor, Lord statute of Eldon, Said that he had always understood that where an award William & ' •' Mary, and was to be made a rule of Court, the submission that it should be may recede SO must be in writing ; and that if there was a parol agreement miasio*n is™*^" ^^ make & reference a rule of Court until it was actually made so, actually made either party might recede from it ; and that the word " insert " in Court. the statute (" insert such their agreement in their submission," &c.) (1) Franco v. Franco, 2 Cox, 420. (2) Pitcher v. Eiyby, 9 Price, 79. AEBITEATIONS— AWAEDS. 625 must mean an act that infuses that submission into something PaetI. ,. ,-jj.„„ /l\ Chaptee in. written (1). g^^^^ 35 12. Where a mining lease provided for arbitration in case any controversy should arise relative to the lease, or any covenant, clause, matter, or thing therein contained, or the custom thereof, or any matter, clause, or thing relating thereto ; and a bill was filed by the lessors to restrain the lessees from working the mine contrary to the provisions of the lease ; and the lessees then appointed arbitrators under the arbitration clause referring to them all matters in dispute, and moved, under the 11th section of the 17 & 18 Vict. c. 125 (the Common Law Procedure Act), to stay proceedings in the suit : the Court held, that the case came within the scope of the 11th section, but that the section gave a dis- cretion to the Court ; and that this was a case in which the Court, in the exercise of its discretion, ought not to stay proceedings, on the ground that the notices to refer related to other matters besides those the subject of the suit, and that questions arose in the suit which did not come within the clause in the lease (2). 13. Where, under a submission to arbitration containing no pro- vision for making it a rule of Court, an award was made in June, 1859, finding a sum due from S. to W. ; and in December, 1859, W. brought an action on the award ; to which S. pleaded nul tiel award, and adduced, in support of the plea, evidence that the arbitrators had made their award according to the opinion of a third party, and not their own ; and a verdict was found for S., leave being reserved to W. to move to have it entered for him ; and in June, 1860, the Court of Exchequer disharged a rule nisi which had been obtained for that pur- pose ; but in December, 1861, the Exchequer Chamber reversed this decision, on the ground that the defence was not available by way of plea ; and in March, 1862, S. filed a bill to set aside the award, and to be relieved against the judgment : — Vice-Chancellor Sir if tjjc submis- W. P. Wood held, that as the submission did not contain any ™:™. *° ^^^^' agreement that it might be made a rule of Court, and as it never not contain an agreement had been made a rule of Court, the Court had jurisdiction ; that if that it maybe the matter had been fresh, the award must be set aside, and the q^-^^i^ ^j^g (1) V. Mills, 17 Ves. 419 ; v. (2) Wheatley v. Westminster Brynibo Blackstone's Commentaries, vol. iii. p. Coal Company, 2 Dr. & Sm. 347 ; 11 17, 16tli (Coleridge's) Ed. Jur. (N. S.) 232. 2 S 626 ARBITRATIONS— AWARDS. Part I Court bad still jurisdiction to do so ; but that as the plaintiff Sect. 35. ' might have made the submission a rule of Court, and set aside the Court of Chan- ^^^i'*! ^^ ^^^ On the grounds urged, but had allowed the time for eery has juris- so doing to elapse, the Court of Chancery ouarht not to interfere, diction to set , ? ^ ' , , . -,.-,■,. , , aside the unless m a strong case, and being disposed to the view that the arbitrators had, however irregularly, come to a correct conclusion, dismissed the bill ; and on appeal it was held, by Lord Justice Knight Bruce, that the plaintiff must, by bis course of conduct, be taken to have elected to defend himself against the award by defending the action, and to abandon all other modes of opposition ; that he must therefore abide by the result of the action, and that the bill had been properly dismissed (1). But it was held by Lord Justice Turner, that where a submission to arbitration has not been made a rule of Court, and contains no agreement that it may be made a rule of Court, the jurisdiction of Equity to set aside the award is unaffected by the statutes, and that the plaintiff's con- duct had not been such as to debar him of his right to resort to a Court of Equity ; that the Court had no jurisdiction to inquire whether the award was right or wrong, and that the plaintiff ought to have had relief, on the ground of the invalidity of the award (2). 14. Upon a motion by the plaintiff to restrain an arbitrator from making an award, and a cross motion by the defendants to stay further proceedings in the suit, Vice-Chancellor Sir W. P. Wood held, that there is no original jurisdiction in the Court of Chancery, in the nature of a writ of prohibition, to restrain an arbitrator from proceeding to make an award, and that the only jurisdiction that exists to stop the proceedings is founded on the conduct of the parties. But the repudiation by a railway company of a contract for the completion of their line, followed by seizure of the works under an order of a colonial Court, was held by the Vice-Chancellor a waiver on their part of the right to proceed by arbitration under the same contract with reference to the question of the legality of the seizure, and all matters involved in, and dependent upon, such question. At the same time, the Common Law Procedure Act had introduced a very wholesome provision — that where there was a reference going on, it should be competent for the Court to stay the pro- (l) Smith V. Wiitmore, 2 De G. J. & S. 297. (2) lb. AEBITEATIONS— AWAEDS. 627 ceedings pending the reference (1). But upon an appeal from this Part I. order the Lord Chancellor, Lord Cranworth, said that the Vice- '^^ect.'s™' Chancellor might have come to a correct conclusion as to the~~ parties having by their conduct excluded themselves from the benefit of their contract to arbitrate ; but his Lordship could not see his way to that conclusion until the cause was heard, but that it was, however, quite clear that the Legislature never intended that, where a reference and a suit were going on together, the Court should not have power to stay proceedings ; and the order finally made was to discharge the order of the Vice-Chancellor — both motions to stand over, with liberty to apply, and the reference to go on, the defendants undertaking not to take any proceedings upon any award without the leave of the Court (2). 15. Where by a contract between a railway company and a con- tractor, it was provided that if the contractor made default the company might complete the line, and that the plant upon the line belonging to the contractor should become the property of the company, and be set off against the debts (if any) due from him to the company, and that the contractor should not hinder the com- pany from using the same; and default having been made, the company completed the line, and was proceeding to remove the plant, and an arbitration was pending to decide the questions of account between the contractor and the company ; the Court held, that the company must be enjoined fi'om removing the plant before the award was given (S). 16. The power to revoke, without the leave of a Court, a sub- The power to mission to arbitration which does not contain a consent clause for mrssion^o" " making the submission a rule of Court, is not affected by the arbitration, ° '' _ where there is Common Law Procedure Act, 1854. And where A. and B., having no clause for dissolved partnership, signed an agreement by which, after stating submission a that B. had offered A. £18,000 for the purchase of his interest in [g^^^otlffected the partnership' business and assets, and that A. had declined the by theCom- '^ ^ _ mon Law Pro- offer, but was willing to accept £20,000, they agreed to leave it to oedure Act, a referee to say what sum should be paid by B. to A. ; Vice- Chancellor Sir R. Malins held — upon a motion on behalf of the plaintiff, in a suit for the dissolution of the partnership between (1) Pickering v. Cape Town Railw. (3) Garrett v, Salisbury and Dorset Co., L. E. 1 Eq. 84. Junction Eaihv. Co., 12 Jur. (N.S.) 495. (2) lb. 2 S 2 628 INTEEPLEADEE SUITS. Paut I. the plaintiff and tlie defendants, for an injunction to restrain the Seot™5. ' defendants from drawing, &c. bills, or entering into guarantees, or executing securities in the name of the firm, and from receiving the partnership assets, and from carrying on their own business on the partnership premises, and for the appointment of a receiver of the partnership assets — that the authority of the arbitrator was restricted to awarding a sum not less than £18,000, nor greater than £20,000, and that the agreement was revocable by either party at any time before the award was made, and had been revoked by the plaintiff, and that therefore the terms of the disso- lution were not ascertained, and that the accounts of the partner- ship would have to be taken when the case was brought to a hearing (1). Award ty an 17. Where Contractors on a railroad agreed with the company company °set *° ^^^^^ ^^^ disputes and dlflerences to the engineer of the company, aside (here) at whose decision should be conclusive and without appeal, and the suit of con- . '■'■ . tractors. engineer was a stockholder to the amount of ten thousand dollars, which was unknown to the contractors at the time of making the agreement ; the Court held, on a bill filed by the contractors, that Equity might set aside the award, and order an account for their damages by breach of the contract (2). Sect. 36. Interpleader Suits. 1. Where a sheriff's officer had notice at the time of the seizure under a fi. fa., that the goods seized were not the goods of the person against whom the writ issued, but belonged to another per- son, who threatened to take proceedings at Law to recover them, and the sheriff filed a bill to restrain the proceedings, and for A sheriff, on interpleader ; upon a motion for an injunction, Vice-Chancellor pleader"biur" ^'^' ^- '^- I^indersley, without deciding whether the sheriff could ftere tr ' ^'® ^ ^^^^ ^^ interpleader, held that it behoved the sheriff to satisfy good ground the Court that there is good ground for supposing that the goods for supposing ,,./.,. ■, the goods the subject ot the seizure were the goods of the party (i.e. the party (1) Thomson v. Anderson, L. E. 9 (2) Milnor v. Georgia, &c., 4 Geo. Eq. 523 ; 39 L. J. (Ch.) 468 ; 18 W. E. 385 (Amr.) 445 ; 22 L. T. (N. S.) 670. INTEEPLEADEE SUITS. 629 whose goods were seized) ; and the plaintiff not having done this by Paht i. his bill, and not having used due diligence in filing the bill (the 'gE^'se!^' bill was not filed until three weeks after the seizure), that the ~. ; ^' seized were motion must be refused with costs (1). But as to the right of a the goods of sheriff who had seized goods to file a bill of interpleader, the debtor. Master of the EoUs, Sir J. Eomilly — ^upon a bill by a sheriff who had seized certain goods belonging to a railway contractor under a fi. fa. which had been issued against the railway company, and the contractor claimed the goods seized as his own, and the sheriff then filed a bill to restrain proceedings at Law threatened by the contractor, and for interpleader, without giving notice to the judgment creditor of the contractor's claim — held that, having it cannot be regard to the then late decisions, he did not think he could hold ^J^'^.2'?* ? ' ° snerm is in no that the sheriff was in no case entitled to file a bill of interpleader, case entitled but that it was clear that in the present case the sheriff had put interpUader. himself in the wrong, and must pay the costs of the suit. The sheriff had neglected, first, to acquaint the creditor with the adverse claim, in order to give him an opportunity of withdrawing his claim before the bill was filed, and the creditor, upon being informed of the contractor's counter claim, abandoned his own, but the sheriff still claimed to be dismissed with costs (2). In Smith V. Craigf (3) it was held that a claimant under a bill of sale must give the execution creditor an opportunity of examining his claim before requiring the execution creditor to say if he will accept an issue, 2. Where the husband of a married woman had mortgaged a legacy belonging to his wife, which was charged upon land, with powers of distress and entry, and by the receipts of the rents, or demise, sale, or mortgage, to raise the same, and the mortgagees threatened to take proceedings at Law to recover the legacy ; upon a bill by the wife by her next friend, praying that the legacy might be raised by a sale or mortgage, and for a settlement thereof, or a competent part, upon herself and children, and that the defen- dant G,, the owner of the devised land charged with the legacy, might be at liberty to pay into Court to the credit of the cause (2) Tu/ton V. Harding, 6 Jur. (N. S.) (3) Button v. Furness, 12 Jur. (N. S.) 116 ; 29 L. J. (Ch.) 225. 386. (3) 16 Ir. Ch. Eep. App. v. 630 INTERPLEADER SUITS. Part I. the legacy and interest, and that the mortgagees (other defendants) Chapter in. . , , • i^ ^ i • j- Sect. 36. upon such payment might be restrained trom taking proceedings for the recovery of the legacy ; the Master of the Eplls, Sir J. Eomilly, held that the owner of the land charged was entitled to pay the money into Court, and protect himself from being vexed by double proceedings ; and that upon payment of the money into Court, an injunction must go to restrain the action which it was stated the trustees had commenced to obtain possession of the land, the costs of the motion being costs in the cause (1). 3. In Blennerhassett v. Scanlan (2), it was held that on the dis- missal of a bill of interpleader, the plaintiff is entitled to be paid back the money which he lodged in Court for the purpose of obtaining an injunction ; and that the injunction falls, ipso fado, without an order for the purpose, though it was the general practice to apply for an order to dissolve it. A tenant can- 4. A tenant cannot file a bill of interpleader against his landlord of inteqdeader ^u notice of ejectment by a stranger, under a title adverse to that f "^dl **d^'^ of the landlord ; and on suspicion of collusion (here), an inquiry notice of eject- into the circumstances was directed, and the report confirming the stranger. fraud, the bill was dismissed with costs to the landlord, as between attorney and client, to be paid by the plaintiff and his solicitor — the latter to shew cause why he should not be struck off the rolls. ^ ^ , , The Lord Chancellor said : " A bUl of interpleader will lie, where But tenant _ '^ ' may file a bill the tenant may be liable to pay the rent to one of two different of interpleader . where there is persons, in the Circumstances of that case both the persons tenure and claiming the same rent must claim in privity of tenure and contract be- privity of contract ; as in the case of mortgagor and mortgagee, persons claim- trustee and cestui que trust ; or where the estate is settled to the ing the rent. , „ . , « , . , , separate use oi a married woman, oi which the tenant has notice, and the husband has been in receipt of the rent, and differences arise between them, and she claims the rent. There may be a variety of cases in which the tenant, not disputing the title of the landlord, but afiBrming that title, the tenure, and the contract by which the rent is payable, but where it is uncertain to whom it is to be paid, may file a bill of interpleader. In a case before me (1) Duncombe v. Greciiacrc, 6 Jur. (N. S.) 987; 8 W, Iv. 657. (LI) 1 Hog, 363. INTEEPLEADEE SUITS. 631 the other day, where there was a mortgage, the tenant was not Pabt I. bound to settle the account between the mortgagor and mortgagee. se(;t. 36. If the mortgagor will not indemnify the tenant, he has a right to come here for an indemnity " (1). And so in Cowtan v. Williams (2) A tenant may it was held that a tenant may file an interpleader bill against his pleader bill landlord where the question arises on the act of the landlord question arises subsequent to the lease. This was a case of a bill of interpleader ™ ^^ "?* °\ ^ ^ liincllord sub- by a lessee of tithes against the lessor, the vicar, and the assignees sequent to the under an Insolvent Act, of which he took the benefit subsequent to the lease, both claiming the rent; and the Lord Chancellor (Lord Eldon) sustained the bill. 5. Where one claimant seeks a certain rent from the tenant in possession, and the other unliquidated damages for use and occu- pation, he cannot make them interplead (3). 6. Where L., the agent at Belfast for the owner of a ship char- tered to that port, had acquired equitable charges on the freight and cargo, and was also agent for the charterers and consignees ; and on the arrival of the vessel at Belfast possession was taken by L., and the cargo was landed and stored with the Belfast Harbour Commissioners, wharfingers, in L.'s name ; and after the landing of the cargo the Marine Investment Company, who claimed to be assignees of the ship under a bill of sale, served a notice on the Harbour Commissioners (purporting to be a notice under 25 & 26 Vict. c. 63, s. 68, the Merchant Shipping Act Amendment Act 1862), cautioning them against allowing the cargo to be removed from their wharves or warehouses until the lien for freight claimed by the company had been discharged ; and the Harbour Commis- sioners having thereupon refused to deliver any portion of the cargo to L., an action for the recovery of the cargo was brought against them by L., in the Court of Common Pleas in Ireland, and an application for an interpleader was made to the Court of Common Pleas by the Harbour Commissioners ; and on a motion to shew cause, the Court differing in opinion, no rule was made on the motion, and an interpleader suit in Chancery was then com- (1) Dungey v. Angove, 2 Ves. Jun. (2) 9 Ves. 107. 304, 2nd Ed. ; 3 Bro. 0. 0. 36 ; et v. (3) Johnson v. Athmson, S Anstr. Smith V. Target, 2 Anstr. 529 ; John- 798. son V. Atkinson, 3 Anstr. 798. 632 INTEEPLEADBE SUITS. Paut I. menced ; upon a motion for an injunction to stay tlie proceed- ^ Se™ 3a ^" ii^gs at Law, the Court held, that the case was properly the sub- ject for an interpleader suit, notwithstanding the provisions of the 25 & 26 Vict. c. 63, and that the jurisdiction of the Court of Chancery was not affected by the decision of the Court of Common Pleas (1). 7. Where a suit had been instituted in the Court of Admiralty, by arrest of a ship, on behalf of a person claiming to be the owner of goods, on the ground of breach of duty on the part of the master in not delivering the goods to him, and a like proceeding had been instituted in the same Court, by another claimant, in respect of the same goods ; Vice- Chancellor Sir W. P, Wood, upon a motion on behalf of the plaintiff to restrain further proceedings, said that he very mucli doubted whether in such a state of things as arose from the above circumstances a question of interpleader would arise as regards the captain of the ship, on the ground that the proceedings were not against him but against the ship — that is to say, the loss would fall upon the owners of the ship ; and that the Court of Admiralty had jurisdiction to decide the whole question ; the Vice- Ohancellor said, upon the whole, he thought it was not a case for interpleader, and refused the motion with costs (2). Proceedingsin 8. Proceedings in one suit (in this case not an interpleader suit) Equity re- ^^ Equity were restrained by an injunction obtained in another strained by an g^^^^ being an intei-pieader suit ; and where there are two claimants obtained in to a fund, and one files a bill against the stakeholder without another and t ■ ^ t interpleader makmg the Other a party, the stakeholder may file an mterpleader ™' ■ bill, and restrain the proceedings in the former suit ; and so he may obtain in the interpleader suit an injunction extending as well to the prior proceedings in Equity as to proceedings at Law (3) ; and in Warrinffton v. Wheatstone (4), it was also held that it is no objection to a,n interpleading bill that a suit (here also not an inter- pleader suit) by one of the claimants of the fund is pending. 9. In case of a sale by auction, if both parties claim the deposit, the auctioneer may file a bill of interpleader, and pray for an (1) Belfast Ilarhuur Commissioners (3) Prudential Assurance Cmnpauy V. Laiuther, 16 Ir. (^li. Rep. 34. v, Thomas, L. E. 3 Cli. 74 ; 37 L. J. (2) Sahlicich v. liussell, h, R. 2 Eq. (Ch.) 202 ; lU W. E. 470, 441 ; 14 W R. 913. (4) Jac. 202. miEEPLEADEE SUITS. 633 injunction, which will be granted upon payment of the deposit into Fjlrt i n i /I \ Chapteb m. Court (1). gj,„ 36. 10. The plaintiff's affidavit of " no collusion" in an interpleader The lamtiTs suit cannot be rebutted before the hearing by a counter affidavit ;,a£adavit of •,..».. -11 -1 T 1 prt T • no " collusion" and the plamtm is entitled, notwithstanding such counter affidavit, in an inter- to an order for payment of the money into Court, and for an in- ^nnoTl^'re- junction ; and the plaintiff's right to this protection is not lost by |i!'**f'^ before his fih'ng additional affidavits to verify the statements in the bill. But in a case where a charge of collusion was made, the Court put the plaintiff under an undertaking as to damages, and the Lords Justices Selwyn and Giffard reversed an order of Vice- Chancellor Malins, made upon such counter affidavit. This was an interpleader suit against H. J. K. and W. S. W., stating that previously to June, 1866, the plaintiff had employed the defendants, and their partner G. F. E., as his solicitors ; and that the bill of costs due from" him to them had been taxed under an order of the Master of the Rolls at the sum of £570 5s. 7d. ; and that each of the two defendants claimed the amount due, but that G. F. E. made no claim to it ; and prayed that the two defendants might interplead, and might be restrained from suing him for the amount due ; the bill was accompanied by the usual affidavit of the plaintiff, that there was no collusion between him and either of the defendants ; after the defendants to the bill had appeared, the plaintiff, on the 9th of February, 1869, moved for leave to pay the sum of £570 5s. 7d. into Court, and for an injunction in the terms of the prayer ; this motion was supported by an affidavit by the plaintiff, verifying the facts stated in the biU; the defendant W. filed an affidavit in answer, stating that the plaintiff was acting in collusion ; and the Vice-Chancellor, on reading these affidavits, refused the motioa (2). 11. The owner of lands subject to a charge is entitled to file a Owner of , .,, . . „. . 1 . Tin ,. lands charged Dili against persons setting up conflicting claims to the benent ot may file a bill the charge, to have their rights declared, and the estate discharged, flicUng^claims. on payment of the money charged ; and such a bill is not a bill of interpleader, so as to require an affidavit of " no collusion" (3). 12. To obtain an injunction against a judgment, on the ground "Where there are several (1) Farehrother v. Prattent, 5 Price, (N. S.) 385 ; 17 W. R. 479. 303. (3) Vyvyan v. Vyvijan, 4 De G. F. (2) Manby v. Eohinson, L. Pi. 4 Cb. & J. 183, 34T ; 38 L. J. (Ch.) 309 ; ^0 L. T. 634 PEEE0GATIVE8 OP THE CROWN. PabtI. claimantaa that the Complainant cannot safely pay it, there being OiiAPTEK III. bill of inter- i i- x i u u ^i \-u t • 4. 1 A Sect. 36. jDieader may Several claimants, he should nle a bill ot interpleader, i:^-uictiou "" and pay the debt into Court for the party shewing against a himself entitled thereto (1). judgment. Sect. 37. Prerogatives of the Croum. 1. Where, upon an information on behalf of the Crown, praying for a declaration that the defendants M. had not any right or title to grant gales or leases within any part of the Forest of Dean, or to exact gale fees or rents in respect thereof, and that they might be restrained from making or granting any more such grants or leases ; and that the defendant Morse (a galee or licensee of M.) might be restrained from continuing the quarry (which had been galed to him by M.), and for an account; the defendants M. claimed, as owners in fee of a manor which was without the limits of the Forest of Dean, that the office of woodwards or foresters of B. Walk within the forest was annexed to the ownership of the manor ; and that, as such woodwards or foresters, they had a right to grant to persons called " free miners " gales or licenses for working stone within B. Walk, and to take gale rents, and apply them to their (the defendants') own pui'poses, without accounting to the Crown ; and the soil of B. Walk was in the Crown ; Vice- Chancellor Sir W. P. Wood held, that such a right could not be maintained, unless it was shewn that the grantees of the gales or licenses had a capacity to accept the same ; and that the 1 & 2 Vict, c. 43 extinguished the rights and capacities of the free miners ; and, further, that the ofSce of woodward, or forester of the Crown, even if grantable by the Crown in gross, could not have been assigned to a third person by any such grantee without a license from the Crown, founded on a return to a writ of ad quod damnum, being an office of trust ; and, setnble, that such an office could not be annexed to a manor (2), so as to pass to every one who, as grantee, devisee, or assignee, might become entitled to the manor; and that, even independently of the operation of the 1 & 2 Vict. c. 43, upon the alleged rights of the free miners, no right could ever (1) Foivkr V. Lee, \0 Gill. & J. 358 (Ami-.) (2) i Inst. 315, 316. PREEOGATIVES OP THE CEOWN. 635 have been established by any custom, however ancient, uniform, Paet I. and clear, to the exercise of the custom as now claimed by the seot. 37. defendants — viz., a right in one person to enter upon the soil of another person, and carry away portions of it ; neither can such a right be established by prescription, nor by any assumption of a lost grant ; and a claim which is radically bad in itself cannot be substantiated by any Statutes of Limitation ; and the Vice- Chancellor made the declaration and granted the injunction prayed for (1). 2. Foreigners in this country, as well as British subjects, are liable to actions for the injury done by their infringing upon the sole and exclusive right granted by the Crown to patentees of inventions, in conformity with the law and constitution of this country ; and the powers of the Court of Equity, which are founded on the insufficiency of the legal remedy, must be enforced against them, as well as against British subjects ; and, therefore, in Caldwell v. Vawvlissengen (2) the Court granted an injunction against subjects of the kingdom of Holland, to restrain them from using on board their ships, within the dominions of England, without the licence of the plaintiffs, an invention to the benefit of which the plaintiffs were exclusively entitled under the Queen's patent. The Yice-Chancellor said that the prohibitory words of the patent (which, it was said, were addressed only to the subjects of the Crown) are in aid of the grant, and not in derogation of it ; and further ruled that, where a legal right exists, the Court cannot refuse to interfere for its protection upon grounds which depend exclusively on considerations of national policy ; and that it is for the Legislature, and not for the Courts, to deal with that question (3). (1) Att.-Qen. v. Matlnas, 4 K. & J. refemng to the case of Caldwell Y.Van- 579 ; 4 Jur. (N. S.) 628. vlissengen (supra), and observing that (2) 9 Hare, 415 ; v. S. C. pp. 247, it was not for that Court to question 248, ante ; and the 15 & 16 Vict. c. 83, the correctness of the decision, and that also cited there. that Court must interpret the patent (3) Vide Brovmv. Duchesne,lQ How. laws of the United States with reference 183, 198 (Amr.). In this case it was to their own constitution and laws and held by the Supreme Court of the judicial decisions — that the rights of United States, affirming a judgment of property and exclusive use granted to the Circuit Court of the United States a patentee did not extend to a foreign for the district of Massachusetts — after vessel lawfully entering one of the ports 636 PEEEOGATIVES OF THE CEOWN. Part I. 3. In Smith v. Earl of Stair (1) the officers of state in Scotland Sect. 37. obtained a judgment on interdict against an individual who had, ~ by erecting a wall, encroached on the seashore ; but the suit being instituted by them solely to protect the public right, al- though the judgment of the Court below, upon being appealed against, was affirmed, yet it was affirmed without costs. 4. In Whitehouse v. Partridge (2), Lord Chancellor Eldon said, that he recollected no instance of an injunction against an extent. A grant by 5. A grant made by the Crown to the inhabitants of a parish is the inhabit-" S^^^> though such grant cannot be made by private individuals. ants of a ^jj(j grants by the Crown in derogation of forestal rights are good but not a grant grants, though they would not be good except in derogation of individual. such rights. And the Master of the Kolls, Lord Romilly, over- Crown inde- '■'ilsd a demurrer to a bill by the poor of a parish, claiming a rogation of right by grant from the Crown to cut wood on waste lands within forestal righta, o J S, are good. A a royal forest for their own use, and for sale to the other inhabit- Crown to the ^iits of the parish ; but, semhle, such a claim would be bad if ^arish^toout *ll®g6i'^3^^^ with his own, or where a man who has undertaken to keep the property with property of another distinct mixes it with his own, the whole must, his own, he IS ^ "^ ■' chargeable both at Law and in Equity, be taken to be the property of the whole. principal or other party, until the agent puts the subject under such circumstances that it may be distinguished as satisfactorily as it might have been before the unauthorized mixture, and the agent is chargeable with the whole, except what he can prove to be his own ; and in this instance (the case of a breach of the terms upon which the Court dissolved an injunction against continuing to work a lead mine) the inquiry was directed with costs ; and the Court refused, in this case, a prospective direction to admit books not legal evidence, though usual in a fair case, as where, from want of notice of an adverse claim, a strict account cannot be given — merely giving liberty to apply upon any question of evidence (2). A general 3. Upon an action at Law being brought to recover the produce an a^CT.t'of ^ ^f the Sale of some foreign specie remitted by merchants abroad mutual deal- ^^j^g plaintiffs at Law) to agents in London (the defendants at between him- Law), and the agents jSling their bill, alleging generally that the cipai; will not plaintiffs had frequently been employed as agents to the defendants, account and ^^^ *^^^ there were mutual dealings and transactions between an injunction them, and praying that an account might be taken of them, and against an ' r j o ^ o action. for an injunction to restram the action, a demurrer was allowed (3). Alexander, L.O.B., said : " I think the facts charged in the present bill are too loose and vague to support it, not even stating that there are unsettled accounts, or that a balance is due to either party ; and if these particular charges were struck out, (1) Spurer Lord Kingsdown) if a man, under a verbal agreement with a landlord for a certain interest in land, or under an expectation created or encoura,ged by the land- lord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation ; but under the special circumstances of the case, the bill was ordered to be dismissed, without costs. 9. Where, in 1865, B., by a written agreement, let to M. a farm, B. "giving him a lease of three lives or thirty- one years," (1) Eamsden v. Thorntwi, L. R. 1 (3) Thornton and Dyson y. Ramsden, E. L. 129. 4 Giff. 519. (2) lb. 656 LANDLORD AND TENANT. Part I. and tlie agreement did not contain any words of limitation, and no Sect. 5. lease was ever executed, but the lessee entered and remained in possession till he died intestate, and his heir then entered ; and the personal representative of the lessee brought ejectment; and the heir filed a bill for an injunction, and prayed that a lease should be executed to him, his heirs, executors, &c., for three lives to be named by him, and for a concurrent term of thirty-one years ; the Court in Ireland held, that, under the circumstances, the personal representatives took, under the statute (1), the interest of the lessee (2). Though no 10. Where a lease restricted the use of the premises to " the pariS)ie injury, regular dry-goods jobbing business," and the lessees commenced Equity wiU ggHing goods at auction therein, it was held, that although there using pre- ^as no danger or irreparable iniury done to the lessor, nor any mises contrary . ° , ^ i,n, ,, to a restrio- nuisance at Law, yet it was a breach of the covenant, and that the lta"e. lessor could have an injunction (3). So, where A., a lessee, a drug- ^11 ^Ir^'n Si^*' ^it^ notice that the landlord will not let the premises for a both lessee bar-room, agrees to sub-let to B. for that purpose, and himself and his sub- -n ■ -n ■ i i » i -n /. leasee, where renews the lease, Lquity will restrain both A. and is. from using no«ce land- ^he premises for a bar-room (4). So the administrator of an in- loid will not solvent estate, having an undivided interest in a block of stores, let for a par- ' o j tioular pur- may enjoin a lessee of one of them from a use injurious to the Equity will iucome of all (5). But it is held that Equity will not enjoin the of°premises for ^^^e of leased premises for one purpose merely because the lease one purpose, contains a provision that they are to be used for another, unless merely ■■• _ ■' because the it is also provided that they shall be used for the latter exclu- lease contains . , a provision SlVely (o). that they are anotter '''^ '"' <^^) ^"^^ '^ ^^- ^' °- ^^' ®- ^ ' "^^ ^^^ Steward v. Winters, 4 Sandf. Cli. 24 Vict. c. 154, s. 9 ; and the English 587 (Amr.) statutes, 29 Oar. 2, c. 3, s. 12 (the (4) Farkliam v. Aicardi, 34 Ala. Statute of Frauds) ; 14 Geo. 2, c. 20, 393 (Amr.) s. 9 ; 1 Viot. 0. 26, ss. 3, 6. (5) lb. (2) M'Dermott v. Balfe, 2 Ir. Eq. (6) Brugman v. Noyes, 6 Wis. 1 Eep. 440. (Amr.) ( 657 ) Sect. 6. Husband and Wife — Widow — Illegal Cohabitation. PabtI. ChaptebIV. 1. Where by marriage articles it was agreed that the intended ■ wife's property, real and personal, should be settled upon her for life, " for her own absolute use and benefit, free from all marital control and liability," without any restraint on anticipation ; and by a subsequent deed (which was inoperative) the lady and her hus- band purported to settle the property with a restraint on antici- pation ; and she carried on the business of an hotelkeeper, and in so doing gave the plaintiff (a wine merchant) a bill of exchange accepted by her to secure a debt, and she was also possessed of some shares not included in the articles ; and the plaintiff dealt with her after her marriage on the same terms as he had done before it, and credited her as a feme sole ; and her husband became bankrupt, and the bill was dishonoured : the Lords Justices held, reversing a decision of the Master of the Eolls (who had decided that, so far as the articles were executory, the Court would restrain the lady from anticipation), that the restraint upon anticipation having been omitted, the Court would not construe the instrument as though the provision had been uninteutionally left out, but would leave the parties to the remedy by bill for the rectification of the marriage settlement, and that the life interest of the lady was liable to make good the debt incurred by her in the trade for which she bad accepted the biU (1). 2. Where a husband, seised in right of his wife, concurred with Acquiescence the other tenants in common in a partition of an estate and mines, ^^ ^ard amd but no fine was levied : and he died in 1828, after which his widow aUotment made durmg acquiesced in the arrangement, and took the benefit of it, and she her husband's and her lessee afterwards proceeded to get coal under the land concurrence, awarded to other parties, and defended that proceeding on the ^^^^ ® ground that the husband's acts were invalid, and that the parties were still tenants in common of the whole ; the Master of the EoUs, Lord Langdale, restrained her by injunction : in his judg- ment, his Lordship said, it appeared to him that the defendant, the wife, was, upon the death of her husband, acquainted with the (1) Symonds v. Wilkes, 11 Jur. (N. S.) 659 ; 13 W. E. 1026 ; 12 W. E. 541 ; 12 L. T. (N. S.) 598 ; 10 L. T. (N. S.) 153. 2 U 658 HUSBAND AND WIFE- WIDOW— ILLEGAL COHABITATION. PabtI. award and allotment, and that she considered the mines as well as ^'s™6!^' tlie surface to be included, and that she acquiesced in it, not only by admitting that she was not entitled to encroach upon the allot- ments of others, but by exercising an exclusive right to let the coal under her own allotment for her separate benefit ; and that she was not entitled, first, to avail herself of the award to exercise an exclusive right to get coal under her own allotment, and after- wards to reject the award, for the purpose of establishing a right to an undivided share of the coal under the whole district (1). Personal 3. Personal chattels bequeathed to a single woman for her sepa- qiieathed'to ^**® "^^' ^^'^ without the intervention of any trustee, cannot be seized single woman jjj execution by a iudgment creditor of an after-taken husband (2). for separate J J a , . , use cannot be 4. Where by a separate deed a husband had covenanted with execution by the trustees that he would not compel his wife to cohabit with him ■''^'^dT^'^'f ^y ^^y legal proceedings, and the trustees covenanted with the after-taken husband that she would not do the like ; and the husband corn- husband. ..i-i->- ri I- ■ ■ f ■ ^ menced a suit in the Divorce Uourt lor restitution ot conjugal. rights, this covenant being no defence in the Divorce Court to The Court ^^^ Suit ; Lord Chancellor Westbury held, reversing a decision of will restrain the Master of the Eolls, Sir J. Eomilly (made on a motion on suit in Divorce Court for re- behalf of the wife and her trustees to restrain her husband from conjugal prosecuting the suit), that the Court would restrain such a pro- rights^in viola- needing by injunction (3). "Where a husband had, in a separation nant. deed, agreed not to commence or prosecute proceedings in the contract can Divorce Court in respect of any cause of complaint which had defence uTthe ^^'i^en before the date of the deed, and had in the deed condoned Divorce Court, and forgiven every offence then committed, and afterwards corn- er is executed ,..,.. in ignorance menced a suit for obtaining a divorce, alleging that he executed adultery. the deed on the faith of his wife's assurance that she had not beeji guilty of adultery, which assurance he had subsequently discovered to be untrue : upon motion by the wife, in a suit for that pur- pose, for an injunction to restrain her husband from proceeding in the Divorce Court to obtain a dissolution of marriage, on the ground of a contract by the defendant to condone all former causes of complaint, and not to take legal proceedings in respect (1) Madm v. Vtevers, 5 Beav. 503. (3) Hunt v. Hunt, 31 Beav. 89 ; 8 (2) Newlands v. Pai/ntei; 4 My. & Jiir. (N. S.) 85 ; 31 L. J. (Ch.) 161 ; Cr. 408. 10 W. R. 215 ; 5 L. T. (N. S.) 778. HUSBAND AND WIFE- WIDOW— ILLEGAL COHABITATION. 659 thereof; Viee-Chancellor Sir R. Malins held, that as the contract Paet. I. might he set up by -way of defence in the Divorce Court, and as it secyi. 6. was executed by the husband in ignorance of the fact that his wife had committed adultery, and on her positive assertion of inno- cence, this Court would not interfere to stay proceedings in the Divorce Court (1). 5. When a Court of one country is called upon to enforce a contract entered into in another, it is not enough that the con- tract should be valid according to the law of the latter ; for if any part of the contract be inconsistent with the law and policy of the former, the contract will not be enforced, even as to another part of it which may not be open to this objection, and may be the only part remaining to be performed. Therefore, where an English- man married a Frenchwoman, and they resided in France, where their children were born, and suits were instituted between them in both countries, which were compromised by an agreement, of which part was that the wife would facilitate proceedings for a divorce, and another part was that one of the children should remain with his mother, and the third part related to the payment of an allowance to the wife ; the Lords Justices held, that even supposing the parties to be domiciled in France, and the agree- ment to be governed by French law, and to be valid according to that law, and to have been performed as to the parts which were invalid according to English law, it could not be enforced here as to any part of it (2). In this case the bill, filed by the wife, alleged that the plaintiff had in all respects performed her part of the agreement, but that the defendant, the husband, had refused to perform his part of it ; that he refused the plaintiff all access to the children, though she had frequently desired to visit them ; and that he had paid no part whatever of the annuity, of the costs incurred by the plaintiff, or of the sum on account of her debts ; and the bill prayed specific performance of the agreement, that the plaintiff might have access to her children at all reasonable times, that an account might be taken of the arrears of the allowance stipulated for by the agreement, and that the defendant might be (1) Brown v. Srown, L. E. 7 Eq. (2) Hope v. ffope, 8 De G. M. & G. 185; 38 L. J. (Ch.) 153; 19 L. T. 731; 22 Beav. 351. (N.S.)594; 17 W. R. 98. 2 U 2 660 HUSBAND AND WIFE— WIDOW— ILLEGAL COHABITATION. Part I. ordered to pay such arrears, and to give security for future pay- Seot. 6. ' ment, and to pay the costs of the suit. The defendant demurred to this bill for want of equity, and the Master of the Eolls over- ruled the demurrer (1). An appeal by the defendant came on to be heard before the Lords Justices in July, 1856, and their Lordships having intimated an opinion that if the demurrer were allowed, leave must be given to amend, it was arranged that the demurrer should be allowed, without prejudice to any question, and with leave to the plaintiff to amend her bill, and that if the defendant should demur again, the demurrer should be brought directly before the Court of Appeal ; the bill was accordingly amended, and the defendant again demurred. Lord Justice Knight Bruce, in his judgment on the demurrer, which was allowed, said that it was his opinion, and he believed that of the Lord Justice Turner, that by reason of the want of consideration, and not for that reason only, this contract, if treated as an English contract, was one on which this Court could not act ; and that he, Lord Justice Knight Bruce, was certainly not of opinion that the stipu- lation in the document respecting the infant, and ward of the Court, and the article containing the word " facilitate" {i.e., as to the divorce), could be rendered sustainable in an English Court of justice by ascribing a French domicil, a French character, and, if he might so express himself, French intentions to the document- Lord Justice Turner, in his judgment, said : " In the course of the argument before us, my learned brother expressed our united opinion that if the law of this country only was to be taken into consideration in determining the case, the agreement could not be supported, and the demurrer must consequently be allowed, and we stopped the reply upon that point. The further con- sideration which I have since given to the subject has confirmed me in that opinion." And further on he said : ." Upon carefully examining the allegations of this bill, on which alone the case, being before us upon demurrer, must be decided, T think it far from clear that the bill alleges such a case as would in strictness warrant us in taking the law of France into consideration. But I should not feel satisfied to dispose of the case finally upon that ground, and I think it better, therefore, to consider it upon the (1) Hope V. ffcj^e, 22 Beav. 351. HUSBAND AND WIFE -WIDOW— ILLEGAL COHABITATION. 661 assumption that the law of France is to be taken into account, „ Part I. . . . Chaptjse IV. and that the agreement in question would, according to that law. Sect. 6. be capable of being enforced. ,. . . The question is, whether, upon the assumption which I have stated as to the French law being taken into account, the bill can in other respects be maintained. I am of opinion that it cannot, and upon these grounds : I think that when the Courts of one country are called upon to enforce contracts entered into in another country, the question to be con- sidered is not merely whether the contract sought to be enforced is valid according to the laws of the country in which it was entered into, but whether it is consistent with the laws and policy of the country in which it is sought to be enforced. A contract may be good by the law of another country, but if it be in breach' fraud, or evasion of the law of this country, or contrary to its policy, the Courts of this country cannot, as I conceive, be called upon to enforce it. Now, there are two provisions of this agree- ment which, as it seems to me, are contrary to the law and policy of this country. By art. 1 of the agreement, one of the children is to remain under the care of the plaintiff, the mother. By art. 3 of the agreement, Mrs. Hope, the plaintiff, undertakes ' not to oppose the suit for a divorce, instituted against her by Mr. Hope in the English courts, but, on the contrary, to facilitate the obtaining such divorce.' Are these provisions consistent with our laws and policy ? The first of them is in contravention of the order of the Lord Chancellor, stated in the bill (made in a suit on behalf of the infant children). It is not only in contravention of that order, but, as I apprehend, is in contravention also of the settled law and policy of the country. The law of this country gives to the father the custody of the cliildren, and the control over them ; and it gives him that custody and control not for his own gratification, but on account of his duties, and with reference to the public welfare. Then as to the 3rd article of the agree- ment. There is nothing which the Courts of this country have watched with more anxious jealousy — and, I will venture to say, with more reasonable jealousy — than contracts which have for their object the disturbance of the marital relations. The peace of families — the welfare of children — depends, to an extent almost immeasurable, upon the undisturbed continuance of those rela- 6e2 HUSBAND AND WIFE— WIDOW-ILLEGAL COHABITATION. Pabt I. _ tions ; and so strong is the policy of our law upon this subject, Sect. 6. " that not only is marriage indissoluble, except by the Legislature (1), but divorces a mensd et ihoro are granted only in cases of cruelty or adultery. But what is this article of the agreement? — that the wife shall not oppose the husband's suit for a divorce, but, on the contrary, shall facilitate the obtaining it. I can conceive nothing more contrary to the policy of our law than this pro- vision of the agreement. It is, as it seems to me, repugnant to the law, both as to the object which it has in view, and the means by which that object is to be effected. Lastly, it was urged on the plaintiff's behalf that, whatever objection there may have been to this agreement in its inception, what remains to be performed is legal and unobjectionable ; but to hold that an agreement so objec- tionable as that this Court would not perform it, can be rendered capable of performance by the objectionable parts of it having been carried into execution, is a doctrine to which I cannot assent " (2). 6. Where M. had given a bond and warrant of attorney to secure the repayment of a sum of money, and judgment had been entered up, but not executed ; and the bond and warrant of attorney came into the possession of L., as personal representative of the original obligee ; and she was on terms of affectionate friendship with M., and often said that he had been unfairly treated in being made to enter into these securities ; and L. had in early life received from the father of M. a conveyance of some property in India, and the deed of conveyance was expressed to be for a money con- sideration of 1000 rupees, but in truth the money consideration was, if any, a debt of 1200 rupees, and the rest was a purely volun- tary gift, and no money whatever passed when the conveyance was executed ; and M. was about to marry, and when his marriawe was in contemplation discussions arose about the bond and warrant of attorney ; and M.'s father told L. that he was advised, if she did not abandon the claim on the bond and warrant of attorney against his son, to execute a deed which would put an end to the con- veyance of this Indian property, as a voluntary conveyance made without consideration ; and in his depositions he said that L. pro- mised not to enforce the bond and warrant of attorney, if he would (!) And now by the Divorce Court, (2) Hope v. Hope, 8 De G. M. & G. instituted under the 20 & 21 Vict. c. 85. 731 . HUSBAND AND WIPE— WIDOW— ILLEGAL COHABITATION. . 663 abstain from interfering with the conTeyance ; and other evidence Part i. was given of directions by her, that she " had abandoned " the Sect. 6. claim, and of a promise, often repeated, that she would never trouble M. about it : — the House of Lords held that this promise, if it constituted a contract, was not a contract made in consideration of marriage, so as to bring it within the words of the Statute of Frauds (1). 7. In Wilson v. Wilson (2), it is quseried whether, as a rule of Equity, a Court of Equity can enforce by injunction a stipulation to live separate, or not to bring a suit for restitution of conjugal rights ; though it is held there, that undoubtedly it can enforce stipulations as to an arrangement of property, and as to forbear- ance from personal molestation ; and that the Court of Chancery has jurisdiction to enforce the specific performance of an agree- ment by which a person has bound himself to execute a deed, although such deed may be a deed of separation between himself and his wife. In this case, in the draft articles of an agreement, a mistake of a name had been made, and a bill was filed for the specific performance of those articles ; and the Court of Chancery, on a consideration of what appeared in the biU and answer, and a consideration of the articles themselves, directed the specific per- formance of them according to what appeared to be their plain intention ; and the House of Lords held that the decree of the Court of Chancery was correct (3). But as to the power of a Court of Equity to enforce by injunction the stipulations as to living separate, and not suing in the Ecclesiastical Court for living separate, in Saunders v. Bodway(4:) — where, by a separation deed^ a husband had covenanted with his wife's father, that his wife, during her life, might live separate from him, that he would not sue her in the Ecclesiastical Court for living separate, that he would not molest, &c. her, nor claim any of her property ; and her father contracted with the husband to maintain her and indemnify him — upon a bill by the wife, and the personal repre- sentatives of the father, praying an injunction to restrain the defendant (the husband) from compelling the wife to cohabit with him, and from molesting, disturbing, or troubling her for living (1) Jorden v. Monei/, 5 H. L. C. 185. (2) 5 H. L. 0. 40 ; 23 L. J. (Ch.) 697. (3) lb. (4) 16 Beav. 207 ; 16 Jur. 1005. 664 HUSBAND AND WIPE— WIDOW-ILLEGAL COHABITATION. Past I. separate and apart from him ; and also from molesting, disturbing, Chapter IV. . , , . , , , „ Sect. 6. o^" troublmg any other person or persons whomsoever, tor receiving, harbouring, or entertaining her ; and from (without her consent) visiting her, or knowingly going into any house or place where she might dwell, or sending any letter or message to her ; and from endeavouring or making any attempt to get possession of her person, and from in any manner molesting or annoying her ; and upon a motion made for an injunction, in the terms of the prayer of the bill, the Master of the Kolls, Sir J. Komilly, said : " I think this is a case in which the plaintiffs are entitled to an injunction in the terms of the deed. It is perfectly true (as Mr. Eogers ob- served) that this Court does not interfere with any question respecting the restitution of conjugal rights, and leaves such questions entirely to the Ecclesiastical Court, but this Court deals with covenants which parties enter into ; and if a person chooses to enter into a covenant restraining himself from proceeding in a matter in respect of which this Court may not have jurisdiction, yet having jurisdiction in matters of contract the Court will restrain him from violating his covenant. All that I have, there- fore, to consider is, whether this is a valid deed, and executed by the husband, and if so, whether he has done acts in violation of it. If he disputes the validity of the deed, he may institute any suit he may think lit in this Court to set it aside ; but this Court has, undoubtedly, in a great number of cases, held that deeds of separation entered into between the husband and wife, with the interposition of trustees, who covenant to indemnify the husband against his wife's debts, are such as it will enforce. The cases are numerous on the point." But he added : " It appears to me that the bill ought properly to seek the execution of the trusts of the deed, and the performance of the covenants, one of which, on the part of the husband, is not to do those acts which by the affidavit it appears he is now doing. The bill ought also to state that this is not a covenant which expired with the death of the father of the lady. By the deed it appears to be a covenant which binds his heirs and executors. Treating it, as I think I am entitled to do, as a bill for the execution of the trusts and the performance of the covenants of the deed, and being of opinion that the husband has violated them, I must restrain him from so doing, and there must HUSBAND AND WIFE— WIDOW— ILLEGAL COHABITATION. 665 therefore be an injunction in the terms of the deed (1). And in Pabt i. WorraU v. Jacob (2), the Master of the Eolls, Sir W. Grant, said °^b™6^^' he apprehended it to be then settled that this Court will not carry into execution articles of separation between husband and wife; but that it had been held that engagements entered into between the husband and a third party shall be yalid and binding, although they originated out of, and related to, an unauthorized state of separation, in which the husband and wife had endeavoured to place themselves. And in Frampton v. Fromvpton (3), it was held by the Master of the Kolls, Lord Langdale, that a deed of separation between husband and wife, containing no covenant on the part of a trustee to indemnify the husband, or other valuable consideration, is not on that account void as against the husband's estate. In this case the husband, by the deed, assigned the dividends of certain funds to trustees for the benefit of the wife, and he covenanted that she might live apart from him ; and the wife agreed to accept the provision in lieu of alimony, dower, or any other claim on the husband, and to exonerate him from her debts, and not in any way to disturb him; the Master of the Eolls, in his judgment, observing that " it would scarcely be just to say, that although a voluntary trust may be binding in other cases, it shall not be so in the case where a husband has, by creating such a trust, prevailed upon his wife to live apart from him, and waive the enforcement of her conjugal rights." In Legard v. Johnson (4), it was held that the Spiritual Court (now the Divorce and Matrimonial Court, 20 & 21 Vict. c. 85) had exclusive cognizance of the rights and duties arising from the state of marriage, and that a Court of Equity therefore had no jurisdiction upon a contract for separa- tion between husband and wife simply, much less where it will affect a purchaser or a creditor ; but that the jurisdiction holds in special cases — as where a third party covenants to indemnify the husband against the wife's debts, or a fortune accrues to the wife after separation, or the property is the subject of a trust. The Lord Chancellor, in his judgment, said : " Those cases where the Court had acted at all stand under three heads. Where a third party had intervened, and it was not only between the husband and (1) See also Warrender v. Warrender, 2 01. & P. 488. (2) 3 Mer. 269. (3) 4 Beav. 287. (4) 3 Ves. 352 666 HUSBAND AND WIPE— WIDOW— ILLEGAL COHABITATION. Part I. wife, a third party binding himself to indemnify the husband Sbot. 6. ' against the debts of his wife, the interest of that party raises a consideration for that party, between whom and the husband there might be a contract, and with regard to whom he might bind that party to himself: that was the case of Seelmg v. Crawley (1). The other cases are, where a fortune accrued to the wife after separation, and an application was made to this Court upon a very plain ground, that some provision should be made for her out of a fortune coming under those circumstances. The principle is plain : if it happens from the situation of the parties that they cannot enjoy in common that which should maintain both, it would be very hard that the party from whom it moves should lose, and the other should gain the whole benefit (2). Another case in which the Court may take into its consideration the rights and duties arising from the relation of marriage, is where the property is only to be sued in this jurisdiction — where a trust is created, and there is no coming at it by the Common Law : that was the case in Sidney V. Sidney (3), and the other case quoted in the note upon that case — where, as a ground to give effect to articles made upon marriage, this Court considered the estate vested according to the articles, and the husband having used the estate as he ought not to have done, and as he could not have done in point of law if the articles had been completely executed prior to the marriage." 8. Where the plaintiff had married the defendant, an alien, and afterwards, by a deed of separation not acknowledged, had con- veyed real and personal estate to a trustee to pay an annuity to the defendant, and the trustee had covenanted to pay the annuity, and the plaintiff to indemnify the trustee ; and upon an action being brought against the trustee by the defendant, the plaintiff filed a bill for an injunction, and to set aside the deed, under which she insisted that the defendant, as an alien, could take nothing, and that the marriage was not legal according to the law of Guernsey, where it was celebrated ; and that she had executed the deed supposing the defendant to have legal rights over her property, and that the deed was not acknowledged: the Court (1) 2 Vern. 386 ; et v. Angier v. (2) Vide Ball v. Montgomery, 2 Ves. Angier, Free. Ch. 496. 191. (3) 3 P. Wms. 269. HUSBAND AND WIPE— WIDOW— ILLEGAL COHABITATION. 667 refused to continue the injunction to the hearing on any of the Pakt I. grounds except the last (1). But, semhle, the plaintiff having sect. 6. denied the marriage, and covenanted to indemnify the trustee, could not rely on the deed not being properly acknowledged (2). 9, Where husband and wife, who were separated, entered into an agreement in writing, providing for their living together again, and stipulating that in the event of a future separation, for a par- ticular cause, the wife should receive the income of her own fortune, which her husband was entitled to receive, and that her mother should indemnify him against her debts; and they after- wards separated, for the cause referred to by the agreement, and the wife obtained a divorce in the Ecclesiastical Court, and a sen- tence for permanent alimony to an amount exceeding the income of her fortune, and that alimony was regularly paid by the husband, and he received the income of her fortune, and the wife accepted a bill of exchange in favour of a creditor of her own ; in a suit by that creditor, an injunction was granted to restrain the husband from paying to the wife the annual amount of the income of her fortune, as the validity of the agreement for future separa- tion under which she was entitled to such income was not in dis- pute between the husband and wife (3). But the Lord Chancellor, Lord Cottenham, said that the question of the legality of such an agreement as providing for a future separation was dijBBcult, and of too much importance to be disposed of on an interlocutory applica- tion (4). 10. The Court will not interfere either to compel or restrain the The Court will . not mteriere payment of alimony, as such, except so far as to grant a writ of on the subject ne exeat against the husband. The Lord Chancellor said no case ment of had been referred to in which this Court had exercised its jurisdic- a„^°°xcept tion over alimony, except in granting writs of rae exeat (5). *« g^^ant a ne exeat against husband. 11. Where the husband's executors were sued at Law for goods No injunction bought by the wife in her husband's lifetime, while she lived sepa- afaSst bus™ rate and had a separate maintenance, and this, as alleged in ttie ^j'^'^fo/^oiX' plaintiff's bill, was known to the tradesman who sold the goods ; supplied to T 1 T T wifebytrades- upon a biU brought by the executors, alter a verdict, to be relieved man knowing (1) Bunmoncel v. Dunmoncel, 13 Ir. (3) Vandergucht v. De Blaguiere, Eq. Eep. 92. 5 My. & Or. 229 ; 8 Sim. 315. (2) lb. (4) lb. (5) lb. 668 HUSBAND AND WIFE-WIDOW— ILLEGAL COHABITATION. Part I. she was living against the action, an injunction was denied, as the Chaptbb IV. separate -with n , . . „ , , t i i j j? Shot. 6. separate main- allegations, if true, would have been a proper aeience tenance. ' ^^ ^^^ (j^^ 12. Where A. before marriage, in consideration of the same and a portion with his intended wife, conveyed lands to trustees, in trust to pay £100 per annum to his intended wife for her separate use; and she, many years after her marriage, upon disputes between her and her husband, left him and went abroad ; and the trustees brought ejectments to recover the terms in order to pay arrears of the annuity, and the husband brought his bill for an injunction to ■ stay the proceedings in ejectment : Lord Chancellor Hardwicke was of opinion he could not relieve against the payment of the annuity, notwithstanding the husband by his bill offered to receive his wife again and pay her the annuity, if she would live with him ; but directed an account, and on payment of the arrears of the annuity, the injunction to be continued, or otherwise dissolved; and if default in the growing payments, the wife to be at liberty to apply (2). 13. Where, in a separation deed, the husband covenanted with the trustee to allow to his wife £50 a year for her support, he being indemnified against all debts and liabilities on her account, and it being agreed on her behalf that she would not in any way endeavour to compel the husband again to live with her, or to allow her " any further, or greater, or other support, maintenance, or alimony " than the amount of £50 ; Vice-Chancellor Sir W. P. Wood held that, in the absence of any act shewing an undoubted and unqualified compromise of herself by some act of acceptance by the wife of the provisions of the separation deed, or of any attempt to enforce it against her husband, the Court would not, upon an interlocutory motion to restrain the prosecution of a suit for judicial separation and proceedings for alimony, restrain her from any proceeding in the Divorce Court, in the suit there, for the purpose of obtaining alimony pendente lite ; but the Court put her under an undertaking to deal with any order the Divorce Court might make as to alimony as this Court should direct, and (1) Ferrars v. Ferrars, 1 Vern. 71, being good at Law, cited in a note to 2nd Ed. ; sed vide Marshall v. Sutton, the case in Vernon. 8 T. E. B. R. 545, as to tlie defence (2) Moore v. Moore, 1 Atk. 272. HUSBAND AND WIFE— WIDOW— ILLEGAL COHABITATION. 669 upon that undertakidg the motion to stand over until the hearing Paet I. of the cause or further order. The Vice-Chancellor said there was ^°se™*6^^' no covenant in the separation deed that she would not sue for a judicial separation, so that the only question before him was, as to the application for alimony pendente lite (1). 14. Where a deed, made without any consideration, was executed by a husband, by which property was conveyed by him to trustees for the benefit of his wife, one of the provisions being an annuity for her in case she and her husband should cease to cohabit ; and the deed also contained a covenant by the husband to pay costs which had been incurred by a solicitor (who prepared the deed and was one of the trustees) for the wife, and those costs included the costs of certa.in proceedings in the Ecclesiastical Court which had been instituted by the wife for the purpose of obtaining a separa- tion from her husband ; and it did not appear that any definite in- structions for the preparation of this deed were ever given by the husband, or that its effect was ever properly explained to him by the solicitor ; the Court — upon the ground that the defendant, the solicitor, being at the time of the execution of the deed in the posi- tion of solicitor to the plaintiff (the husband), it was his duty to advise the plaintiff that it was optional whether he would or not execute the deed and the agreement, and the deed purporting to be in pursuance of the agreement, and being, so far as it was an agreement between the husband and wife, altogether void at Law (Turner, L.J.) ; but that no such advice appeared to have been given by him ; and upon the ground that the deed was a voluntary deed, and without any valuable consideration ; and a deed by which a husband makes a provision for his wife in case of a future sepa- ration, is radically defective — held, that this deed must be set aside, and that a reconveyance of the property must be made by the trustees. The solicitor, however, having been in possession, as trustee under the deed, of some property of the wife, an account was directed of the rents received by him, and of the sums properly expended by him thereout ; he, however, not being allowed any costs secured to him under or by virtue of the trusts of the deed (2). (1) Williams v. BaUy, L. R. 2 Bq. 138 ; affirming S. C, 35 Beav. 329; 14 731. W. E. 381. (2) Procter v. Robinson, 15 W. E. 670 HUSBAND AND WIFE— WIDOW— ILLEGAL COHABITATION. PabtI. 15. In Middlefon v. Middldon(l), Lord Chancellor Eldon re- ChAPTEB IV. » , ... . \ -, 1 n J.- \.- Sect. 6. lused an injunction to restrain a husband from preventing nis Iniunotion life's Solicitor and friends from having access to her (she being refused to confined by dangerous illness in his house), to enable her to execute restrain hus- jo /' band prevent- a deed of appointment under a power in her marriage settlement, solicitor, &o., it not being proved that she had given instructions for such a deed; toher^T'"' ^^^ t^e Lord Cliancellor said he doubted whether he should inter- enable her to fere even if that were certain, and that there had been many cases execute an appointment, where persons had been prevented from executing an instrument, of instruoti^s ^iid the Court had considered and treated it as if it had been de'e™*''^ * executed (2) ; but, here, suppose the lady should die without exe- cuting the deed, would it be possible for the Court to consider it done, M'hen it does not appear she gave instructions for it ? 16. Where the plaintiff cohabited with M. S., a married woman, and in consideration of her agreeing to cohabit with him he executed a deed, whereby, for the consideration therein mentioned, he granted to a trustee for her an annuity, to commence on his death, marriage, or withdrawing his protection from her, and cove- nanted to charge any land that he should become possessed of with the annuity j and for further securing the annuity he executed a bond, in the penalty of £1000, to the trustee, and gave a warrant of attorney to enter up judgment against him on the bond; and judgment was entered up against him at the suit of the trustee for £1 000 and costs ; and some years afterwards the plaintiff married, previously to which he had put an end to his intercourse with M. S., and, having been advised that the annuity deed and collateral securities, which he stated to have been obtained from him for the consideration of future cohabitation, were not binding upon him, he refused to pay the annuity ; in consequence of which M. S., in the trustees' name, brought an action against him on the judgment ; and the bill prayed that the annuity deed and collateral securities might be declared void, and be delivered up to be can- celled, and that the trustee might enter up satisfaction on the judgment, and then the action might be stayed ; a general demurrer by the trustee was allowed (3). The Vice-ChanceUor, Sir L. Shadwell, in his judgment, said it seemed to him to be plain, upon (1) 1 Jac. & W. 94. Waltham's will), stated in 11 Yes. 638. (2) Vide Luttrell v. Olmins (Lord (3) Smyth v. Oriffin, 13 Sim. 245. HUSBAND AND WIFE- WIDOW— ILLEGAL COHABITATION. 671 what was stated in the bill as to the contents of the annuity deed, Pabt I. Ottaptfr I'V the bond, and warrant of attorney, that upon the face of them they g^oT. 6. were given for an unlawful purpose, and would be held void at Law, and that the case therefore would fall within the principle adopted by Lord Chancellor Cottenham in Simjason v. Lord Howden (1). In Simpson v. Lord Howden, Lord Cottenham held that there was There is no no jurisdiction in Equity to order a legal instrument to be deli- Equity to vered up, on the ground of illegality which appears on the face of "^j^^mt to the instrument itself. In Jones v. Lane (2) Baron Alderson savs : be delivered ^ . ' up on ground " The result of an examination of the authorities seems to be, that of illegality if a party has wrongfully obtained possession of a bill of exchange, ^^ feceTf ^^" although under circumstances which would give a Complete defence ii»strui^nt, at Law, Equity will nevertheless interfere, if, from lapse of time, or lapse of time, death of witnesses, such defence is likely to fail ; but that if the defence is objection, being apparent on the face of the instrument, must ^ ^ ° ^' always be open to the defendant, whenever such action shall be brought against him, he is not entitled to apply to a Court of Equity for relief" (3). 17. In Power Y.8heil(4:), an injunction to restrain a widow from proceeding at Law to enforce her dower out of lands of inheritance, purchased from her husband during marriage, was refused, the purchaser having, " through negligence, neither insisted on having a fine, nor used common diligence to ascertain and preserve evi- dence that a jointure had been settled on her; but the widow having, in her answer to the original bill, admitted that her husband, previous to marriage, had executed an instrument settling an annuity of £150 on her in case she survived him, together with a collateral bond, but of which she knew not the contents, she was restrained from proceeding to execute her writ of dower till after she had answered the amended bill." But it was held that she was not, as a condition connected with the order, entitled to a receiver, which would be an equitable execution ; neither was she entitled to her costs at Law. 18. Where there is a bond debt to the wife, dum sola, and the husband recovers it at Law, Lord Chancellor Hardwicke said he (1) 3 My. & Or. 97. • (3) Vide Cooper v. Joel, 27 Beav. (2) 3 Y. & 0. 294. 313; Williams v. Roberts, 8 Hare, 315. (4) Beat. 48. 672 HUSBAND AND WIPE-WIDOW— ILLEGAL COHABITATION. Part I. did not know that this Court had ever granted an injunction ; for Sect. 6. the husband's suing at Law was yery proper, and therefore this Court left it to its natural course, without meddling with a legal question (1). This Court 19. This Court will not suffer the husband to take his wife's will not suffer . ., , , i i i • • i> xi husband to portion until he has agreed to make a reasonable provision lor the portirai'until wife; and where the Ecclesiastical Court has consented that a he has agreed husband should receive his wife's portion. Equity has in many to make a rea- _ _ r ' x j j sonablepro- instances granted injunctions to stay the proceedings there (2). 20. In Tayler v. AUen (3), a wife who was an executrix was restrained from getting in the assets of the testator, her husband being in the West Indies, and not amenable to the process of the Court of Chancery. Marriage 21. Where there was a bond in common form for payment of ceed fri™i°free money, but it was proved that the agreement was that the plain- choice, a,nd ^jff ^^}jg obligee) should either marry such a man, or should, by way against a of forfeiture, pay him the sum of money mentioned in the condi- marry a cer- tion ; the Court — upon a bill to be relieved against the bond (the pay asum°by defendant having obtained judgment on the bond) — decreed it to way of for- \)q oriyen up to be cancelled, and the defendant was also decreed to feiture. . . acknowledge satisfaction on the bond, it being contrary to the nature and design of marriage, which ought to proceed from a free choice, and not from any compulsion (4). A contract by 22. A contract by which a father deprives himself of aU his depriye^s him-'^ parental control over his child, is contrary to the policy of the self of parental \^^ qj^^ ^qJ^ . \^^^ g^pjj g^ contract is valid if the conduct of the control over ' his child is father towards his child is so gross that the Court would remove such'a con- the child from his custody. In this case, where a father, who had where^father's criminally assaulte'd his infant daughter, executed a separation conduct to deed, giving the sole control of his children to his wife, and the child IS so ' o o gross that father afterwards attempted to obtain possession of his daughter ; removeThild "P^ii ^ ^i^^ ^1 the mother, filed against her husband and the from his trustee of the deed to enforce the performance of the deed, and custody. ... 7 praying for an injunction to restrain the father from removing from, or prosecuting any proceedings to obtain their two children from her custody, or interfering with her in their management, (1) Jewson V. Moulson, 2 Atk. 420. (2) lb. (3) 2 Atk. 213. (4) Key v. Bradslmw, 2 Vera. 102, 2nd Ed. HUSBAND AND WIFE— WIDOW— ILLEGAL COHABITATION. 673 care, and protection, and also seeking to recover the arrears of an Part I. annuity covenanted to be paid by the deed — and for which deed ^seo™6. the Master of the Eolls, Sir J. Komilly, said there was sufScient consideration, and that it was executed by the trustee (the trustee entering into the usual covenant to indemnify against the wife's debts) — the Master of the Rolls granted an injunction, and an account as prayed, and ordered the defendant (the husband) to pay the costs of the suit ; and this decree was affirmed by the Lords Justices, except that the injunction was made until further order, instead of being perpetual (1). 23. A contract entered into and paid for by a wife, without the A contract by knowledge, but for the benefit, of her husband, is valid and binding the knowledge when ratified by the husband (2). And where a wife, unknown to "g.^aM^'^'i'ien her husband, requested her father to sell a field to her, to be paid ratified by husband. for out of her savings; and the father at first refused, but he received the money, and afterwards put the husband into possession ; and for ten years the money was retained by the father without payment of interest, and the field by the husband without payment of rent; and the father then brought an action of ejectment to recover possession of the field, and the plaintiff's wife then told the plaintiff of the nature of the transaction ; and he then instituted this suit against the father to restrain the action, and to compel the defendant to convey to him the field : the Master of the Eolls; Sir J. Eomilly, held that the father was bound to convey it to the husband, and decreed accordingly (3). 24. The plaintiff, previously to his marriage with A.'s daughter, wrote a letter to A. inquiring what fortune his daughter was entitled to ; and A,, in reply, wrote to the plaintiff a letter, dated the 29 th of April, 1800, and stated therein that certain houses were entailed on his daughter after his decease ; and A. died, leaving his daughter his only child, having devised all his real estates to his wife ; and it was then discovered that A. was tenant in tail male of the houses, with reversion to himself in fee ; and in January, 1816, the plaintiff and his wife filed a bill against A.'s widow (who was in possession of the houses), praying that the plaintiffs might be declared to have the (1) Swift V. Swift, 34 Beav. 266 ; 458, 1148 ; v. S. C, post, p. 677, 34 L. J. (Ch.) 394 ; 11 Jur, (N. S.) pi. 2. (2) Millard v. Harvey, 34 Beav. 237. (3) lb. 2 X 674 HUSBAND AND WIFE— WIDOW-ILLEGAL COHABITATION. Part I. letterof the 29th of April, 1800, and the proposal therein contained. Sect. 6. carried into execution, and to have the houses conveyed to the wife conformably to the representation therein contained, and that the same might be ordered and decreed accordingly; and that A.'s widow might be restrained from commencing or prosecuting any action of ejectment or trover, or other action at Law against the plaintiff touching any of the matters contained in the bill. A.'s widow had threatened to commence an action of ejectment against the husband, who had, upon A. the father's death, taken possession of the title deeds of the houses, and the husband (as alleged), having mislaid the above letter, delivered up the posses- sion of the houses to the widow, but, having afterwards found that letter, he gave notice thereof to the widow and her solicitor, but she refused to let the husband into the receipt of the rents of the houses, or to account to him for them, and in consequence thereof the bill was thereupon filed. The Court granted an injunction, and the widow having put in her answer, the injunction was, in 1818, continued ; and on the same day the plaintiff obtained an order to amend, but did not act upon it, or take any further pro- ceedings, till May, 1820. In May, 1820, the bill was amended, and the widow having gone abroad without answering the amended bill, a decree was taken fro confesso against her in November, 1822 (1). A purcliaseof 25. A purchase by a married woman from her^ husband, througb marriecf " ^^ *^® medium of trustees, for her separate use and appointment, may woman from be Sustained against his creditors ; and an injunction will be granted through trus- to restrain the disposition of the goods purchased, taken in execu- sHst'ataed ^ ticn under judgments obtained against the husband by his creditors, CT'd't^r'^'^ if the purchase by the wife is bona fide: it is of no consequence whether it is before or after the marriage, though the husband is indebted at the time ; and even though the object is to preserve from his creditors for the family the subject of the purchase — in this instance ancient family pictures, furniture, and other articles of a special and peculiar nature and value. The circumstances of the comparative value of the consideration, the continued possession (according to the title by the relation of the parties), the degree of notoriety, the want of an inventory, the satisfaction of some debts (1) Landiin v. M.rrris, 5 Sim. 247. HUSBAND AND WIFE— WIDOW-ILLEGAL COHABITATION. 675 out of the property, &c., though circumstances of evidence, are not Pabt I. conclusive as to the nature of the transaction (1). Sect V^' 26. In a marriage settlement, a covenant to settle the wife's ai'ter-acquired property will be construed as applying only to property acquired during the coverture, although the words "during the coverture" are not inserted. A joint and several covenant, in a settlement by an intended husband and wife, that if the wife, her executors or administrators, or the husband, his executors or administrators in her right, should "at any one time thereafter " become absolutely entitled to any real or personal estate, the husband and wife respectively, or their respective executors or administrators, would bring it into settlement, was held by Vice- Ohancellor Sir E. Malins — upon a demurrer to a bill filed by the trustees of the settlement and the children against the wife (the husband having died), praying that it might be declared that the real and personal property acquired by the wife, under and by virtue of the husband's will, and her appointment thereunder to herself, were bound by the covenant in the settlement, and that she might be ordered to convey and assign the same to the trustees, and be restrained by injunction from otherwise disposing of it — not to apply to real and personal estate coming to the wife under the husband's will, and the demurrer was allowed (2). 27. Where the separate estate of a wife is levied on for the debt The sale of of her husband, an injunction may be obtained to stay the sale in estete of'wie default of any other remedv (3). With the assent of the husband, ^if^ for her •' ' . . husband s the labour of his wife and minor children may be applied to her liebt will be , , . -n 1 • TIT ■ restrained. separate estate, and his assent will be implied by circumstances ; The labour of and an injunction was granted to restrain a creditor of the husband ^fj^'^^i from selling, on execution, growing crops which were produced on with hus- the separate property of the wife by her labour and that of her be applied to' children (4). And although Courts of Equity usually refuse to esTatf ™*'' restrain a trespass by injunction, yet where propertv was bequeathed -*• bequest- to . " the separate to the separate estate of a feme covert without any trustee, and was estate of a feme covert, (1) Arundelt (Lady) v. Fhipps, (3) Calhoun v. Cozens, 3 Ala. 498 Arundell (Lady) v. Taunton, 10 Yes. (Amr.) 139. (4) Johnson v. Vail, 1 M'Cart. 423 (2) Carter v. Carter, L. R. 8 Bq. 551 ; (Amr.) 21 L. T. (N. S.) 194. 2X2 676 PARENT AND CHILD— INFANTS. Pabt I. about to be sold under an execution against the husband for his ^"seot-V^' debt, the Court held that, the legal estate being in the husband, will be pro- ^^^ therefore there being no one to sue for the trespass, it would teoted where interfere by iniunction (1). no trustee. j j \ / , , ,, . • , • . .^ . Whereadivi- 28. Where the claimants of a husband's interest in his wiles bancrlinterest property cannot effect a division without the aid of a Court of in wife's pro- Equity, a sale of the property will be enioined till she is suitably perty cannot ^ ■" r r j i . i i -p be made with- provided for (2). So, Equity will, on an application by the wiie, Court, it will restrain her husband from proceeding at Law to obtain possession enjo)n saleof^ pf g^ legacy Or portion in personal estate, which comes to her by she is pro- will or inheritance, without providing for her support, unless she Yidedfor. So,. .^. ^ ,. .f ,. 3 ■ i i^ ■ j. husband must IS residing apart from him without his consent, and without sumcient provide for ,n\ wife, if she cause (3). insist, before he can obtain a legacy, &c., to her, vmless residing apart without consent, &c. A convey- 29. A Conveyance by a woman after a marriage engagement, intended wife ^^'^ upon the eve of marriage, is a fraud upon the rights of the on eve of mar- intended husband, and will not be upheld unless it appears clearly riage is a ' ^ . fraud upon that he had knowledge of the transaction, and assented to it ; and intended bus- i i i i n 1 ■ hand, if with- where a voluntary conveyance had been made, under such circum- ledge'and ° " Stances, of all the woman's property to a man of small means, he assent. ^j^g enjoined from removing the property from the State, although it did not appear that he had any intention to do so (4). Sect. 7. Parent and Child — Infants. The Court will 1. The Court of Chancery will, under circumstances of improper fatliCTfrom in- conduct, restrain a father from interfering with the management terfering with ^^d education of his son, in this case a ward of Court C5). And in his son 3 _ ^ ' education, Ex parte Warner (6) it was held, that a father can be restrained father's con- from exercising paternal authority over his children by the order propei! ™' of the Court. And where a man belonging to a sect called the " Lampeter Brethren " had married a lady, and, after cohabitation, abandoned her when she was far advanced in pregnancy ; and he (1) Smith V. Bank, Jcc, i Jones, Eq. (3) Fry v. Fry, 7 Taige, 461 (Amr.) 303 (Amr.) (4) Johnson v. Peterson, 6 Jones, (2) Corky v. Oorhy, 22 Geo. 178 Eq. 12 (Amr.) (Amr.) (5) Oreiize v. Hunter, 2 Cox, 242. (6) 4 Bro C. C. 101. fAEENT AND CHILD— INFANTS. 677 then, with other brethren, and several other men and women, PaktI. formed a society, under the name of " Agapemone," in which there sect, 7. " was no observance of a Sabbath, no practice of public or private worship (except only that hymns or anthems of praise were sung), no usage of prayer as intercession of the Almighty, and in which it was held that prayer was useless, as the day of grace was past, and the day of judgment had arrived ; and the husband, more than four years after the abandonment of his wife, endeavoured to obtain forcible possession of their child, a son between three and four years old ; and the child had been made a ward of Court, and by his next friend presented a petition to restrain the father from interfering with him, or suing out a writ of habeas cor^pus to obtain possession of him : the Court held, that in England a man who holds The Court that prayer, as entreaty and supplication to the Almighty, is no father from part of duty, — is superfluous, and that no day ought to be observed "btammg the as the Sabbath, is to be deemed as entertaining opinions noxious "tiid, where . ., . . 1 , „ r~n ^'^ opinions to society, adverse to civilization, opposed to the usages of Christen- on prayer and dom, contrary (as to prayer) to the express commands of the New ^-gre opposed Testament, and is disqualified for having the guardianship of an *2 S?^^ usages English child, although his own ; and therefore made an order that endom, &o. the child should not be removed from the custody of his mother and maternal grandmother (1). 2. The rule of Law, that a covenant by a father to abstain from The Court seeing or exercising any control over his children is void, is grounded covenanrby '^ on this, that such a covenant is opposed to the welfare of the child ; tte fa,ther to ' ^ ^ ' abstain irom but if the Court finds that, by reason of the conduct of the father, seeing, &c. his -,..•■ 1 1 •! 1 1 Ml 1 children, his control is injurious to the child, such a covenant will be en- where his mis- forced. And where, in a deed of separation between husband and his„nfltnesJto wife, the husband, after having been guilty of such misconduct as ^^'^^ f^^^ ' ' . . custody. proved him unfit to have the custody of his children, has cove- nanted that they should remain separate and apart from him, and under the control of his wife, the Court will not, on the ground of its being against public policy, refuse to enforce that covenant ; and the Lords Justices — upon a bill by the wife, by her next friend, against her husband, praying for an injunction to restrain her husband from removing and from prosecuting any proceedings to obtain their two infant children from her custody, or interfering (1) Thomas v. Edberts, 19 L. J. (N. S.) Ch. 506. 678 PAEENT AND CHILD-INFANTS. Part I. with her in the management, care, and protection of the children, Sect. 7. ' and for an account and payment by her husband of the arrears of an annuity due to her for the maintenance of herself and the children under the terms of a separation deed — affirmed a decision of the Master of the Rolls, Sir J. Romilly, for the payment of the arrears of the annuity, and restraining the husband from removing or interfering with the children, but varied the decree by making the injunction until further order, instead of perpetual (1), 3. Where a husband, having separated from his wife under cir- cumstances of grave suspicion as to her conduct, took from her the custody of their daughter, an infant of about eight years old ; and he subsequently sued for a divorce, alleging adultery by her on two distinct occasions, but the suit failed, as the first alleged act of adultery had been condoned, and nothing more was proved on the second charge than levity and indiscretion ; and the husband, how- ever, continued to live separately from his wife, and went to India in performance of his miUtary duties, having previously placed the child under the charge of his sister, residing in Switzerland, re- fusing to allow access by the mother to it, on the ground that this was best for the child ; and his conduct had throughout been very indulgent to his wife, and free from blame ; and the views of the mother as to the training of the child were antagonistic to those of the sister, who was also determined, as the mother alleged, that it should grow up a total stranger to her : upon a petition for access to the child, presented by the mother under 2 & 3 Yict. c. 54, Vice-Chancellor Sir W. P. Wood held, that the Court would not, under the circumstances, interfere with the father's arrangement for the training of the child. The Vice-Chancellor said, the father having wished his child to be under the guidance, care, and in- struction under which it was placed, the Court had no right to have an opinion — provided the father's conduct was free from im- propriety or bad motive, as it undoubtedly was — as to whether the father was judicious or not in the particular training he might direct the child to undergo ; and dismissed the petition, but without costs (2). 4. Where the father of an infant of two and a half years, origin- (1) Swift V. Smift, 34 Bcav. 2G6 ; pi. 22. 11 Jur. (N. S.) 458, 1148; 34 L. J. (2) TFmscom, In re, 11 Jur. (N. S.) (Ch.) 209, 394 ; v. S. C, ante, p. 672, 297 ; 13 W. U. 452. PAEENT AND CHILD-INFANTS. 679 ally a Protestant, died a Eoman Catholic, and his widow married Jart I. again and was a Protestant, the Court refused to remove the child sect. 7. from the custody of the mother on the ground of her religious opinions. The Master of the Eolls, Sir J. Eomilly, said, in these cases the Court only considers what is most for the benefit of the infant, and that no thing, and no person, and no combination of them, could, in bis opinion, with regard to a child of tender years, supply the place of a mother. Upon appeal. Lord Chancellor Westbury declared that the infant ought to be brought up and educated, when capable of receiving religious education, as a member of the Eoman Catholic Church ; but that, having regard to her tender age and health, she should continue under the care of her mother, her husband, and Mr. W. (appointed guardians) until seven years of age, with liberty to apply then respecting the guardianship, educa- tion, and religious instruction of the child (1). And the general doctrine of this Court is, that the children should be brought up in the religion of their father (2). In this case the children were respectively twelve and fifteen years of age ; and the Lords Justices, affirming a decision of Vice-Chancellor Sir J. Stuart, ordered the children to be brought up as members of the Church of England (of which their deceased father was a beneficed clergyman), and restrained their mother from taking them to a chapel of the Plymouth Brethren. 5. In Pearce v. Crutchfield (3), Lord Chancellor Eldon granted an injunction upon an affidavit of an intended marriage by a widow aged thirty-five, with a male infant aged eighteen, restraining all communication with him until further order, and that service of the order at the house which appeared to be the last place of abode of the widow, though apparently shut up— at the suggestion that ?ome person was residing at the house— should be good service. And where an infant was about to contract an improper marriage, and his parent (in order to give jurisdiction to the Court) settled a small sum of money for his benefit ; on a bill filed for execution of the trusts of the settlement, the Court granted an injunction to restrain the marriage (4). (1) Austin V. Austin, 34 Beav. 257. (3) 14 Ves. 206. (2) Newbury, In re, L. B. 1 Eq. 431 ; (4) Dawson v. Thompson, 12 L. T. L. K. 1 Ch. 263, 266. (N. S.) 178. 680 PARENT AND CHILD— INFANTS. Part I. 6. Upon the marriage, in Guernsey, of a female ward of the Sect. 7. Court, all parties concerned in the transaction, including the husband, were ordered to attend ; and the husband was committed to the Fleet, and restrained from receiving her visits there ; and upon a subsequent day, it appearing that she was residing with a friend of her husband, she consented to go to another residence, under an intimation from the Court that if she did not consent, it would consider whether, by the jurisdiction of the Court over infants, it could not take possession of the person of the ward and compel her to do so. The husband, after some time, was permitted to propose a settlement, but the Lord Chancellor refused to discharge him on his undertaking to execute the settle- ment ; and the marriage in Guernsey having been found by the Master void by the laws of Guernsey, a marriage by banns was ordered (1). 7. In De Manneville v. J)e ManneviUe (2), Lord Chancellor Eldon, under the circumstances of the case, restrained a father from taking his child out of the kingdom ; and said that no affidavit was necessary to obtain an order that a child, a ward of Court, should not be taken out of the jurisdiction, and that if a child, a ward of Court, would not be safe, he would not even let it go to Scotland. An infant is 8. An infant is entitled to treat a person who enters on his treat a person estate during his infancy as his bailiif, who is accountable as such; Ms^esMe"" ^^^ ^^® jurisdiction which this Court has to decree accounts of the during his estates of infants against persons entering thereon during their miancy as his _ _ _ o i o e> bailiff. minority is not taken away by the fact that at the time when the bill was filed the infant had attained twenty-one ; and upon a bill by the plaintiff, who had attained twenty-one, against the defen- dant, praying that he might be charged as guardian and bailiff, the Master of the Eolls, Lord Langdale, decreed (here) that the bill should be retained for a year, with liberty to the plaintiff to bring ejectment ; and if the ejectment was brought, the defendant was not to set up any outstanding legal estate ; Lord Langdale observ- ing, that he thought it quite clear tlie whole object of the pro- ceeding would be defeated if any outstanding term could be set up, and that he must consider this case as one of the few excep- (1) Balhuisl V. Murray, 8 Vcs. 74. (2) 10 Ves. 52, 56. PAEENT AND CHILD— INFANTS. 681 tions there were to the rule — that in order to obtain an injunction Part i. there must be a distinct prayer for it in the bill (1). Sect. 7. 9. A man cannot be charged in Equity, after his majority, on a purchase, or sale, or contract, made during his minority, on the mere ground that, without any false assertion by the infant, the other party believed he was not a minor, and dealt with him on the supposition that only adults could enter into such transactions ; and Vice-Chancellor Sir J. L. Knight Bruce therefore refused to entertain a bill for an injunction to restrain an action brought to recover certain railway shares wliich had been sold and assigned by deed to the plaintiff in Equity by the plaintiff at Law during the infancy of the plaintiff at Law, there being no evidence against the plaintiff at Law of misrepresentation as to his infancy (2). 10. Where the testamentary guardian of an infant sold part of his estates for the redemption of the land tax, and the vendee paid the purchase-money to the agent of the vendor, who was also agent for the vendee, and the conveyance was executed, but the agent did not pay the money into the bank, as required by the Act 38 Geo. 3, c. 60, and the purchaser entered and continued in pos- session for many years, paying the land tax, and nearly twenty years after attaining his age the heir-at-law brought an ejectment against the purchaser, to restrain which, and obtain a confirmation of the contract, the purchaser filed his bill, the Court dismissed the bill, but without costs (3). 11. A child en ventre sa mere might have been vouched in a recovery, though it was for the purpose of making him answer over in value, and such a child may be an executor, may take under the Statute of Distributions, may take by devise, may be entitled under a charge for raising portions, may have an injunction A child en to stay waste, and he may have a guardian (4) ; and such a child, ^g^y j^^ve an ' i.e. a child en ventre sa mere, is a person in rerum natura, and, both iQJ^iiotion to by the rules of the Common and Civil Law, is, to all intents and purposes, a child as much as if born in the father's lifetime (5) ; (1) Bhmfield v. Eyre, 8 Beav. 250. affirmed, 2 Dow. & 01. 414 ; S. C, 15 Bli. (2) Stikemanv. Dawson, 1 De G. & (N. S.) 643. Sm. 90. (4) Thellusson v. Woodford, 4 Ves. (3) Ilicks V. Morant, 3Y. & J. 286; 322 ; 11 Ves. 112, 138. (5) Wallis V. Modson, 2 Atk. 117. 682 APPEENTICE-AUTHOES— PUBLISHEES. Part I. and the mother may justify the detaining of writings on behalf of Sect. 7,8. ^ child en ventre sa mere, and a limitation hmredihus de oorpore pro- creatis will include issue afterborn, and so, e converse, procreandis includes issue already born (1). Sect. 8. Apjprentiee. 1. Where the plaintiff's son had been apprenticed to the defen- dant for seven years, but the son quitted the defendant on being illused, and the defendant brought his action against the plaintiff on his bond for a part of the premium, and the plaintiff filed his bill for an injunction, and for a delivery up of the bond; Lord Chancellor Hardwicke held, that there was no ground for bringing the suit in this Court ; and that the suit was a very unnecessary one, as the jurisdiction in such matters, under the 5 Eliz. c. 41, s. 35, was left entirely to the justices of the peace; and that misuser of an apprentice was not a foundation for coming into Equity ; for if an action be brought by a master against the father of an appren- tice for a breach of covenant in quitting his service, if misuser should appear, there is no breach. But, with the consent of the defendant, his Lordship decreed, that the iujimction already granted should be made perpetual, and that the bond should be delivered up to the plaintiff to be cancelled ; and at the same time he ordered the plaintiff to pay the defendant his costs at Law on the action upon the bond, and also his costs in this Court (2). Sect. 9. Authors—Publishers. The right of !• The right of an author of an article in a periodical, under en arUoie to a ^ect. 18 of the 5 & 6 Vict. c. 45, to prevent a separate publication, periodical, to jg jjq^ copyright within the meaning of sect. 24 ; and it is no objec- separate tion to a motion for an injunction in such a case that the author S'not°oopy- has not entered his work at Stationers' Hall ; and the republica- right ; a separate publication can be restrained without entering the article at Stationers' Hall. (1) Muegiuve v. Parry, 2 Vern. 710, (2) Argles v. Heaseman, 1 Atk. 518 ; lad Ed. V. Hale v. Webb, 2 Bro. 0. C. 78. AUTHOES-PUBLTSHEES. 683 tion of the Christmas number of a periodical under a different Part t. title, form, and price (and not a mere reprint of the Cliristmas ^'se™9.^^" number, which would be legitimate), is a "separate publication" of an article contained in such number, which the author is entitled to restrain (1). 2. On a dissolution of partnership, where the defendant was one of the proprietors and partners, and also the editor, of a weekly- periodical called ' Household Words,' the Master of the EoUs, Sir J. Eomilly, held, that he was not justified in advertising that the publication would be discontinued ; for that the right to use the name must be sold for the benefit of all the partners, it being part of the partnership assets ; but the Court would not restrain him from advertising the discontinuance of the publication as regarded himself, nor from advertising a work of a similar description under a new name (2). 3. Where the plaintiff, an author, had agreed with the defen- dant, a publisher, that he (the defendant) should publish at his own expense and risk a certain work of the author, and, after deduct- ing from the produce of the sale all expenses and certain allow- ances, the profits remaining of every edition that should be printed were to be divided equally between them, the books to be accounted for at trade price, unless it should be thought advisable to dispose of any at a lower price, which was to be left to the discretion of the defendant ; Vice-Ohancellor Sir W. P. Wood held, that this was a joint adventure, and, if a license at all, it would be only a license necessary for carrying on the joint adventure, and nothing more than an implied license for that purpose, and not a parting with, or agreement for the sale of, the copyright by the plaintiff to the defendant (3) ; but that the defendant could at any time put an end to the agreement by refusing to publish any more editions ; that the form, type, price, time, number, &c., of every edition was left to the sole judgment and discretion of the defendant. And the Vice-Chancellor also held, that " edition " meant every quantity of books put forth to the bookselling trade and to the world at one (1) Mayhem v. Maxwell, 1 J. & H. (3) Reade v. Bentley, 3 K. & J. 271 ; 312 ; 9 W. E. 118. 4 K. & J. 656; 4 Jur. (N. S.) 82 ; (2) Bradbury v. Dickens, 27 Beav. 27 L. J. (Oh.) 254. 53 ; 28 L. J. (Ch.) 667. 684 AUTHORS -PUBLISHERS. Paht I. time by the defendant ; and that when the advertisements, the Chaptdk IV. . . , , . , Sect. 9. prmtmg, and other well-known expenses and acts by a publisher bringing out such quantity of copies in the ordinary way are closed, that constitutes the completion of the edition, whether the copies are taken from fixed or moveable plates or types, and whether the types or plates are broken up or not, and whether all the copies taken are given forth and advertised for sale, or retained and stored in the warehouse of the publisher ; that it was to be inferred from the agreement that the publisher was to fix the sell- ing price of the book, and that he was at liberty to publish more than one edition ; but that the plaintiff had a right, at 'any time after the publication of the first or any subsequent edition, and before any expense had been incurred towards another edition, to put an end to the above agreement between himself and the defen- dant, by notice given to the defendant before any expense had been incurred towards another edition (1). 4. Where S., proprietor of a weekly newspaper, by a letter to F., an author, had agreed that F. should write two tales, extending over one year, at £10 per week for each number, to contain about the same quantity as was sent under a former similar engagement, and to receive the first number on the 22nd of April, 1855, and to continue to receive one number weekly during one year, con- ditionally that F. should not write for any other newspaper pub- lished at less than 6d. ; and F. had accepted the engagement, and had received £20 deposit, and had written regularly for some weeks, and then went to Paris, and sent an abrupt conclusion of a current tale in a small quantity of manuscript, and refused to proceed with his engagement with S., and entered into another engagement with C. ; and S. thereupon stopped his payments to F., and employed another author to conclude the half-finished tale ; Vice-Chancellor Sir W. P. Wood held, that the engagement was a yearly engagement, and could not be terminated by F. as a weekly engagement ; that the condition as to F. not engaging elsewhere was valid ; and that, under the circumstances, S. had behaved reasonably, and not so as to deprive himself of his remedy by injunction (2). (1) Bedde v. Bentletj, 3 K. & J. 271 ; (2) Stiff v. Cassell, 2 Jur. (N. S.) 4 K. & J. G56 ; 4 Jur. (N. S.) 82 ; 348. 27 L. J. (Oh.) 254. AUTHOES— PUBLTSHEES. 685 5. Where tlie plaintiff had become, by purchase, in February, Part I. 1856, proprietor of a weekly newspaper called the Britannia, seot. 9. which he subsequently had incorporated with another weekly newspaper called the John Bull, and had issued the publication under the title of the John Bull and Britannia, but he had not registered his name at the Stamp Office as the proprietor of either newspaper ; and on the 12th of April a notice was inserted in the Britannia, to the effect that that paper would be united with the John Bull; and on the 19th of April the defendant, who had been the printer and publisher of the Britannia, issued a publication called the True Britannia, in imitation, and as a con- tinuation of the Britannia; and a bill was filed against the defendant, as the proprietor of the new newspaper, to restrain him from publishing it ; and the defendant, in his affidavit, said that A. B. was the registered proprietor of the True Britannia, and that he was the printer and publisher only : on motion for an injunc- tion, Vice-Chancellor Sir J. Stuart ordered the defendant to be restrained from printing and publishing, &c. the True Britannia, or any other newspaper as a continuation of the Britannia (1). 6. The right and property of an author or composer of any The rigiit and work, whether of literature, art, or science, in such work, unpub- author m-TOm^ lished, and kept for his private use or pleasure, entitles the author P°^^^' ^" ^'.^ ^ ^ -^ work unpub- or composer to withhold the same altogether, or so far as he may lished, entitles please, from the knowledge of others ; and the Court will interfere &a.. to witii- to prevent the invasion of this right by the publication of a cata- theknowitdge logue containing a description of such work; and the Court will °^ °*^^''^- also interfere, by injunction, to prevent a party availing himself of restrain the „ " , , . . . „ IT . , publication of a possession oi etchings or impressions oi a work, where the pos- a catalogue session originates in a breach of trust, confidence, or contract ; and desoription of the cases in which the Court refuses to interfere by injunction ^^"^ w°^^- until the legal right is established at Law, have no application to cases in which the Court exercises an original and independent jurisdiction to prevent a wrong arising from a violation of right, or breach of contract or confidence. And where a workman, intrusted with copperplates for the purpose of taking impressions for the plaintiff of etchings made by the latter, and not intended for pub- lication, took impressions for himself in violation of the trust, and (1) Prowett V. Mortimer, 2 Jur. (N". S.) 414. 686 AUTHOES— PUBLISHEES. Part I. sold the impressions to the defendant, who published a catalogue Sect. 9. of them, accompanied by remarks of his own ; Vice-Chancellor Sir J. L. Knight Bruce, at the hearing of the cause, granted a perpetual injunction to restrain the making any engraving or copy of the etchings, and publishing the same, or parting with them, or selling or publishing the catalogue, or any work purporting to be a cata- logue of the etchings ; and ordered the impressions of the etchings to be delivered to the plaintiff, and the copies of the catalogue to be destroyed ; and held that the defendant was not entitled to a pre- liminary trial of his title at Law(l). And in this case, where, upon a previous interlocutory application for an injunction, the evidence had only made out a case of suspicion that a breach of confidence had been committed, but on the defendant putting in his answer, denying notice of any such breach of confidence, not, however, fully or satisfactorily accounting for his possession of the etchings, and moving to dissolve the injunction ; the Vice-Chancellor held, that there was sufficient ground for suspicion, that there were equi- table as well as legal grounds for interference, to make it right to continue the injunction to the hearing (on proper undertakings), without putting the plaintiff to establish a title at Law (2) ; and, semble, that independently of the breach of trust, the legal right of the plaintiff to preserve the privacy of his unpublished works was so clearly infringed by the publication of the catalogue, as to entitle him to have it protected by injunction, without obtaining the deci- sion of a Court of Law in its favour ; and that the distribution of a few copies of the etchings to private friends did not prejudice this right (3). 7. Where the Court, on the 20 th of December, had awarded an injunction to restrain the defendant from assigning, vending, or disposing of the patents and leasehold premises of the partnership mentioned in the bill, and from removing the books from the part- nership premises, but made no further order ; and in the early part of February following the plaintiff had caused an advertisement to be issued, to the effect that patents could not be parted with or dis- posed of, or any licenses thereunder granted, without the consent of the plaintiff, and that the defendant had not any legal right to buy (1) Prince Albert v. Strange, 2 Do G. &- Sni. 652 ; 1 Mac. & G. 25 ; 1 H. & T. 1. (2) lb. (3) lb. AUTHOES— PUBLISHERS. 687 materials for wire-rope, or receiye money for sales of wire-rope, except Part I, with the consent of the plaintiff; and that all persons so dealing seot. 9. with the defendant without the plaintiff's consent, after this noti- ' fication, must take upon them all the consequences, losses, damages, and legal proceedings which might be incurred, by their so doing ; the Vice-Chancellor, Sir J. Wigram, said, that the insertion of the advertisement in this form was not a contempt requiring the inter- ference of the Court by committal ; but that the plaintiff had, whether ignorantly or not, published an advertisement containing a statement composed partly of what the Court had ordered, and partly of what it had not ordered ; and that if an advertisement of this kind had been published before the motion for the injunc- tion, he most probably would not have granted it ; that on obtaining that assistance from the Court the plaintiff had undertaken to do what should be right on his part ; and that, therefore, in upholding the injunction, the Court would require the plaintiff to insert such other advertisements as would correct the error contained in those which had given rise to this application (1). 8. An agreement by a publisher not to publish in future a An agreement magazine of a particular description, is like the case of an agree- noUo publish"^ ment by the proprietor of a particular article of trade, ^■fter ^ ™^^^|?f™^°^ disposing of it to another, not to deal with that article again, and description is . , , . , like an agi-ee- 13 not void as a too general restraint on trade ; but on an interlo- ment of the cutory application for an injunction to restrain the breach of such particular ° an agreement by the publication of a certain named magazine, or ^l^^'^f^l^^^ any other magazine coming within the description contained in the with that 1 IT ■ ^1 1 • 1 •!! 1 article again, agreement, the publication of the named magazine only will be restrained. However, on this, an interlocutory application for an injunction to restrain the publication of the magazine, Vice-Chan- cellor Sir W. P. Wood said, there would be great hardship in stopping the ensuing number, and that that would not be done ; but granted an injunction restraining the defendant from carrying on the said magazine, without prejudice to the publication of the magazine until the hearing of the cause, the name of the defen- dant not to appear in the title-page or advertisements of the magazine, without prejudice to the right (if any) of the plaintiff to damages or profits in respect of the publication of the work (2), (1) Matthews v. Smith, 3 Hare, 331. (2) Ainsworth v. Bentley, 14 W. E. 630. ( 688 ) Part I. SeCT. 10. Actors. Chaptee IV. J -^ 1. Where a manager of a London theatre had engaged a pro- vincial actor, desirous of appearing on the London stage, for two years, though there was nothing expressed on the subject, the Court inferred an engagement on the part of the manager to em- ploy the actor for a reasonable time, and on his part not to perform elsewhere. But the manager having (under these circumstances) delayed the actor's appearance for five months, who then broke his engagement, and went to another theatre ; the Master of the Kolls, Lord Eomilly, upon a bill filed by the manager to restrain the defendant from performing at the other theatre, held, that he had a right so to do, and that the manager was not entitled to an interlocutory injunction to prevent his performing there (1). Sect. 11. Beceivers— Sequestrators — Officers of the Court. The Court will 1- In Pelham [Lord) v. Newcastle (Duchess) (2), the Court restored restore seques- j^y. ^^ injunction sequestrators who had been forcibly dispossessed. dispossessed. 2. If the misconduct of an officer of the Court, in executing its a discretion as Orders, become the subject of civil proceedings before another T)°roceedin -n jj j-ii-i.- ii-^ ■will not allow such officer IS rounded on a denial oi his authority, or on an *f ti?"auth"^ alleged defect in the order which he has executed, the Court rity of the (which alone is competent to decide upon the validity of its own officer or in-i i- ,... validity of its Orders) IS bound to interpose by injunction, and assume exclusive decidedlnany J"''is<^^^tio° '^'^^^ t^^ matter of complaint (3). This was a motion other Court, before Lord Chancellor Brougham to discharge an order of Yiee- Chancellor Sir L. Shadwell, refusing to dissolve an injunction granted to restrain proceedings in an action of trespass against a receiver and the bailiff who had levied a distress for rent in arrear by the tenant ; the motion was refused with costs. So the Court will stay proceedings in an action against its officers, where the (1) Fechter v. Montgomery, 33 Beav. 22. (2) 3 Sw. 289. (3) Aston v. Eero)i, 2 My. & K. 390. EECEIVEES— SEQUESTEATOES— OrriCEES OP THE COUET. 689 question to be tried is, how far they have conducted themselves Pabt I. with propriety in the execution of its orders (1). And in Ryde v. Seot. ii. . Holmes (2) a party improperly arrested under an attachment was ^ party im- enjoined from proceeding at Law, without prejudice to his applying properly . to this Court for compensation (3) ; and compensation can be got be restrained in this Court only for any misuse of its own process (4) ; and the Law, and must Court will not allow a person to bring an action at Law for damage ^P^^ *° ^^^ for an improper arrest under an attachment, but will refer it to the Master to inquire what compensation he ought to receive (5). 3. Where in a suit in Equity by mortgagees of a dock against This Court the trustees and a judgment creditor, the chairman had been ap- ^ ^terfer^ pointed receiver of the tolls, with direction to pay into Court the once -with the ^ _ . , functions oi a balance, after paying the expenses of carrying on the concern and receiver, and , . , ,1 , .1 • 1 , T 1 that, although the mterest on the mortgages ; another judgment creditor, who was the order not a party to the suit, having afterwards proceeded to attach the fji^"]^''™ tolls under the Common Law Procedure Act, 1854, was, on motion, ^'^''^^y ^^^°' neous. restrained by injunction from interfering with the functions of the receiver, or intercepting the payment of rates or tolls during the receivership. The Court will not permit its receiver to be inter- fered with or dispossessed of the property, nor will it allow pay- ment to him to be intercepted, although the order appointing him may be perfectly erroneous. An application must first be made to the Court for leave (6). 4. "Where the inspectors appointed by a deed of inspectorship inspectors of registered under the Bankruptcy Act, 1861, filed a bill against the unatrThe*"'"'^ debtor, charging him with obstructing them in their duties as ?^?'?g|j*''y inspectors, and with collecting assets and applying them to his own obtain a re- purposes, contrary to the covenants of the deed, and alleging that chancery they were unable to prevent his proceedings, and that irreparable Abstraction mischief would result, and praying a receiver ; upon a motion by and irrepar- the plaintiff for an injunction and the appointment of a receiver. Lords Justices Wood and Selwyn held, upon the before-mentioned charges and allegations, and affirming the decision of Yice-Chan- cellor Giffard appointing a receiver, that this Court had jurisdiction (1) Ex parte Clarke, 1 Euss, & My. (4) Nugent v. Nugent, 2 Moll. 372. 563. (5) Batchelor v. Blake, 1 Hog. 198. (2) 2 Moll. 273. (6) Ames v. Birkenhead Docks (Triis- (■S) lb. tees of), 20 Beav. 332. 2 Y 690 LUNATICS. Part I. to appoint a receiver, and that, although the property might hare Sec™ 11. ' to be distributed in Bankruptcy, and though the Court of Bank- ruptcy might be able to give the same relief (1). The Court will 5. The Court by which a receiver is appointed will restrain him celver prose- from prosecuting an unjust and vexatious suit at Law, although the auU at Law"* complainant is not a party to the suit in which the receiver was although com- appointed (2). plamant is not '■^ a party to the suit in which receiver appointed. Sect. 12. Lwnatics. 1. In JEJa; parte Vaughan, Be Edridge (3), upon a petition of a tenant of a lunatic's estate praying that the committee might be restrained from proceedings in actions of ejectment brought against the petitioner and his under-tenants for the recovery of the demised premises, in pursuance of orders made in Lunacy, the tenant of the estate was relieved against the ejectment, which was founded on a forfeiture by breach of covenant to repair. The Lord Chancellor, Earl Eldon, said that where a man filed a bill for an injunction to be relieved against the effect of his own conduct, the Court would not in general cases relieve him ; but that it would be an adminis- tration in Lunacy extremely prejudicial to the estates of lunatics if too hard measures were adopted with the tenants, and upon the tenants paying the costs of the repairs and of all the proceedings, the actions were stayed. 2. In Be Creagh (4) a tenant on a lunatic's estate was restrained on petition from committing waste, no bill being filed ; and in Be Chinnerys (5) an injunction to restrain waste was issued in a lunacy matter, on an application of the receiver, without a bill being filed. (1) Biches v. Owen, L. R. 3 Ch. 820 ; (3) T. & E. 434. 16 W. R. 963, 1072. (4) 1 Ball. & B. 108. (2) Matter of Merritt, 5 Paige, 125 (5) 6 Jr. Eq. Rep. 469 ; 1 J. & Lat. (Amv.) 90. ( 691 ) Sect. 13. Barrister — Counsel. Pabt i. 1. A barrister who has for a series of years been legal adviser to ' a party, and in one case in particular, of a controverted claim, A barrister, 1 1 T • -n 1 n 1 1 adviser to a which the client sought to compromise, -will not be allowed to buy party, will not up such outstanding claim, though the relation of counsel and client buy^up^n has ceased, and if a counsel makes such a purchase it will be held outstanding ' '^ _ controverted a trust for his former client (1). claim, though the relation has ceased. 2. This Court would restrain by injunction a counsel from The Court divulging secrets of a former client (2) ; but this decree was TOunsef '^^™ reversed by the House of Lords on appeal, on the ground that divulging relief could only be obtained by a cross bill (3). 3. The Court will not interfere in questions arising upon the The Court . . J. , . 1 ii 1 J- • 1 will not inter- practice ot retainer where the usual means ot securing counsel fere on ques- have not been taken. And in Baylis v. Grout (4), on a motion P™^°^^®" on the part of the defendants in the cause for an injunction to "sual means • •! ic • 1 I' 1 T ■ •PI- °^ securing restrain a particular counsel from acting as counsel for the plaintiffs, counsel not from whom he had received a retainer since his promotion to ^^ the rank of king's counsel, on the ground that he had drawn the answer to the bill, and had otherwise acted in the progress of the suit on behalf of the defendants ; the Master of the Rolls, Sir C. Pepys, said that as the defendants had not taken the usual means of securing the professional assistance of the counsel the Court could not interfere. 4. This Court will not suffer counsel to maintain an action for This Court fees, which is quiddam honorarium ; nor (at the period of this case), counsel to if he happened to be a mortgagee, to insist on more than legal "i^mtam interest, under pretence of gratuity or fees for business formerly done in the way of a counsel (5). 5. So far as the rights of the plaintiff are affected by the breach of an injunction, it is no defence to the party violating the injunc- tion that he acted with the advice of counsel, though, if he has acted in good faith, he may be protected from punishment as for a criminal contempt (6). (1) Garter v. Palmer, 1 Ir. Eq. Rep. parte. Re Joiner, Mont. 69 ; Ex parte 289 ; 1 D. & Wal. 722. Lloyd, lb. 70, note (a). (2) Carter v.PaZmer.lIr.Eq.E. 302. (5) ThornUll Y.Evans, 2 Atk.332; (3) Id. 11 Bli. (N. S.) 399 ; o. Boss 9 Mod. 331. V. Steel, 1 Ir. Bq. 171. (6) Hawley v. Bennett, 4 Paige, 163 (4) 2 My. & K. 316 ; et v. Else, Ex (Amr.) 2 Y 2 ( 692 ) ChIptee^JV. ^^^^- ^*- Solicitor— Attorney. 1. Where the defendant, a solicitor, having accepted the situation of clerk to the plaintiff, a solicitor practising at N., entered into a bond with him, which, after reciting that the defendant had been appointed agent to 0., was conditioned to be void if he (the defen- dant) should abstain from practising as a solicitor at N. or within thirty miles thereof without the consent of the plaintiff, and should not act as O.'s legal adviser, except as the plaintiff's clerk, and should not accept or undertake any other agency or appointment (except such as he then held) without the plaintiff's consent, and in case the engagement with him should be put an end to or deter- mined, should not continue to act as agent to 0. ; and the plaintiff afterwards gave the defendant three months' notice to leave his office, and thus put an end to his engagement ; and at the expira- tion of that time the defendant resigned his appointment as agent to 0., but subsequently resumed it, and obtained the office of clerk to the magistrates, and other offices ; Viee-Chancellor Sir J. Stuart granted an injunction to restrain the defendant from acting as agent to 0., as clerk to the magistrates, and from otherwise violating the stipulations of the bond (1). A solicitor 2. In Lewis V. Smith (2), upon a bill by a member of the provi- strained com- sional Committee of an abortive railway company, praying for the in- mmncatmg to junction decreed, and also for specific performance of a contract of a party suing . ■ , aformer client, indemnity- — as to which latter object the biU was dismissed — an in- matters, &c., . . , , . ... of evidence, junction was decreed to restrain a solicitor from communicating to a iTSowSdge V^^^l who was suing a former client documents or matters of evi- as solicitor to dence which had come to the possession or knowledge of the solicitor his tormer ° client. in respect of his employment for such client, and to restrain the party suing from using in his action, or otherwise, any documents or matters of evidence which he had so obtained. The Lord Chan- cellor, Lord Cottenham, observing that the plaintiff was entitled to all the protection against the acts of his solicitors that any other client was entitled to. 3. Where a bill was filed by the residuary legatees under a will against the executors, of whom one was also beneficially interested as a legatee, and had undertaken the sole management of its affairs ; (1) Edmonds v. Pleios, 6 Juv. (N. S.) 1091. (2) 1 Mac. & G. 417. SOLICITOE— ATTORNEY. 693 and the bill charged particular acts of mismanagement, and the PaetI. appropriation by the managing executor to his own purposes of Seot. 14. part of the trust funds ; and the solicitor for the plaintiffs, having been for several years the friend and solicitor of the managing executor, had become well acquainted with the circumstances of the trust, and had been engaged in recovering money from a debtor to the estate, and had been consulted by the managing executor when one of the residuary legatees, the present plaintiff, had applied for the executorship accounts, which had been delivered under the solicitor's advice, and the solicitor's bill for the matters was made out against the managing executor, not as executor but personally ; and the bill was taxed, and an action brought for the amount, which was paid, and the character of solicitor and client thus ceased in 1847 ; a' motion by the managing executor, the former client, for an injunction to restrain the solicitor from acting as the solicitor for the plaintiffs in the cause against him was dismissed. The Yice-Chancellor, Sir J. L. Knight Bruce, said, the state of cir- cumstances considered, he was of opinion that there was no title to an injunction here ; that if special circumstances were required, they were not here ; and, distinguishing JDavves v. Clough (1), said, that there the Court said that the solicitor had virtually discharged himself, but that in this case the client had discharged the soli- citor (2). But in Biggs v. Sead (3) the solicitor of a deceased client, and who also acted as such for his executrix and devisee, was restrained, at their instance, from acting as solicitor for a creditor in whose name he had filed a bill to raise the amount of a judgment debt out of the estate of the deceased, although such creditor had been the client of the solicitor before he became con- cerned for the deceased, and although the solicitor contended that he had been discharged, and insisted that it was not in his power to communicate anything injurious to the estate, all the material facts and documents having, as the solicitor alleged, been put in issue by a bill previously filed by another creditor of the deceased. In Dames v. Clough (4), where A., a solicitor, had been employed by B. to negotiate and conclude an agreement on her behalf, and (1) 8 Sim. 262. (3) Sau. & Sc. 335. (2) Parratt v. Parratt, 2 De G. & (4) 8 Sim. 262 ; affirmed on appeal, Sm. 258. lb. 269. 694 SOLICITOE— ATTORNEY. Pakt I. disputes then arose between them as to A.'s bill of costs, which B. Sect. 14. ' procured to be taxed and reduced ; and a suit was subsequently ~ commenced by C. against B., the object of which was to set aside the agreement, and in which A. and D., who had lately become his partners, were solicitors for 0. ; the Court restrained A. and D. from communicating to C. any information relating to the agree- ment that had come to his knowledge confidentially as the solicitor of B. The Vice-Chancellor, Sir L. Shadwell, said that he could not consider anything to be a greater breach of professional duty than for a solicitor, first of all, as the solicitor of one party, to carry on a negotiation for the benefit of that party, and have it completed, and afterwards to act as the solicitor for other parties, in order, by his own personal knowledge of the transaction, to destroy that which he had done for his former client ; and that, not because he was discharged by his former client, but because he made an exorbitant demand, which was resisted and ultimately defeated, so that he virtually discharged himself; and that such conduct appeared to him to be such a flagrant breach of that duty which a solicitor owes to his client, that the Court was bound to interfere. But a clerk to a solicitor commencing practice for himself will not be restrained from acting as solicitor for parties against whom his master was employed, upon general allegations of his having in his former service acquired information likely to be prejudicial to the clients of his master (1). And in Beer v. Ward (2) the Court, upon motion, refused to restrain a solicitor from giving evidence of confidential matters, the propriety of his being examined being left to the consideration of the Court before which he might appear as a witness. Though if a solicitor, who has been discharged, voluntarily makes communications of what has come to his knowledge confidentially, it is a great breach of his duty ; and, semble, the Court would restrain the solicitor from making such communications (3). And where a solicitor had acted to a certain extent only for parties, defendants in an amicable suit in Chancery, the Court dissolved an injunction to restraio him from acting in a cause where a bill had been filed by some of those defendants against others of them, tlie solicitor making an affidavit that he was not confidentially possessed of any secrets (I) Bricheno v. Thor^), Jac. 300. (2) Jac. 77. (3) lb. SOLICITOK— ATTOKNEY. 695 which might be used to the prejudice of such other defendants, and Pakt I. that he had no knowledge of any facts unknown to his clients (1). Seot. 14. But in Cholmondeley {Earl) v. Lord Clinton (2) it was held that an attorney or solicitor discharging himself, or being removed by the effect of an agreement made upon a dissolution of partnership, and not by the discharge of the client, was not in the situation of a solicitor discharged by the client, and therefore could not become the solicitor of the other party in the same cause. And so a solicitor voluntarily changing his situation would be prevented from giving evidence of his client's secrets, or from proceeding to communicate a material fact, even by striking him off the rolls (3). And solicitors in partnership cannot dissolve their partnership as against their client without his consent, so as to enable the retiring partner as discharged to act against him (4), or so as to turn over their client to one of themselves. (5). And the practice of solicitors, partners, dividing their business, considering one only as agent to the other, was disallowed, the client being entitled to their united exertions. The Lord Chancellor, Lord Eldon, said that, as between them- selves they might make that agreement, but that they could not be heard to say so in a Court of Justice (6). 4. Where an attorney had delivered up deeds to an executor, which he was not obliged to do till his bill was paid, and these deeds were of great use to the executor in several suits which were then carrying on, this was held to be a sufficient consideration to make the executor liable to the attorney's whole demand, whether there were assets or not, and an order of the Exchequer, refusing an injunction to stay the attorney's proceedings on a judgment at Law, was affirmed by the House of Lords (7). 5. Where in a suit against an attorney for the purpose of having his bill of costs on the plaintiff taxed, and for an injunction against his proceeding at Law in the meantime, the defendant moved that the costs both at Law and in Equity might be taxed as between attorney and client ; the Court said that the rules of taxation of costs as between attorney and client did not apply when they (1) EoUnson v. Mullett, 4 Price, 353. (5) Cook v. RTwdes, 19 Ves. 273, n. (2) 19 Ves. 261. (6) Gholmondeley {Ear!) v. Lord (3) Id. 268. Olirdon, 19 Ves. 273. (4) Cholmondeley {Earl) v. Lord (7) Hamilton (Duchess of) v. hide- Clinton, 19 Ves. 273, don, 4 Bro. P. 0. 4. 696 SOLIOlTOE-ATTOENEY, Part I. appear ia the court as party and party in a cause, and that these Shot. 14. costs, therefore, must be taxed as between party and party (1). 6. Where the solicitor and client settled an account, and a mort- gage security was given, with a covenant to pay, and the solicitor having sued on the covenant, the defendant filed a bill impeaching the transaction on the ground of surprise, undue influence, errors, and omissions and exorbitant charges in the accounts and bill of costs respectively, all which was denied by the answer ; the Court, upon a motion under the then practice, made on the merits con- fessed by the answer, and not on proofs in the cause, refused an injunction, with costs. The Master of the Rolls, Lord Langdale, observed, that the Court would look closely at a transaction between solicitor and client ; but in the absence of fraud could not treat it as a nullity, and that there was nothing in this case as it stood but the fact of the dealing having been between solicitor and client (2). 7. The Court, in Wiggens v. Pepfins (3), on motion, refused an injunction to restrain a solicitor from proceeding to recover the amount of a bill of costs, although much the greater part of the bill consisted of charges in respect of proceedings improperly taken by the solicitor, some few of the items of trifling amount appearing to be due from, and improperly claimed against, the client. 8. A solicitor who had established in a suit ^the claim of his client to a sum of money, and was unable to obtain payment of his taxed costs, or to serve a writ upon his client for that purpose, was held by Vice-Chancellor Sir J. Stuart, upon application ex parte, to be entitled to an interim order to restrain the payment of the dividend and delivery of the cheque to the client by the Account- ant-General of a dividend in the suit, until a petition under the Attorneys and Solicitors Act (23 & 24 Yict. c. 127) to establish a lien for costs could be served and heard, the solicitor giving an undertaking to abide by any order the Court might make as to damages (4). (1) Spelmanv. Woodbine, ICox, id. (4) Gtrrardv. Dawes, Dawes, In re, (2) Jones v. lioberts, 9 Btav. 419. 18 W. R. 3l> ; 21 L. T. (N. S.) 322. (3) 2 Jur. 3'.'0. ( 697 ) Sect, 15. Executors — Administrators. PaktI. 1. Although executors can make an assignment and give a 1 receipt for the purchase-money, which are binding, yet a purchaser is not bound to pay the purchase-money till probate ; because till the evidence of title exists the executors cannot give a complete indemnity. But where a testator had contracted for the sale of lease- holds to a company, but died before payment of the purchase-money, Vice-Ohancellor Sir E. T. Kindersley held, that the executors could obtain an injunction to restrain the company from taking possession of the leasehold houses before obtaining probate (1). 2. In Broolcer v. Brooher (2) Vice-Chancellor Sir J. Stuart granted, on motion, an order for an injunction and receiver, as against an administratrix of a deceased intestate, after the common decretal order made upon summons for taking the simple adminis- tration accounts ; a case of misconduct and wilful default against the administratrix having come to light in the course of the pro- ceedings under such decretal order. 3. Upon a bill by two of the residuary legatees under the will of Henry Stainton against the Carron Company, the legal personal representatives of the testator, and other defendants interested under the will (twenty-six in all), having for its object to take the accounts and settle the transactions and dealings between the testator and the company, praying (inter alia) that the company might be compelled to put an end to their proceedings in Scotland, and to relieve the trustees and executors and the testator's estate from the effects thereof, including costs, and for an injunction to restrain the company from availing themselves of the provision for forfeiture contained in their charter, and from continuing an inhi- bition and arrestment in Scotland, and from hindering the exe- cutors and trustees from dealing with the property of the testator in Scotland according to the trusts of his will'; and the company having demurred to the bill, the question being, whether upon the facts therein stated the plaintiffs were justified in suing instead of the executors ; the Master of the Eolls, Sir J. Eomilly, held, that the personal representatives are the proper parties to sue to recover {\)Newton\.MetropolUaiiRailw.Co., (2) 26 L. J. (Ch.) 411; 3 Sm. & 1 Ur. & Sm. 583 ; 8 Jur. (N. S.) 738. Giff. 475. 698 EXECUT0ES-ADMINISTEAT0E8. Part I. the assets, and that parties interested in the estate will not be Seot. 15. ' allowed to sue for that purpose unless it be satisfactorily shewn that assets exist which might be recovered, and which but for such suit would probably be lost to the estate ; but that the rule as to joining the partner of the deceased with the personal representa- tives in a suit for administration, without charging and proving collusion (if it can be supported in the absence of any additional special circumstances), does not apply to such a partnership as a joint stock company (1) ; and that after a decree for administra- tion a legatee cannot sue the debtors to recover the assets, in the absence of any refusal or neglect of the personal representatives to do so. And in this case where, after a decree for administration, a residuary legatee had filed a bill against the executors and a com- pany in which the testator was a large shareholder, and with which he had had extensive transactions, to recover the assets, relying on the fact that the executors were shareholders and officers of the company, and had interests which conflicted with their duty, the demurrer of the company was allowed, it not being shewn that the executors intended to neglect the performance of the duties of their office (2). And if a testator when he makes his will is aware of the circumstances and position of his executors and trustees, the Court will not lightly interfere with their discretion ; and although the circumstance of an executor being an insolvent may be a reason for appointing a receiver, yet if the testator was aware of his insolvency the Court will not, on that ground alone, take the pro- perty out of his hands (3) ; the Master of the Kolls said that he thought it his duty before pronoimcing any decision carefully to consider the cases, which were numerous, where the plaintiffs had been allowed to enforce claims the right of doing which was vested in another, so far as those cases related to the assets of deceased persons, and that the general principle was, in his opinion, correctly stated by Lord Justice Turner in the case of Travis v. Milne (4), where he says : " Upon an examination of the authorities I believe it will be found that there is no instance of such a suit being maintained in the absence of special circum- stances, and that collusion is clearly not the only ground on which (1) Stainton v. Oarron Company, 18 Beav. 146. (2) lb. (3) lb. (4) 9 Hare, 149. EXEOUTOES— ADMINISTRATOES. 699 Such a bill can be supported. The cases, I think, may fairly be Pakt I. considered to go to this extent : that such a bill may be supported sbct. 15. in all cases where the relation between the executors and the sur- " viving partners is such as to present a substantial impediment to the prosecution by the executors of the rights of the parties inte- rested in the estate against the surviving partners." The Master of the EoUs further on said, that he thought it unnecessary to go in detail through all the cases to be found on this subject ; but that he thought that they might be summed up thus : that the per- sons interested in the estate of the testator not being, the legal personal representatives, will not be allowed to sue persons pos- sessed of assets belonging to the testator, unless it is satisfactorily made out that there exist assets which might be recovered, and which, but for such suit, would probably be lost to the estate. 4. Where a person holding, by the warrant of Her Majesty, the office of judicial assessor to the native princes, and being also chief judge of Her Majesty's dominions on the Gold Coast of Africa, took possession of the personal effects of a British subject who died intestate, domiciled in Cape Coast Town, in Africa, and claimed to be the official administrator of these assets by usage, in his capacity of official assessor, and, as such, to be entitled to 7^ per cent, commission upon them; and he afterwards trans- mitted goods, part of the assets, to this country to be sold and the proceeds carried to the account of the intestate's estate ; and came to this country himself, on leave of absence, for a short time; and the father of the intestate, being his' sole next of kin, obtained letters of administration to him in England, and filed his bill against the judicial assessor for administration and an injunction to restrain the defendant F. (the assessor) from receiving the pro- ceeds of the goods, and the brokers from paying the proceeds to him, and for a receiver of the proceeds ; upon motion for an in- junction in the terms of the prayer, Vice-Chancellor Sir W. P. Wood held, that the Court of Chancery had jurisdiction to sustain the application, as the assets and the judicial assessor were both in this country, whatever might be the nature of his authority ; and that there being the danger of his taking the assets again out of the jurisdiction, although he might be the proper representative of the intestate in Africa, a good case was made for the appoint- 700 EXECUTOES— ADMINISTEATOES. Pabt I. ment of a receiver. The Vice-Ghancellor, in his judgment, said : Sect. 15. " There is the question, whether or not, when the property of " a deceased person has been remitted by such a representative (i. e., a personal representative legally constituted by a Court of Her Majesty in the district of an African prince) to this country in such manner as here, with a letter requesting the agent of the foreign administrator to place the proceeds of the same to the account of the estate, a person appearing to proceed in the cha- racter of English administrator and sole next of kin of the deceased has not 'a right to sue the foreign representative of the deceased in this country in respect of those assets which are in this country, and to have the control of this Court exercised over them until the rights are determined at the hearing. I think it seems clear that he has such a right " (1). 5. A suggestion by the trustees of a fund that the administrator of one of the cestuis que trust who, in that character, was entitled to a distributive share of the fund, has unfairly obtained the letters of administration under which he claimed such share, is no defence in this Court to a claim of the administrator ; nor is it a defence for trustees to suggest that a deed under which the plaintiff derives his title from the cestui que trust was founded on mistake, or is otherwise subject to be displaced ; for it is contrary to the course of the Court to direct an inquiry as to the validity or invalidity of a deed upon a suggestion in the answer of the defendants, the trus- tees of the fund to which it relates, where the ascertainment of the validity or invalidity of the deed is not essential to the safety of the defendants ; and the fact of a bill having been filed to set aside the deed under which the claim is made, or to exclude the fund in question from its operation, is not a ground upon which the trustees can resist the legal title to receive the fimd, for the Court cannot give the plaintiff in such other suit the benefit of an injunction to protect the fund upon the suggestion in the answer of the trustees, but the existence of such other suit entitles the trustees to retain such a portion of the trust fund as may be suffi- cient to answer their costs of such other suit (2). 6. Where administration was granted by the sentence of the Ecclesiastical Court to A., as only next of kin of the intestate, in (1) I/erveyv. Fitzpatrick, Kay,4:il. (2) Devey v. 'Thornton, 9 Hare, 22. EXECUTOES-ADMINISTEATOES. 701 a suit in. which B. also claimed to be the only next of kin, and Part I. that sentence was affirmed by the Court of Delegates on appeal; %''eot'!'*]5.^' and B. filed a bill impeaching the pedigree of A., and to establish his own, the Court would not in such case grant an injunction until answer to prevent the administrator from possessing himself of the assets, he being, by the decree of the Ecclesiastical Court, both legally and equitably entitled thereto (].). 7. Where a decree for the administration of a testator's estate was obtained in a creditors' suit, which decree did not bind the testator's real estate, the Court refused to prevent a second suit for the administration of the estate of the same testator from being prosecuted (2). 8. In Mansfield v. Shaw (3) the Court granted an injunction to restrain the defendant, who was alleged by the bill to have im- properly obtained probate, and to be insolvent, from receiving the testator's assets, and from prosecuting actions at law against debtors for that purpose, and granted it under the circumstances (ex parte) before answer. In 8eoU v. Becher (4), it is put as a senible, that an injunction restraining an administrator from trans- ferring the intestate's stock into his own name will, by equitable construction, operate to prevent his parting with any of the intes- tate's outstanding estate, which has previously come to his hands. 9. In Kilby v. Stanton (5), where two executors were appointed, and one proved, and the other declined to act ; and an action was commenced by the acting executor against a debtor to the testator; and the rule of law requiring all the executors to join, the action was brought in the name of both of the executors ; and on a bill filed by the debtor he obtained the common injunction for want of answer, and the acting executor subsequently put in an answer ; on an affidavit that the other executor, who resided abroad, refused to act or put in any answer, the Court granted an order nisi to dissolve the injunction. 10. After the usual decree has been obtained in a creditors' suit this Court will stay all further proceedings in an action by a creditor against the executor upon payment to the creditor of his costs of (1) Maker v. Gorman, 6 Ir. Eq. (2) Jones v. Cook, 11 L. J. (N. S.) Eep. 304. ■ Oh. 15. (S) 3 Madd. 100. (4) 4 Price, 346. (5) 2 Y. & J. 75. 702 EXECUTOES— ADMINISTEATOES. Pabt I. the action up to the time when he had first notice of the decree, Sect. 15. although the executor may have pleaded ^lene administravit, and issue may have been joined on such plea. The Lord Chancellor, Lord Lyndhurst, in his judgment, said : " The result, therefore, is, that if the action should be allowed to proceed to judgment and execution on this plea, and the jury should falsify the plea, and find that there are assets, those assets would be withdrawn from the general fund, which ought to 'be distributed in this Court for the common benefit of all the creditors." And further on he said : " It is to be observed that the plea was not filed in this case till after the decree was obtained and notice of it served ; and it is obvious that it was filed merely for the purpose of enabling the executors to apply by motion to this Court to stay the proceedings. If the executors had suffered judgment by default, which they might have done, execution would probably have issued before the motion could have been made. Then as to the affidavits, the Court in these cases requires to be informed of the state of the assets before it will stay the proceedings at Law : Paxton v. Douglas (1). I have read the affidavits, and, adverting to the nature and state of the property as therein described, I think the account given of it on the part of the executors is satisfactory, and all that could at that period be reasonably required ;" and the motion, by way of appeal to discharge an order for an injunction to restrain pro- ceedings in the action made by Vice- Chancel lor Sir L. Shadwell, was refused with costs (2). 11. Where A., in consideration of being permitted to become administrator of an intestate, agreed to deposit the share of C, a minor, and one of the next of kin, in the hands of a trustee for him, and accordingly deposited £180 with B. in trust for C, subject to the final settlement of the administrator's account; and the share of C. was afterwards ascertained to be £156 ; and having proceeded at Law to recover the £180 from B., and having refused a tender of the difference between £180 and £156, B. was, on a bill filed by him, allowed to lodge £180 in Court to the credit of the cause, and A. was restrained from proceeding in the action (3). (1) 8 Ves. 520. 14 L. J. (N. S.) Ch. 83; 7 Jiir. 503. (2) Vernon V. TkUuson, I VYiAQQ; (3) Fkmingv. FIeming,2 Joncs,SlO. EXECUTORS— ADMINISTEATOES. 703 12. The pendency of a suit in the Ecclesiastical Court to have Paet i. a probate or letters of administration recalled, is not of itself a sect!^^5. sufScient ground to induce the Court to grant an injunction and receiver against the personal representative. And in Connor v. Connor (1), where a bill was filed by a person lifho described her- self as the widow of an intestate, against his mother and sister (the former of whom was his administratrix), for the adminis- tration and distribution of his estate, and for an injunction to restrain the mother from selling or transferring a sum of stock, part of the intestate's estate, and from getting in his outstanding estate, and for a receiver; and the only ground on which the application was made was the pendency of a proceeding insti- tuted by the plaintiff in the Ecclesiastical Court to have the letters of administration recalled ; and there was no allegation that the administratrix was insolvent, or had wasted or had misapplied the assets, or that she had obtained the letters of administration by fraud ; and Vice-Chancellor Sir L. ShadweU made the order ; the Lord Chancellor discharged it on the administratrix consenting to transfer the stock into Court. And in Watkms v. Brent (2) it was held that the institution of a suit in the Ecclesiastical Court for the purpose of recalling probate is not a ground upon which alone this Court will interfere to restrain the executor from re- ceiving the assets. Where, however, the executor had agreed, through his proctor, that the validity of .the testamentary paper by which he was appointed should be tried in the suit to recall probate, an order was made for an injunction and a receiver, and that order was affirmed on appeal (3). And where a will was liti- gated in the Spiritual Court, on a suggestion that it was unduly obtained from a man sick of the plague, the Court, on the motion, ordered that the executor (who was supposed to be insolvent) should forbear to receive the debts of the deceased pendente lite (4). A clear and strong case must be made out for the Court to order an administrator to bring in personal estate unapplied (5) ; but the Court will appoint a receiver of an intestate's personal estate if the administrator is sworn to be insolvent, before his answer (1) 15 Sim. 598. (4) Smallpiecev. Anguish, 1 Ch. Ca. (2) 1 My. & Cr. 97 ; 7 Sim. 512. 75. (3) lb. (5) Scott T. Becher, 4 Price, 346. 704 EXECUTOES— ADMINISTEATOES. Part I. comes in, although the fact of his being abroad (stated in the Sect. 15. plaintiff's aflSdavit) is denied (1). 13. But in Otley v. Lines (2) the Court allowed a general demurrer to a bill filed by a judgment creditor against his debtor (who had been discharged under an Insolvent Act) and the executrix of a will, by which the debtor was entitled to a share of the residue of a testator's personal property, praying an injunction against the executrix to restrain her paying it over to the debtor, and that the plaintiff might be allowed his debt thereout, because a suffi- ciently strong case had not been made out. The Court will 14. Where an insolvent executor is getting in the assets before vent executor probate, the Court will restrain him, and direct the money to be Sll-e paid into the bank (3). probate. 15, The effect of a decree against an administrator entitling him to an injunction against the suit of a creditor, is qualified by requiring an account of the assets, either by his answer or affidavit (4). Distribution of 16. Where a party domiciled in one country has personal estate estate wiU^be ^^ another, though probate of his will in the latter country may be the°ia™of*the S^'^nted for the purpose of getting in his estate, yet such probate domicil, and must be treated as ancillary to the law of the country of the that, though probate of the domicil, and distribution of the estate ought to be directed ac- grantedin^"^ cordingly. And where a British subject domiciled in France made, another during a short visit to England, a will inconsistent with French law, which will was admitted to probate in the Prerogative Court ; on a motion being made for an injunction to restrain the executor This Court SO appointed from getting in the estate, it was held that the Court tion the '^"^^' ^as not at liberty to question the validity of the appointment of a'^^^Sntment^'' executor ; but that, on a suit properly framed, distribution might of executor, be compelled according to the French law (.')). The Court will 17. Where a creditor after a decree (in obedience to which the actionsagainst executor pays away assets) obtains judgment to which the decree Tdecre™'''^*'"^ was not pleadable. Equity will relieve the executor (6). And where executors had pleaded the decree in an administration suit (1) Scott V. Becher, 4 Price, 346. (4) GUjn'n v. Lady Souihnmpton, (2) 7 Price, 274. 18 Ves. 469. (3) Smith V. Ayhwdl, 3 Atk. 566. (5) Thornton v. Curling, 8 Sim. 310. (6) Bank of England v. Mon-ice, 2 Pro. P. C. 465 ; Forrest, 218. EXECUTORS— ADMINISTRATORS. 705 to an action brought by a creditor, which plea was held bad by Part i. the Court of Law and judgment given for the plaintiff, this Court seot. 15. restrained the latter from proceeding against the assets of the " testator, but would not deprive him of any right at Law the judg- ment might give him against the executors personally. The Vice- Chancellor (Sir L. Shadwell), in his judgment, said : " In Kent v Pickering (1) I proceeded on what Lord Eldon is reported to have said in Brooh v. Skinner (2), namely, that where a decree has been made in a suit for the administration of a deceased debtor's estate, if the plaintiff at Law recovers a judgment de ionis testatoris, this Court will not suffer execution to be taken out on such judgment ; but if he recovers de bonis testatoris, et si nan, de bonis pro^riis, this Court cannot interpose to protect the executors from any liability to which they may have subjected themselves. The rule of this Court, as I apprehend, is, that if the executor does, at Law, so manage the matter as to make himself personally liable, this Court will leave him to be dealt with at Law as the Court of Law will permit ; but this Court will not suffer auy judgment that may be recovered at Law to interfere with its own decree. In this case I think that the executors, instead of pleading the decree at Law, ought to have applied at once for an injunction ; but as they thought fit to adopt a different course, the plaintiff at Law is entitled to have the benefit of his judgment as against them ; but this Court will restrain him from using it against the assets of the testator; and, therefore, I shall grant an injunction to restrain him from proceeding against the assets, but not to restrain him from proceeding against the executors personally." (3) And if an executor pleads non est factum, only to a bond, and not ^lene ad- ministravit likewise, he cannot after verdict take advantage of what might have been pleaded to the action. The plea of non est factum is an admission of assets, and he can be relieved only against the penalty of the bond by paying principal and interest, without regard to his having assets or not (4). And in an anony- mous case, in Vernon (5), where an executor pleaded riens entre mains ultra £100 to three several actions, and so upon each action (1) 5 Sim. 5(39. C3) Smles v. Popplnvell, 10 Sim. (2) 2 Mer. 481, n. 383. (4) Ramsden v. Jacl-son, 1 Atk. 294. (5) Vol. i. p. 119. 2 Z 706 EXECUTOES— ADMINISTEATORS. Part I. there was a judgment for £100, and then filed his bill and moved Se™is. ' for an injunction ; the Lord Keeper refused it, holding that in cases proper for Law a man must defend himself by legal pleadings, and that every executor ought to be careful, in the first place, to cover all his assets with a judgment. 18. Where, before the usual decree for an account in a suit by legatees against executors, a judgment had been obtained at Law against them de honis testatoris, et si non, de honis propriis ; a motion after decree to restrain execution upon such judgment was refused with costs, it appearing by the answer of the executors that they had, in fact, misapplied the assets (1). 19. In Edmunds v. Bird (2) Vice Chancellor Sir T. Plumer granted an injunction to restrain an executor, claiming under a will and also by gift from the testatrix in her lifetime, from con- verting furniture and other specific property into money, upon affidavits of undue infiuence. 20. Where an executrix in custody under a writ de excommuni- cato capiendo, issuing from the Ecclesiastical Court, for not ap- pearing to a citation by a creditor to exhibit an inventory, moved for a supersedeas of the writ, disputing the debt upon equitable grounds ; the motion was refused, the Lord Chancellor observing that the application to him was totally destructive of the juris- diction of the Ecclesiastical Court to call upon a representative to give an account of his assets (3). 21. Where there was a transfer of stock of an intestate into the name of himself jointly with that of the husband of one of his two nieces, accompanied with proof of his having said in his life- (1) Lee V. ParJc, 1 Keen, 714. Court, as well as to the parties in the (2) 1 V. & B. 542. cause. An injunction, on the other (3) 'Ihf, King v. Blatch, 5 Ves. 113. hand, where its object is to restrain This case shews the difference he- proceedings in another Court, is directed tween a proceeding in the nature of only to the parties ; neither assumes a prohibition (as this is) and an in- any superiority over the Court in which junction. " A prohibition is a remedy they are proceedins;, nor denies its against an encroachment of jurisdiction, jurisdiction ; but is granted on the sole issues only from a superior Court, is ground that from certain equitable cir- granted on the suggestion that the cumstances, of which the Court that Court to which it is directed has not issues it has cognizance, it is against the legal cognizance of the cause, and conscience for the party to proceed in is directed to the judge of the inferior the cause.'' Eden, Inj. 4. EXECUTOKS— ADMINISTRATORS. 707 time that it was his intention to give the husband the stock at his Paet I. death, in consideration of affection, &c., and that he had trans- seot! 15. ferred it for that purpose ; it was held (if not repelled by counter testimony) to be sufficient proof of a gift of such stock ; and the Court would not continue an injunction granted to restrain the husband, who had administered, from disposing of it (1). 22. The institution of a suit in the Ecclesiastical Court for the This Coui't purpose of recalling probate does not give this Court jurisdiction strain executor ("it would be different if there were fraud," Pepys, Lord Com.), ^""^J'^^jg^ and is not a ground upon which alone this Court will in- because a suit ■^ IS instituted to terfere to restrain the executor from receiving the assets. Where, recall the however, the executor had agreed, through his proctor, that the except (inter vaUdity of the testamentary paper by which he was appointed should fraud*or?ar be tried in the suit to recal probate, an order was made by Vice- here)anagree- . ment that the Chancellor Sir L. Shadwell for an injunction and a receiver, and validity of the that order was affirmed on appeal by the Lords Commissioners. O'him^should Lord Commissioner Pepys said : " There is no doubt that by the ^® ''^^'^'^• rule of this Court, if the representation is in contest, and no person has been constituted executor, the Court interferes, not' because of the contest, but because there is no proper person to receive the assets. If there be a contest who shall be executor or adminis- trator, and there is nothing to shew who is entitled to be considered as sustaining either of those characters, the interference of this Court is quite of course. Lord Erskine thought that a reason against, interference existed whenever the Ecclesiastical Court could commit administration pendente lite (2) ; but Atkinson v. Henshaw (3) has decided that there is nothing in that distinction " — and that in the present case there was no ground for interference on account of the improper conduct of the parties (4). 23. Upon a bill for an account of the personal estate come to the hands of the defendant, and for a receiver and an injunction, until the grant of letters of administration, against an executor de son tori, and administration was taken out by another person after the bill had been filed ; Vice-Ohancellor Sir W. P. Wood held, on demurrer for want of equity to the amended bill, that the admini- (1) George v. Howard, 7 Price, 646. (4) Watkins v. Brent, 1 My. & Cr. (2) Richards v. Ohave, 12 Ves. 462, 97 ; 7 Sim. 512. (3) 2 V. & B. 85. 2 Z 2 708 EXECUTORS— ADMINISTRATOES. Part I. strator might be properly made a party by amendment. The bill Chapter IV. ,,, ^\ \ ^ / ■, ■ ■ ^ ^- rju Sect. 15. was amended by stating that no grant of admmistration had been ~ made at the time of filing the bill, but that since that time letters of administration had been granted to Ann Smith, and that an order for a receiver and injunction had been made, by adding Ann Smith and her husband as defendants, and by praying an account of the personal estate against the new defendants, as well as against the original defendant. The Vice- Chancellor, in his judgment, said : " The plaintiffs in the first instance had a clear right to file this amended bill. It asks relief against the admi- nistrator. The original bill was against the executor de son tort alone, and it is quite clear that that bill might have been de- murred to if it had asked simply for an account and administration. Now, if the plaintiff is entitled at any stage of this suit to have the administrator before the Court the demurrer must be over- ruled. It cannot be disputed that the personal representative is a necessary party to a suit in which an account is asked of the receipts of an executor de son tort "(1). And in Overington t. Ward (2) it was, upon demurrer, held by the Master of the Rolls (Sir J. Eomilly), that a bill to protect a testator's estate until a legal per- sonal representative has been appointed, and also to administer the estate, is irregular, and that it should be limited to the fii'st object ; but the Master ' of the Rolls gave leave to amend the bill by striking out the paragraph of the prayer of the bill asking for the administration of the real and personal estate, but said he would give no costs. In Smith v. Tebbitt (3) the Court of Probate — the judge stating that the Court would for the future assimilate the practice of that Court to that of the Court of Chancery, and grant administration pendente lite wherever the Court of Chan- cery would appoint a receiver — granted administration pendente lite, but ordered the administrator not to remove property (diamonds) deposited at the Bank of England after the death of the de- ceased, and directed the administrator to invest the rents as he received them. 24. When an administratrix of an intestate is sued by a creditor as administratrix, she may obtain an order for taking the accounts, (1) Beardmore v. Gregory, 2 H. & M. 491. (2) 34 Beav. 175. (3) 16 L. T. (N. S.) 896. DEVISEE. 709 and then for an injunction to restrain such action pending the Pam i. taking of such accounts, under 23 & 24 Vict. c. 38, s. 14 (An Act ^'^CT^'15. ' to further amend the Law of Property), she undertaking to be answerable in damages, and the affidavit of her solicitor is suf- ficient (1). 25. It is not a violation of an injunction restraining a party from suing the executors or other representatiTes of the testator, to sue the heirs (2). 26. Where an executor in the United States, residing out of the state, and being insolvent, is seeking to obtain a fund belonging to the estate, which it is feared may be wasted, Equity may and ought to restrain him by injunction from prosecuting his pro- ceedings at Law until he submits himself to the jurisdiction of the Court (3). 27. A suit brought by an administrator for the sole benefit of persons neither parties nor privies, and having no title themselves, in order to enable them to use the ^intestate's title against the tenant in possession, will be enjoined (4). Sect. 16. Devisee. 1. Where upon a bill to establish a will and to have the trusts executed, an issue devisavit vel non had been directed to be tried at the bar of the Court of King's Bench, and there was a verdict by a special jury in favour of the will ; and upon the hearing the cause on the equity reserved the will was decreed to be established, and the trusts to be executed, and the necessary accounts to be taken, which were executed and taken accordingly ; and afterwards the testator's heir-at-law died, having by his will devised the residue of his real estate to one of the defendants, his second son ; and the defendants, notwithstanding the decree, having brought an eject- ment against two of the tenants of part of the estate, the plaintiffs filed their bill in this Court for an injunction to stay them from (1) Cole, In re, 17 L. T. (N. S.) (3) Dougherty v. Walker, 15 Geo. 494. 442 (Amr.) (2) Dale v. Bosevelt, 1 Paige, 35 (4) Pierce v. Jones, 23 Geo. 374 (Amr.) (Amr.) 710 SOVEEEIGN— SOVEREIGN PEEEOGATIVES. Pabt I. proceeding at Law for recovery of any part of the estates devised Seot. 16. by the will of the original testator j Lord Chancellor Bathurst at the hearing decreed the injunction granted in this cause for stay of the defendants' proceedings at Law for and touching any of the matters therein in question to be perpetual, but did not give costs on either side (1). 2. Where one accepts land devised to him, on condition of ratifying a previous sale by the testator, and sells portions thereof; he may be perpetually enjoined from proceeding at Law to avoid the sale by the testator (2'). Sect.' 17. Sovereign — Sovereign Prerogatives. The right to 1- The right to regulate the coinage and issue of notes for aKe"and issue' P^'Jiiient of money, as part of the circulating medium, is part of °* "i"*? If *be sovereign prerogative recognised by the law of nations, and sovereign the law of nations is part of the Common Law of England ; and money being the medium of commerce, a foreign sovereign in amity with this country suing in the Court of Chemcery to protect his prerogative right of issuing coin, or paper money, wiU have This Court his right protected from invasion ; and the Court will protect the Som^inraskm property to which he is entitled as sovereign, or of his subjects, a foreign being; represented by him, where a damage to such propertv is sovereigns ox j > ^ o r s: j prerogative done or threatened by persons resident within the jurisdiction of coin or paper- the Court, and such injury is alleged in the biU. And where the J^g°pj^~jty^g defendants, resident in this country, had manufactured a large ^^^''?i'^ '^ quantity of documents which purported to be the notes of a foreigu sovereign, and state, the kingdom of Hungary, in order to use it, when opportimity subjects rppre- should occur, for purposes hostile to the sovereign ruling power of sented by hun. ^t^^^ kingdom, they were— at the suit of the Emperor of Austria as King of Hungary, alleging that the introduction of such notes would cause great detriment to his subjects, on the ground of preventing an injury and damage to the property of the plaintiff as sovereign, and to the property of his subjects, whom he had a right to represent in an English Court of Justice, and upon the (1) Lowe V. JoUiffe, Dick. 388. (2) Lcniiard v. Croiumcliii, 1 I'aIw. Ch. 206 (Amr.) SOVEREIGN- SOVEEEIGN PREEOGATIVES. 711 ground of injury to the subjects of the plaintiff by the introduc- Part I. tion of a spurious circulation — decreed to deliver up the notes and *^seot^'i7^" the plates from which the notes had been manufactured to be destroyed; and the defendants were restrained by a perpetual injunc- tion from manufacturing documents purporting to be notes of that state (1). But, semble,per Lord Justice Turner, differing from Vice- Chancellor Sir J. Stuart, the Court will not interfere to protect the invasion of a mere soyereign right, nor interfere in aid of the prerogative of a foreign sovereign (2). And the Court of Appeal, overruling Vice-Chancellor Sir J. Stuart's decision on this point, refused to interfere to prevent the use in this country of the royal arms of Hungary ; and the decree of the Vice-Chancellor prohibiting the defendant Kossuth from the use of the royal arms of Hungary was varied in that respect, the Lord Chancellor, Lord Campbell, observing that it would appear that they might be innocently used by all Hungarians, and, he presumed, by all mankind (3). 2. Where the East India Company, in its sovereign capacity, Courts of Law had attacked, defeated, and made prisoner a native sovereign, and co°nizance^of at the same time had captured as booty of war some property *''** °^ ^j^^^ ^ •' r r J exercised by being jura regalia of the raj, and the ex-rajah filed a bill for relief governments ■ , o 1 T-> n <-!• T in matters of With respect to such property ; tne Master ot the Itolls, Sir J. state arising Eomilly, held, that the Court had no jurisdiction to interfere ; as "'^ ° '^^^' Courts of Law cannot take cognizance of acts of power exercised by governments in matters of state arising out of war, but they will preserve the private rights of sovereign princes, if by so doing the sovereign acts of the state are not interfered with. In this case, in 1834, the East India Company conquered and annexed Coorg, and took the rajah prisoner — he was then the owner of two government promissory notes of the East India Government. Some time after the annexation the Company took possession of the notes, and detained the ex-rajah in India as a captive until 1852, when he was allowed to come to England for a short visit. During his residence in England he instituted a suit against the company praying that the promissory notes or securities might be given up to the plaintiff, and for an account and payment of what (1) Emperor of Austria v. Day and 483 ; 9 W. E. 568 ; 7 Jur. (N. S.) 639 ; Kossuth, 2 Giff. 628 ; 7 Jur. (N. S.) 30 L. J. (Ch.) 690. (2) lb. (3) lb. 712 AMBASSADOES. Part I. Chaitbb IV. Sect. 17. Transactions of indepen- dent sovereign states between each other are governed by other laws than those which muni- cipal Courts administer. should be found due for principal and interest, and that the defen- dants might be restrained from cancelling or erasing the name of the plaintiff from the books of the public debt of the company ; upon the ground that the notes were his private property, and that they were not capable of seizure, and had not been confiscated as prize of war, being debts to which the public faith of the British Government in India was pledged ; but the Court held, that the notes belonged to the ex-rajah as part of the raj, and that the British Government in India having taken possession of them in the exercise of its sovereign and political power, that was an act which was not subject to the control of the Court (1). And in Secretary of State for India v. Kamachee Boye Sahahor (2) it was held that transactions of independent sovereign states between each other are governed by other laws than those which municipal Courts administer, and that such Courts have neither the means of decreeing what is right, nor the power of enforcing any decisions which they may make. The Courts here cannot make an order against a foreign am- bassador who does not sub- mit to the jurisdiction ; but Chancery can restrain a third party handing a fund to him the right to which is in dispute. Sect. 18. Ambassadors. 1. Although the Courts in this country cannot make an order against a foreign ambassador who does not submit himself to the jurisdiction, yet the Court of Chancery will restrain a third party from handing over to him a fund the right to which is in dispute, notwithstanding his title to the fund may be absolute at Law. And where certain securities had been deposited by the plaintiffs in the Bank of England in the name of the ambassador of a foreign state, in order to secure the performance of a contract between the plain- tiffs and a foreign government, and the ambassador threatened to withdraw the deposit on the ground of an alleged breach of contract by the plaintiffs, which they denied, under the circumstances, to be such breach ; Vice-Chancellor Sir W. P. Wood held, that it was not competent for the plaintiffs to move against the ambassador, but that an interim injunction might be granted against the Bank (1) Wadeerv. East India Company, 7 Jur. (N. S.) 350 ; S. 0. sub. nam. I'ler Hajmiilur ]\'aikir v, Easi Jridia i'oin- pamj, 30 L, J. (Ch.) 226 ; 9 W. K. 247. (2) 13 Moo. P. C. 22 ; 7 Moo. Ind. App. 17(3. MAGISTEATES. 713 to restrain them from parting with the fund, and that under this Pakt i. Ohapteh TV order the Bank would be protected against any proceedings by the sect. is. ambassador (1). 2. In Service V. Casfaneda (2) it was held that an injunction There can be could not be sustained against the agent of a foreign government against an whose business in this country was only that of settling certain fOTeignmvern- claims (in respect of one of which the injunction was asked) upon ment acting' the foreign government, but whose acts in that capacity were done bassador of entirely under the ambassador of the foreign country resident in * """^ " this country. Sect. 19. Magistrates. 1. The 21 Geo. 3, c. 70, s. 24, protects provincial magistrates in India from actions for any wrong or injury done by them in the exercise of their offices, giving them only the same measure of exemption as that which is given to magistrates in England under similar circumstances, that is, an exception in cases where they have acted land fide; but where they have exceeded their jurisdic- tion, the onus ^oi shewing that they knew, or had the means of knowing, the want of jurisdiction, lies upon the party complain- ing (3). 2. In Frompion v. Tiffin (4) the Vice-Chancellor said, that he Magistrates (\lQTQ) thought that the magistrates had no power, under the 5 & 6 Will. 4, restrained c. 50, to cut down trees, which might damage the highway if they treer^^knted had been planted for ornament or shelter ; and the Vice-Chan- in the high- . way. cellor refused to dissolve an injunction which had been obtained to restrain the defendant, a person who was acting under the parish authorities of H., from cutting down, &c., trees before the plaintiff's house, until an application had been made to the magistrates. 3. Though the 20 & 21 Vict. c. 43, s. 6, enacts that the decision of the Superior Court on the question of law raised by a special case . stated by justices " shall be final and conclusive on all parties ;" the Lord Chancellor of Ireland held, that, notwithstand- ing these words, the Irish Court of Chancery had jurisdiction to (1) Gladstone v. Musurus Bey, 1 H. (2) 2 Coll. 56. & M. 495 ; 9 Jur. (N. S.) 71 ; 32 L. J. (3) Oalder v. Halkett, 3 Mont. 28. (Ch.) 155.' (4) 2 Jur. 986. 714 FELONS— FELONY. Part I. allow the party at whose instance the special case had been stated Seot. 19. ' liberty to declare in prohibition (1). Sect. 20. Fdons — Felony. Though a 1. Where the clerk to a banking firm, who had misappropriated be°sued'in*'re- the money of the firm, died, before the fraud had been discovered, spect ofa intestate, having considerable property, which was placed by the felon be dead widow in the custody of the bank ; and she had subsequently before felony ,._,...„,. - , discovered, obtained admmistration of his estate, and to recover the property remedy'm re- ^^^ Commenced proceedings against the bank, who filed their bill spect of the fgj. ^j, jniuuction and administration of the estate ; Yice-Chan- felonioua act. '' cellor Sir J. Stuart overruled with costs a demurrer by the admi- nistratrix which had been made to the bill, on the ground that the bill alleging a felony no civil remedy lay in respect thereof (2). The Vice-Chancellor said : " The rule of law, that a felon cannot be sued upon a civil action in respect of a transaction which amounts to felony, is a rule of pubUc policy. The reason of the rule is, that persons who have been defrauded by felonious acts should do their duty to the public by prosecuting for felony before they seek redress for the private injury to themselves in a civil Court ;" but " where public policy ceases to require its operation, the rule ceases to operate also " (3) ; and the Yice-Chancellor said that in this case the clerk who committed the act said to be felonious died before the felony was discovered, and the operation of the rule of public policy never was required, and the prosecution for felony had become impossible. But upon a bill claiming to follow policies of life assurance effected by the plaintiffs' clerk with the plaintiffs' money procured by embezzlement and transferred to the defendants for valuable consideration, but with notice ; Lord Chancellor Eldon allowed a demurrer, on the ground that the transaction amounted to felony by the 39 Geo. 3, c. 85, and that therefore no actiou could be maintained for the money; and a (1) Devonshire (Duke) In re, 3 Ir. 783 ; et v. Chowne v. Baylis, 31 Beav. Eq. Rep. 412. 351. (2) Wickham v. OatrilJ, 2 Sm. & (3) Stone v. Marali, 6 B. & C. 562; Giff. 353 ; IS Jur. 768 ; 23 L, J. (Oh.) i\ Maysh v. h'ealhir/, 1 Biag. N. C. 217. LIBEL. 715 principle of policy interfering ; nor, for the same reason, could Part i. an account have been compelled ; and secondly, that the policies sect^'Io. ' could not be considered the plaintiffs' property in the hands of the defendants (1). Sect. 21. Libel. 1 . The Court has no jurisdiction to stay the publication of a The Court has libel by injunction (2). And in Gee v. Pritchard (3) Lord Chan- to s^j^^puW^" cellor Eldon said that the publication of a libel was a crime, and catjonofalibel *- ' unless It be a that he had no jurisdiction to prevent the commission of crimes, contempt of excepting, of course, such cases as belonged to the protection of infants, where a dealing with an infant might amount to a crime, an exception arising from that peculiar jurisdiction of this Court. And whether a libel be public or private, the only method is to proceed at Law, the Court of Equity has no cognisance unless it is a contempt by being an abuse of the proceedings (4). But where in a case of libel the party injured instead of proceeding by indict- ment, brought an action for damages, and the defendant pleaded in justiiication the truth of the matters, and filed a bill for a com- mission to examine witnesses abroad for discovery, and for an injunction, &c. ; the Court held, on demurrer, that the fact of libel being an indictable offence would not repel the right to the common defences in the civil action, and that the defendant was entitled to the ordinary means of proving the truth of his pleas, but that such bill must shew the materiality of the evidence to support the plaintiff's case at Law, and that the bill ought therefore to shew what were the pleas, or refer to them, and that it was not necessary to allege that the witnesses were residing in England at the time of the bill (5). (1) Cox V. Paxton, 17 Ves. 329. (5) Macaulay v. Shackell, 1 Bli. (2) Clark y. Freeman, 11 Beav. 112. (N. S.) 96; v. Shackell v. Macaulay, (3) 2 Sw. 413, 3 L. J. (N. S.) Ch. 40. (4) Anm. 2 Atk. 469. ( 716 ) Part I. Sect. 22. Crimes. ' Chapter IV. 1. The Court of Chancery has no iurisdiction to prevent the TheCoiirthas . . „ . , ,\ i-,. . n ■,■^ ■, ■ • ^ no jurisdiction commissron 01 crimes (and the publication ot a libel is a crimej, orimes'except ^^^^P^ ™ such cases as belong to the protection of infants, where in protecting a dealing with an infant may amount to a crime ; but this excep- tion arises from this peculiar jurisdiction of the Court (1). 2. It is well established by authority that this Court has originally no jurisdiction whatever either to enjoin or regulate the proceedings upon an indictment, but circumstances may give it ; as, for instance, where the relators in an information are the per- sons prosecuting the indictment, the Court would have control by order personally affecting them ; but Lord Chancellor Eldon was not satisfied that he had the same control over the defendants who had not come in (2). And in Pilhington v. City of York (3) the Court granted an injunction to stay proceedings on an indict- ment for trespass, two bills having been filed in Chancery by the plaintiff and defendant to try their right to the fishery in question. But the Court Though it is clear that the Court of Chancery has no jurisdiction acts amount- to restrain acts which amount to the commission of a crime only if the "lead to ^"^^ being merely criminal or illegal, yet it will interfere by the destrac- injunction to stay any proceedings, whether connected with crime tion or dete- , . riorationof or not, which go to the immediate, or tend to the ultimate, proper y. destruction of property, or make it less valuable or comfortable for use or occupation. And where the defendants, who were officers of a trade union, gave notice to jvorkmen by means of placards and advertisements that tliey were not to hire themselves to the plaintiffs pending a dispute between the union and the plaintiffs ; upon a bill praying an injunction to restrain the issuing of the placards and advertisements, and alleging that by means thereof the defendants had, in fact, intimidated and prevented workmen from hiring themselves to the plaintiffs, and that the plaintiffs were thereby prevented from continuing their business, and that the value of their property was seriously injured and materially diminished ; Vice-Chancellor Sir E. Malins held, upon demurrer, that the acts of the defendants, as alleged by the bill, amounted to (1) Qee V. Pritchard, 2 Sw. 413. (2) AU.-Gen. v. Cleaver, 18 Ves. 220. (3) Dick. 84. REPUTATION— MERCANTILE CREDIT. 717 crime, and that the Court would interfere by injunction to restrain Part I. such acts, inasmuch as they also tended to the destruction or ^seot^IJ".^' deterioration of the employers' business and property (1). 3. Chancery has no jurisdiction to restrain quasi-ciimmal pro- ceedings on the part of the municipal authorities of a city for repeated violations of an alleged invalid ordinance (2). Sect. 23. Eejputation — Mercantile Credit 1. The Court has jurisdiction to restrain the publication of any The Court has document tending to the destruction of property, whether consist- Sain pubii- ing of money, or of professional reputation by which property is ''^'io" »*' ^^^y acquired ; and the publication of a notice stating that the plaintiff tending to the was a partner in a bankrupt firm was restrained. The Vice-Chan- property"" ° cellor. Sir E. Malins, said : " What is property ? One man has ^^^l^ g^^s property in lands, another in goods, another ia a business, another business, skill, . . or reputation. m skill, another in reputation ; and whatever may have the effect of destroying property in any one of these things (even in a man's good name) is, in my opinion, destroying property of a most valu- able description. But here it is distinctly sworn to, and could not be denied, that the effect of this would be seriously damaging to the plaintiff's business of a merchant. Now, the business of a merchant is about the most valuable kind of property that he can well have. Here it was the source -of his fortune, and therefore to be injured in his business is to be injured in his property. But I go further, and say, if it had only injured his reputation it is within the jurisdiction of this Court to stop the publication of a libel of that description which goes to destroy his property or his reputation, which is his property, and, if possible, more valuable than other property " (3). (1) Springhead Spinning Company (3) Dixon v. Holden, L. R. 7 Eq. T. Riley, L. R. 6 Bq. 551 ; 37 L. J. 488 ; 17 W. R. 482 ; 20 L. T. (N. S.) (Oh.) 889 ; 16 W. R. 1138 ; 19 L. T. 357 ; v. supra. Springhead Spinning (N. S.) 64. Company r. liiley, L. R. 6 Eq. 551 ; (2) Williams v. Detroit, 2 Mich. 560 Bouth v. Webster, 10 Beav. 561 ; Clark (Amv.) V. Freeman^ 11 Beav. 112. ( 718 ) CHAPTER V. CoKPOEATiONS — Qdasi Coepoeations — Feiendly and Benefit Societies. Part t. Sect. 1. Municipal Corporations. 1. In Attorney-General r. Avon {Portreeve, &c.) (1) the Master of the Eolls, Sir J. Eomilly, held, that the Attorney-General may- maintain a suit to restrain the alienation of corporate property pending the granting of a charter, and to recover the property after the charter is granted ; and that the alienation of corporate property, after formal notice has been given by the Crown of its intention to grant a charter, may be impeached under the 97th section of the 5 & 6 Will. 4, c. 76. That the Court will not inquire into the validity of a charter, but will act upon it as being valid until proper proceedings are taken to set it aside ; and that a charter of incorporation granted under 7 T\'^ill. 4 & 1 Vict, c. 78, to a borough previously possessing a body corporate, but not named in the schedules to 5 & 6 Will. 4, c. 76, confers upon it the same powers and privileges as if it had been so named. That the corporation established under the charter is identical with that previously existing, although the governing body may be different, and the property of the old corporation becomes vested in the new by virtue of the charter (2). However, in this case, where a cor- poration, from time immemorial owning freehold estates and a town hall, had not been made subject to the provisions of the 5 & 6 Will. 4, c. 76, and by the Aberavon Market Act, 1848, the corporation was empowered to construct a market and market- place, and to levy and receive rents and tolls, which were to be ap- plied, ilrst, in defraying the costs of obtaining the Act ; secondly, in making and maintaining the buildings, and in paying off borrowed (1) 9 Juv. (N. S.) 1117; 11 W. E. 709. (2) lb. MUNICIPAL COEPOEATIONS. 719 moneys ; and, thirdly, to such objects as the corporation should Pakt i. . Ohapteh "V think fit; and in 1860, pending an application by the inhabitants seot. i. for a charter of incorporation, the corporation had sold all their property, except the town hall and the market; and early in 1861, after an intimation that the Lord President would recommend the Queen to grant the charter, they sold the town hall, and agreed to let the rents and tolls of the market to J. for fifty years at an annual rent of £5 in consideration of a fine of £600 ; and on the I5th of March, 1861, an original information was filed praying a declaration that the corporation was not authorized so to demise or lease the rents and tolls, and that any such demise or lease would be a breach of trust, and praying an injunction accordingly ; and on the 2nd of July, 1861, a new charter had been granted to the inhabitants ; and on the 6th of February, 1862, the informa- tion was amended by making the mayor, aldermen, and burgesses, under the new charter, defendants, and praying a declaration that the market, market-place, &c., and the lands belonging thereto, and all rights to levy rents and tolls, and all other the property and rights of the corporation, had become vested in the new cor- poration, and that the old corporation might be decreed to deliver up possession, and that inquiries and accounts might be directed to ascertain what property belonged to the old corporation at the date of the new charter ; and the corporation insisted that there was no trust for the benefit of the inhabitants ; the Lords Justices having come to the conclusion that this was so, except as to the property under the Aberavon Market Act, discharged a decree of the Master of the Rolls in conformity with the prayer of the amended information, and held that no relief to enforce rights arising under the new charter could be given upon an information filed before the grant of that charter, and that the only decree that could be made upon the information was to restrain leases of the market property upon fine (1 ). 2. The Lords Justices, in Galloway v. City of London (2), held, that if the discretion which a corporation is bound to exercise as a public body is fettered by any agreement with a third party, the Court will restrain it from exercising its compulsory powers of (1) Att.-Oen.^. Avon {o\heT\s\se Aberavon, Portreeve, &c.), S3 Ij. J. (Ch.) 172. (2) 10 Jur. (N. S.) 552 ; 12 W. E. 891 ; 10 L. T. (N. S.) 439. 720 MUNICIPAL COEPOEATIONS. Paut I. Ohaptek v. Sect. 1. Though per- sons having special statu- tory powers cannot exer- cise them for collateral purposes, it is different with an existing public body entrusted with the duty of making public improvements. Town council restrained (here) taking lands from another party ; such powers in a corporation to enable them so to acquire land must be exercised hond fide for the purposes for which the powers were conferred, and not for ulterior purposes. And where the Corporation of London was, by statute, empowered to construct a market within the City, to lay out a new street as an approach thereto, to purchase property compul- sorily for these- purposes, to grant leases of property taken, and if any purchased property was not required to appropriate the same by sale or otherwise as the corporation might think fit ; and it was likewise provided, that the rents reserved by the leases should be applied for keeping up the market ; and the plaintiff was seised of property which the corporation was authorized to take, but of which only a small portion was required for the purposes of the statute ; and the corporation gave him notice that they required all his land, their object being to dispose of the portion not required to a railway company in accordance with an agreement made with the company before the passing of the statute under which they proposed to take ; the Lords Justices, reversing a decision of Vice-Chancellor Sir W. P. Wood, upon the grounds above stated, restrained the corporation from exercising their com- pulsory powers against the plaintiff. But the House of Lords (1) reversed this decision of the Lords Justices, and held that the plaintiff Galloway was not entitled to the injunction, on the ground that although where persons have special powers con- ferred on them by Parliament for effecting a particular purpose, they cannot be allowed to exercise those powers for any purpose of a collateral kind, and that, therefore, a company authorized (making due compensation) to take compulsorily the lands of any person for a definite object may be restrained by injunction from any attempt to take them for another object, yet the case is dif- ferent where an existing public body, such as the corporation of a city, is intrusted by the Legislature with the duty of making public improvements in its city ; the powers thus iatrusted to it for such a purpose vill not be subject, as in the other case, to a strict and restrictive construction (2). 3. Where a town council (being also the local board of health) (1) L. R. 1 H. L. 34. (2) Sed V. Spokes v. Banbury BoarrJ of Health, 35 L. J. 105. MUNICIPAL OOEPOEATIONS. 721 of a borough appointed, under powers contained in their local Act, Paet i. a "building and improvement committee," whose duty it was to sect. i, execute the powers delegated to them by the town council under g^^ aotine sect. 34 of 21 & 22 Vict. c. 98 (the Local Government Act, 1858) ; "pon a notice ,..„.,. . . IT , 1 . made after and the plamtifi, having an intention of pulling down his manu- their com- factory in a street of the borough, and of erecting a new one, sent approved of a a plan of the proposed new building to the surveyor of the town ^{^jiiJ^^had council, who returned it with the written approval of the com- acted upon, mittee, accompanied by a printed common-form note, stating that the approval of any plan by the committee referred only to such matters as were required to be set forth therein in accordance with certain by-laws (which had been made under the above-named statute), and that it gave no authority for making any projection on the front of any building into any street beyond the proper line of it ; and the plaintiff having, after receiving such approval, pulled down his manufactory, received a notice from the town council, acting under sect. 35 of the same statute, that any building thereafter to be erected must be built on the line marked " red " in the plan thereto annexed, which line was about thirteen feet behind the mark on the plan approved by the committee ; and the plaintiff having thereupon filed a bill to restrain the town council from acting upon their notice, Vice-Chancellor Sir J. Stuart held, that the town council were not at liberty to give any such notice after the approval by their committee ; and an injunction was granted, and afterwards made perpetual, to restrain the town council from interfering in any way with the erection of the build- ing in accordance with the plan approved (1). Sect. 34 of the 21 & 22 Vict. c. 98, empowers a town council, being a local board, to make a by-law requiring to be given to them a notice, plan, &c., of a new building ; and the 35th section applies only to buildings that have been taken down " without any previous approval of a plan, &c., for their re-erection," &c. (2). 4. Where the d!efendants were empowered under their Acts to alter a footway, but the plaintiffs had sustained, and would sustain, injury thereby, Vice-Chancellor Sir J. Stuart refused to restrain the defendants from raising a footway, under powers contained in (1) She V. Bradford {Mayor, &c.), 4 Giff. 262 ; 9 Jur. (N. S.) 815. <2) lb. 3 A 722 MTINICIPAL COEPOBATIONS. Part I. local Acts (which incorporated the Lands Clauses Act), in front of Chapter V Sect. 1. the plaintiffs' house, and thereby preventing access to a warehouse, and from otherwise damaging their property ; but it was referred to Chambers to ascertain and certify the amount of injury, and what would be a proper sum to be awarded by way of damages in respect of such injury (1). Where the 5. "Where the Crown has been in possession of lands for more been in pos- than 160 years, and a corporation, who originally claimed under more°thaii various charters granted by the Crown, and particularly charters 160 years, of Edward VI., and Henry VIII., and Charles II., refrains from and a corpo- . ... ration has not asserting their legal rights, having had no opportunities of doing legal rights SO during such period, the Court will not interfere in Equity, but Z'partfS re^it tlie parties to their legal remedies (2). be left to their legal remedies. A suit against 6. Where a burgess filed a bill against a corporation not mthin to enforce"*'^ the Municipal Corporation Act (5 & 6 Will. 4, c. 76) ; and their mS be'filed solicitor, alleging that they were trustees of estates for themselves, by the Attor- the town, and the inhabitants, and that he, as a senior burgess, ney-General, and not au was individually entitled to rights in the lands, most of which had member— and been Sold, and praying that the corporation might be restrained no^indf^M^^l f™™ Selling what remained of the estates, and for a discovery claim for com- relating to the mortgaged estates, and for accounts ; the Master of pensation out of purchase- the EoUs, Sir J. Komilly, held, on demurrer, that if the plaintiff lauds m which ^^^^ ^^J right he was entitled to it in his corporate, and not in his ¥^1'^™^'^ individual, capacity (3) ; and that a suit against a corporation to pasturage. enforce public trusts must be filed by the Attorney-General, and not by an individual member, though he allege himself entitled to a separate benefit; and that if a burgess claims an individual right of pasturage in a part of the corporate estates, it must be • considered as made in his corporate, and not in his individual, capacity ; and where the particular lands had been sold, the Court held, that no distinct claim could be made by the burgess indi- vidually for compensation out of the unsold property of the corporation (4). (1) Wedmorf. v. Bristol {Maijor, etc.), tion ) v. Att.-Oen., 5 L. T. (N. S.) 420. 7 L. T. (N. S.) 459. (3) Evan v. Corporation of Avon, (2) Kingston- upon-IMl {Corpora- 29 Beav. 144 ; 30 L. J. (Ch.) 165. (4) lb. MUNICIPAL CORPORATIONS. 723 7. A corporation, being lords of a market and owners of the Pakt I. soil, is entitled at Common Law to change the site of a market suci. i. held in a borough ; but where the corporation, acting as a local ^ corporation board rather than in their corporate capacity, takes steps under lords of a market and the Local GoTernment Act, 1858 (21 & 22 Yict. c. 98), to set up a eoii can, at market in a new place, it can only act under the powers and subject change the ' to the provisions of that statute, and is not entitled to fall back on ^^j,g"*g'^a^ its Common Law right (1). But upon a bill by occupiers of houses local board in the street where the market had been immemorially held, to Local Govern- restrain a proposed removal of such market on the ground of in- '^^^g j^^^ terference with their rights of stallage, Vice-Chancellor Sir W. P. ""'j ^'i' Wood held, that the Court would require the right of stallage to po-wers of that be decided at Law before granting an injunction to restrain a corporation from interfering with such rights of stallage where the right has not been admitted by the corporation (2) ; and the Court said it was a strong prima facie case to be tried, whether the defendants were not " establishing " a new market under sect. 50 of that statute, by setting up a new market at a short distance from and in lieu of an ancient market, and not a mere removal (3). 8. Where, by an Act of Parliament, a corporation was directed Corporation to cause a piece of land to be drained and levelled, and kept in a mftt^ng a ^^^' proper condition, for the purpose of public recreation, the Court ^''^^^'j^^ected restrained the corporation by iniunction from permitting a cattle by an Act to be kept for fair to be held on such piece of land (4). recreation. 9. The 95th section of the Municipal Corporation Act (5 & 6 Will. 4, c. 76), which enables municipal corporations to renew leases on a fine in cases where sanctioned "by ancient usage or by custom or practice," at " a fine certain," or where they " have ordinarily made renewal" upon " an arbitrary fine," is to be construed liberally ; but the word " renewal " in this Act does not mean a mere custom to let on lease at different rents ; and though the renewals need not be on precisely the same terms, there must be such a uni- formity as to shew that the same lease has been renewed. And where leases were granted by a municipal corporation of the same property in 1778, 1798, and 1824, to the same lessee and his (1) Ellis V. Corporation of Bridg- (3) lb. nmth, 2 J. & H. 67 ; 9 W. R. 331. (-i^AU.-Gen.Y. Southampton (Mayor, (2) lb. *c.), 2 Giff. 363. 3 A 2 724 MUNICIPAL COEPOEATIONS. Pabt I. assigns, for twenty-one years, at a rent of 5s. ; and in the last two Chapter v. . , ^ n „ ^ ■» i i i i xi Sect. 1. instances alone a fine of Is. M. had been taken, and the covenants varied; and there was an interval of six years between the second and third, during which there was a yearly tenancy ; the Master of the KoUs, Sir J. Komilly, held, that the case did not come within the 95th section of the Municipal Corporations Act, and that a renewal could not be granted at an under value, and on a fine ; and he said that, in his opinion, there had neither been a uniform practice of renewal in this case, in any sense of the term, within the proper construction of this clause ; nor had the leases been uniform in their character (1). On an inter- 10. On an interlocutory motion for an injunction as to a matter motion for an merely pecuniary, the plaintiff cannot succeed without satisfying to^a matter^^ the Court, not merely that there is a case to be tried, but that merely pecu- there is some probability of the bill not being dismissed at the niary, plaintiff . . . . . must satisfy hearing ; and an information to restrain a municipal corporation Court there is /. i • ii i. i j- j • • ^ j- , i some proba- irom applying the borough lund, or raising a rate for the purpose biifnot^being °^ opposing a bill in Parliament, the object of which was to inter- dismissed, fere with the sewage and drainage of the town, was held by the Lords Justices not a suit in which success was sufficiently probable to entitle the relator to an interlocutory injunction (2). In this case, upon an intended application by a municipal corporation of part of the surplus borough fund arising from their borough rates in payment of the costs of a partially successful opposition to the passing through Parliament of a bill for the construction of waterworks, containing powers so to interfere with the stream of a river passing through the borough town as to prevent its efficient action in the removal of the sewage of the town, and thereby indirectly affecting the value of the rateable houses in the borough, the tolls of the market, and other property constituting the borough fund, it was held not to be so clearly contrary to the spirit of the clauses of the Municipal Corporations Act (5 & 6 Will. 4, c. 76) — which provides for the application of such surplus fund — as to form the ground of an interlocutory injunction by the Court of Chancery restraining such application (3). (1) Att.-Gen.v.Oorporatimof Great 5 De G. M. & G. 52; 18 Jur. 299; Yarmouth, 21 Beav. 625. 23 L. J. (Ch.) 429. (2) Att.-Gen. v. Wigan {Mayor of), (3) lb. MUNICIPAL COEPOEATIONS. 725 11. The corporation of L. had, from time immemorial, exercised Pabt i. • • ■ Chafter "V" the functions of superintending the measuring and unloading seot. i. oysters at the market of L. This they did by their officer^, " the yeomen of the waterside," who appointed eighteen " deputy day oyster meters," who by custom were entitled to the monopoly of this employment. There was no immemorial fee ; but in 1760 8s. per twenty bushels for the first 100 bushels, and 4s. per twenty bushels for all additional quantities loaded, were, on a trial for quantum meruit, found by the jury to be reasonable charges. In addition to this, purchasers of oysters usually paid to the holds- men, or persons actually performing the work, a gratuity of Id. per peck. The offices were saleable ; but if a deputy day oyster meter died without having sold his office, it reverted to the cor- poration of L. Between 1836 and 1850 two offices thus fell vacant, and were kept by the corporation in their own hands, they con- forming to the usages of the body of the deputy day oyster meters. Those usages were mainly such as directed the rotation of em- ployment, and the throwing all payments (except the Id. per peck which went to the holdsmen) into a common stock, which was equally divided amongst them. The corporation of L., wishing to put an end to this monopoly, appointed two of the common holds- men to the two offices then in abeyance upon the express agree- ment that they would renounce the payment of Id. per peck, and disregard the rota, and not put their earnings into the common fund, but retain every man his own. On a bill filed by the other sixteen deputy day oyster meters to restrain these two new members of their body from working except upon the same terms as all the rest, and from disregarding the by-laws and regulations of the body of deputy day oyster meters. Vice- Chancellor Sir G. J. Turner held, first, that it was necessary for the plaintiffs to make out the immemorial existence of the body of which they formed part, otherwise they would have stood in no better position than deputies appointed by persons who were themselves deputies ; and that a body of the description answered by the deputy oyster meters, although describing themselves as servants of the corporation, may have the power of making by-laws to regulate the rights and duties of its members ; and whether they are to be deemed to have the power or not depends upon usage, in the absence of express pro- 726 MUNICIPAL CORPORATIONS. Part I. vision that the corporation, although it had sole power to appoint Chapter V Sect. 1. td the office of deputy day oyster meters, had no power to appoint to the office on terms differing from the general regulations of the body ; and, semble, that there is no case where the Court has charged a person for wilful default in not having received that which he had no legal right to recover ; and, per Vice-Chancellor Sir W. P. Wood, that a payment which cannot be legally demanded, and which is even in itself improper, may yet be so legalised by custom as that one of several interested parties is not justified in refusing it when preferred (1). The borough 12. The borough fund is a trust fund, and is so constituted by fund and a the Municipal Corporations Act (5 & 6 Will. 4, c. 76) (2) ; and corporation ^^^ 192nd section of this statute enables the surplus of the borough was restrained ^ ° applying the fund to be applied for the public benefit of the inhabitants and fund (which . „ i , n -r , • i . i had been improvement 01 the borough, in this case, by an Act subsequently other funds) Passed, the corporation of the city of N. vrere authorized to levy m paying certain tonnage dues, to be applied in a specified manner, and, expenses of an . application for after they were satisfied, the remainder to be applied to certain an Act for im- „ , . , , , i • i i proving a purposes, some 01 whicn were the same as those to which the ^^^^' surplus of the borough fund was made applicable; and distinct accounts were directed to be kept of the tonnage dues and borough fund, but the treasurer mixed the two funds at his bankers ; and the corporation proposed to obtain an Act of Parliament for im- proving a river flowing through the city, and applied money from the funds at the bankers in paying certain expenses ; and an in- formation was filed by the Attorney-General, at the relation of the ratepayers, praying an injunction to restrain this application to Parliament at the expense of the borough fund, and the same was granted ; and, on appeal from that decision, the appeal motion was refused with costs (3). 13. Where a corporation, having, under an Act of Parliament, a right to take land for the purpose of certain public works, had given notice to the owner of the inheritance of an intention to take it, and they then entered regularly upon the land for the purpose (1) Thompson v. Daniel, 17 Jur. (Ch.) 139; et v. Att.-Gen. -v. Corpom- 773,; 22 L. J. (Ch.) 507. timi of Lichfield, 11 Beav. 120, post, (2) Att.-Oen.v. Corporation of Nor- p. 728, pi. 15. wich, 16 Sim. 275 ; 21 L. J. (N.S.) (3) lb. MUNICIPAL C0EP0EATI0N8. 727 of surveys, &c., and afterwards their contractors, without the Past i. knowledge of the corporation, but with the assent of the occupying gtra\'i.'^' tenants, brought some waggons and rails and other implements on the lands, and there left them, but did not commence the works or do any damage ; and this was done without obtaining the assent of the plaintiff, but it became known to his agent in the end of December j and in the beginning of the following February, with- out any previous communication with the defendants, he filed his bill for an injunction to restrain them from allowing the waggons, &o., to remain on the land, and from taking possession of the land until they had complied with the provisions of the Lands Clauses Consolidation Act ; Vice-Chancellor Sir E. T. Kindersley held, that though the corporation were bound by the acts of their contractors, the acts done were not a taking possession within the meaning of the Act ; that the corporation had not authorized any taking pos- session of the land, and that the contractors had obtained the permission of the tenants to leave the things in question on the land, and that it was not a case for filing a bill at all, and a motion for an injunction was refused with costs (1). 14. Where a corporation was empowered by special Acts, which embodied the Lands Clauses Consolidation Act, to construct water- works, and to take certain lands belonging to A. and B., the boundary between which was improperly described in their plans and books of reference ; and in consideration of B.'s withdrawing his opposi- tion to their bill in committee, they agreed to settle the value of the land required from, and the compensation due to him, by arbi- tration under the above Act, and to fix the exact quantity of land within six months after the passing of the bill ; and in the pro- ceedings under the reference to arbitration the mistake of the boundary was pointed out ; but the award fixed a value, in terms only, for the land within the boundary so inaccurately delineated, and the corporation took that land accordingly, leaving between it and the true boundary line a narrow strip of land belonging to B., but which the corporation had agreed to purchase from A. as part of his land, and for which they paid a sum of money to A., and of which they took possession as part of the land purchased from A. ; and B. recovered the strip of land afterwards from the corporation (1) Standish v. Mayor of Liverpool, 1 Drew. 1. 728 MUNICIPAL CORPOBATIONS. Part I. in ejectment, and a rule for a new trial was refused ; and the corpo- Seot. 1. ration thereupon proceeded, within six months after such refusal, to make themselves legal owners of the strip of land in question, under the compulsory powers given in case of mistake by the 124th section of the Lands Clauses Act, 1845 ; and B. then filed a bill for Sect. 124 of an injunction to restrain them from so doing. Upon motion, the Clauses Act, injunction was refused with costs, the Court holding that the cir- to lanSt(> cumstances amounted to mistake within the meaning of the said gether omitted 124th section, and that that section applied to land altogether chased by omitted to be purchased by mistake, as well as to an outstanding TTi"i ^TflJK p ^ interest therein so omitted to be purchased (1). It is the duty l^- Upon a true construction of the Municipal Corporations mrpOTationlo ^^^> ^ * ^ ^^^^- ^> ^- '^^' ^^ ^^ ^^^ "^^^^ ^^ ^ municipal corporation provide as far to provide, 38 far as it is practicable, for the expenses of each year as practicable « i • tor the ex- out of the mcome of that year, and it ought not to contract debts penses out of - i • j ■ i? j. j} j_-i e • j ■ • j_i the iacome of "'^ "^ P^^*^ i''^ luture yearSj lor the purpose ot avoiding, in the cur- the year. j,gjjt year, to provide for the expenses then incurred ; but this rule will not be so strictly applied as to prevent, under all circum- stances, the payment of a prior debt out of the moneys raised by a subsequent rate. And where an information was filed, stating that a municipal corporation having considerable corporate pro- perty, but having incurred debts which their income was not sufficient to discharge, were endeavouring to raise money for the payment of their debts by means of a rate, and an application was made for an injunction to restrain the corporation and its officers from the application by them of the money already collected by a borough-rate for costs, debts, or expenses incurred prior to the making of the rate ; and from taking any steps to enforce payment of sums not yet received under the rate, and from making any new or additional rate for the purposes of paying thereout any expenses incurred prior to the making of the rate, the Court, under the This Court has circumstances, refused the injunction (2). But the borough fund comSt«ties created under the Municipal Corporations Act (5 & 6 WiU. 4, c. 76) to account for jg ^ ^j-^gt {yycvA, and this Court has authority and iurisdiction to sums received _ _ j j as the borough compel the parties who receive and apply the fund to account for fund. {V) Hyde v. Corporation of Man- feld, 11 Beav. 120; 17 L. J. (K.S.) Chester, 16 Jur. 180. (Ch.) 472; v. Att.-Gen. v. Daniell, 9 (2) Att.-Gen. v. Oorporation o/Lich- L J. (N.S.) (Gh.) 394, ^-osf. MUNICIPAL COKPOEATIONS. 729 the sums they receive, and the application of them (1). However Pabt i. it is not clear that the Act ought to be so strictly construed as to ^^eo™. ' lead to the conclusion that an expense not included in a prior esti- mate, and so incurred as to constitute what may be justly called a debt, before a subsequent estimate or rate is made, can in no case whatever be lawfully provided for by such subsequent estimate or rate. But in a case requiring its exercise, the Court may have jurisdiction to restrain the corporation from making any new or additional borough rate for the purpose of paying thereout any expenses incurred previously to making the same ; and the Court The Couithas has jurisdiction, if it be expedient, and the case should require it, restrain appli- to restrain the application of money collected by rates, for costs, ^*ji° y col- debts, and expenses incurred prior to making the rate (2). And in leoted by rates Attorney-General v. Mayor, &e., of Liverpool (3) the Court held, that incurred prior it had authority under its general jurisdiction to interfere for the rat™* protection of property vested in the corporation of a borough named in the 6 Will. 4, c. 76, on the ground of a breach of trust committed or threatened after passing of that Act, although the time when the existing members of the governing body corporate of such borough were to go out of office may not have arrived. And in Parr v. Attorney-General (4) it was held, that the Court of Chancery has jurisdiction to prevent the town council of a borough from abusing the power given to them by the Act 5 & 6 Will. 4, c. 76, of awarding compensation for the enrolments of offices, and that no difference in this respect is made by the circumstance that the compensation is about to be raised by means of a rate. But a But should Court of Equity ought not to interfere in the ordinary manage- i'n*the*ordT-'^ ment of the borough fund (5). And in Attorney-General v. Birming- '^H^'lfly^^' ham Gor;poration (6) a demurrer was allowed by Vice-Chancellor borough fund. Sir W. P. Wood to an information, at the relation of the guardians of the poor of the parish of Birmingham and two ratepayers of the (1) Att.-Gen. v. Corporation ofUch- (3) 1 My. & Or. 171. field, 11 Beav. 120 ; et v. Att.-Gen. v. (4) 8 01. & P. 409 ; affirming Att.- Corporation o/Nonuich, 21 L. J. (N. S.) Gen. v. Corporation of Poole, 4 My. & (Oh.) 139 ; ante, p. 726, pi. 12 ; Att.- Or. 17, which reversed S. 0., 2 Keen, Gm. V. Aspinall, 2 My. & Or. 613 ; 190. reversing 1 Keen, 513. (5) Att.-Gen. v. Corporation o/Nor- /2) lb. wich, 1 Keen, 700; 2 My. & Or. 406. (6) L. E. 3 Eq. 552. 730 MUNICIPAL COEPOBATIONS. Part I. borough, against the mayor, aldermen, &c., of the borough, and Sect. 1. ' the town clerk, praying for a declaration that, according to the true intent and meaning of the Birmingham Improvement Acts, a sum of £2700, agreed by the council of the borough to be paid for the purchase of eighty-five square yards of land in Bull Street, Birmingham, for the improvement of the street, was payable out of and chargeable upon the street improvement rate, and not out of the borough rate or borough funds ; and that the said sum could not lawfully be raised upon the security of a mortgage of the borough rate or the borough funds, and for an injunction accord- ingly. In this case the corporation of Birmingham, having con- tracted for the purchase of land for the widening of a street (not comprised in the works specified in the local Acts of 1851 and 1861), and having (after due notice given, and after all parties interested in the scheme had been heard before a Commissioner de- puted by the Treasury), obtained the sanction of ^he Treasury to the purchase of the land, and the charging of the borough fund with the purchase-money ; the Vice-Chancellor held, upon the construc- tion of the statutes, that the corporation were lawfully empowered to raise the purchase-money out of the borough fund. 16. A judgment obtained by confession against an old corpora- tion, subsequently to the 16th of February, 1836, is not conclusive against the new corporation ; and in a case where the Court was doubtful' whether the demand upon which the judgment was obtained was within the terms of the 6 & 7 WiU. 4, c. 100, it was held, upon an information filed by two of the burgesses of the new corporation, to stay the issuing of execution against the goods of the corporation upon that judgment, that they were entitled to have an issue to try whether or not it was originally such a demand as came within the provisions of that Act (1). Equity will 17. Where a corporation have the power of doing or not doing wHlTthe exer- ^.n act at their discretion. Equity will not interfere with the law- tionary^ower^'^ exercise of the discretion, however injurious its consequences, by a corpora- unless it infer fraud (2). But an injunction will issue to restrain tion unless • „ i • • fraud. a city trom takmg private property without legal right (3). So, (1) Att.-Oen. V. Corporation of (2) Semnies v. Columbus, 19 Geo. Dublin, 1 D. & War. 545. 471 (Amr.) (3) Lumsdeii v. Milwaukee, 8 Wis. 485 (Amr.) MUNICIPAL OOEPORATIONS. 73 1 if the power of taxation in a municipal corporation is so limited as Part I. not to be adequate to pay, within any reasonable time, the ^^sS^J' damages caused by the opening of a public street, a Court of" Equity will prohibit such opening by injunction, until security for payment be giVen (1). An injunction to restrain an appropriation Misappiopria- of public property to private purposes will not be dissolved upon J^^ertytm the coming in of the answer, admitting the acts charged, but ^ restrained. denying that the public interest will be thereby prejudiced (2). Where the city of New London (U. S.) appropriated money Misappropria- for the celebration of the anniversary of independence, a bill *„ °df of'a'city was sustained on behalf of certain taxpayers to restrain the Bay- corporation , „ , . -^ •' ^ •' will be re- ment 01 such appropriation ; the Court remarked : " The city strained. corporation was in the nature of a trustee of the money in its treasury for the corporators, the inhabitants of the city, for the purposes for which they were incorporated, and here was a medi- tated misappropriation of the trust fund; and, secondly, it is extremely doubtful whether the plaintiffs could have any other remedy. The amount appropriated by this vote was in the city treasury, and, if abstracted, must, when wanted for other and legitimate purposes, be supplied by a tax on the inhabitants ; it is suggested that the plaintiffs should bring an action against the city for a misappropriation of its funds, or that, when such a tax is laid, they should by a proper action, resist its collection. We are by no means prepared to say that an action could be maintained on either of these grounds, and are strongly inclined to think it could not; but however this may be, we are clearly of opinion that the plaintiffs are not bound to wait until the money is mis- spent, nor until such tax shall be levied and attempted to be collected, but that they may call on a Court of Equity to interpose by way of preventing the injury " (3). 18. Where an injunction issues against a city and all its mem- bers, officers, and agents, restraining them from making a certain grant, a member of the city council, who votes for the grant, violates the injunction, though the resolve, in favour of the grant, is conditioned on the grantee's acceptance of its terms (4). (1) Keene v. Bristol, 26 Perns. 46 (3) New London v. Bramard, 22 (Amr.) Conn. 552-6 (Amr.) (2) Att., &c, V. Gohoes Co. 6 Paige, (4) People v. Sturtevant, 5 Seld. 133 (Amr.) 263. ( 732 ) Part I. Sect. 2. Corjoorations Aggregate. Chapter V. 1. Under the Medical Act, 1858 (21 & 22 Vict. c. 90), and prior The College of ,-r, ^ . . , ,. Physicians Statutes, the Eoyal College of Physicians has power to grant granuToCTises licenses without restricting its licentiates from compounding and without re- supplying for gain the medicines which the licentiates prescribe, stnotions as to ■'^•'^ •' ° *= ... compounding and for such licentiates so to compound and supply medicines is medicines. uot an invasion of the privileges of the Apothecaries Company, ' But if such practice by licentiates of the college were an invasion of the privileges of the Apothecaries Company, the proper remedy would be by proceedings at Law against the offender, and not by information and bill in Equity against the college ; and on an information and bill by the Attorney-General and Apothecaries Company to restrain the College of Physicians from granting There is such licenses, a demurrer for want of equity was allowed (1) ; and nothing to pre- i . . i ti • ■ • j< i_- vent a phy- the rule that a physician shall not maintain an action tor his a speciafccm? charges is founded on the general custom of the profession not to tract for his charge, but there is nothing to prevent him from making a special contract that he shall be paid for his services, and recovering under the contract (2). 2. The powers conferred on the Metropolitan Board of Works by sect. 135 of the Metropolitan Local Management Act (18 & 19 Vict. c. 120) are not controlled by the 150-158rd sections, and the board is empowered under the former section to make such sewers as they shall think fit, on compensating the owners of pro- perty for the damage occasioned thereby, without being required under the latter sections (which give them an option if they deem it necessary) to buy the land under which they carry their works, or easements therein, from the owner (3). And in North London Railway Company v. Metropolitan Board of Works, Winter v. Same (4), Vice-Chancellor Sir W. P. Wood, held, that under the Local Management Act, 1855, 18 & 19 Vict. c. 120, the Metro- politan Board may execute any works comprised within the terms of sect. 135, making compensation for damages, without purchasing (1) Att.-Oen. V. Eoyal College of (3) Hughes v. Metropolitan Board Physicians, IJ. & H. 561 ; 30 L. J. of Worhs, 7 Jur. (N. S.) 986 ; 9 W. E. (Oh.) 757. 517. i'i) lb. (4) 1 Joh. 405. CORPOEATIONS AGGEBGATB. 733 the lands or any easement in them, under the provisions of sects. Pabt I. 150, 151, 152, and 153, and of the Lands Clauses Act, 8 Vict. c. 18, ^t^^^' notwithstanding that the works may be of such a character as to involve an actual taking of land, and may be within the powers of sects. 150 and 153; and the 150th, 151st, and 152nd sections, enabling them to purchase any lands, or any right or easement in or over any land, which they may deem necessary or expedient for the formation or protection of their works, are not to be read as restricting such exercise of those powers. 3. Where there is a doubt whether the arbitrary powers given to where tiiere local boards are properly exercised, it is the duty of the Court to ^hetw'the take care that the checks appointed by the Legislature have due ai^bitiary ■^ ° powers given operation in favour of the persons affected; and the Court to a local restrained a local board of works which had exceeded their statu- periy exer- tory powers, and had attempted to exercise arbitrary powers with- qI^I ^u ggg out leaving to a person affected thereby the right of appeal given that the checks by the Act, from so doing until the question should be determined the Legisla- by the proper tribunal (1). And the Court held, that the 211th operation, section of the Metropolitan Local Management Act, giving an appeal from the order of the district board to the Metropolitan Board of Works would not be considered as imperative, or as superseding the enactments in the Nuisances Prevention Act which give jurisdiction to the justices of peace in cases where a nuisance is ascertained to exist by the local authorities ; and in this case the Court held that a metropolitan district board of works has not authority under the Metropolitan Local Manage- ment Act, 1855 (18 & IQYict. c. 120) and the Nuisances Eemoval and Diseases Prevention Act, 1855, to lay down any general or arbitrary rule requiring owners or occupiers of houses situate within its district to convert privies into water-closets; and a district board of works, in exercising the jurisdiction with which it is invested under that Act, must have regard to the circumstances of each particular case. And where a district board of works, acting under 18 & 19 Vict. c. 120, had made an ex^arte order on the plaintiff to turn into water-closets the privies attached to cottages belonging to him, and on his failing to do so they pro- (1) TinMer v. Wandsworth District & J. 261 ; 3 Jur. (N. S.) 1292 ; 4 Jur. Board of Works, 1 Giff. 412 ; 2 De G. (N. S.) 293. 734 COEPOEATIONS AGGBEGATE. Paht I. ceeded to enter upon the premises for the purpose of doing it Chapter V. , , ,,, ■,, ,i ^ ■j.v. Sect. 2. themselves, and the order appeared to have been made, not with regard to the state of this particular property, but in consequence of a previous determination to substitute water-closets for privies throughout the district ; the Court held, that the board was ex- ceeding its statutory powers, and ought to be restrained from entering on the plaintiff's property for the purpose of making the alteration; and, assuming that the Act authorizes a board to require such an alteration as the above in particular cases, still the board is bound to exercise its discretion in each particular case, and is acting ultra vires if without exercising such discretion it proceeds to make the alteration in pursuance of a determination to require it to be made in all cases : per Lord Justice Turner (1). 4. Where the plaintiff, being owner of land in a parish, and wishing to build thereon, had, from a misapprehension of his duties under the Metropolitan Local Management Act (18 & 19 Vict. c. 120), constructed a sewer in the main sewer at his own expense, and afterwards, wishing to build another street in a parallel direction to the former, had written to the vestry, asking how they required the proposed new houses to be drained, and the vestry requii'ed him to continue the former sewer ; to which he had replied, that under the Act it was not incumbent on him to construct the sewer, but only to make drains from the houses into the sewer; and the vestry, however, gave biTn notice to discontinue the erection of the houses, adding, that they had power to cause the same to be demolished ; upon a bill filed to restrain the vestry from demolishing, destroying, altering, or injuring the houses, or interfering with, or preventing the completion of them, Vice- Chancellor Sir J. Stuart granted an interim order for an injunc- tion, which, on motion by consent for a decree, was made perpetual, and the costs of the suit were ordered to be paid by the vestry (2). 5. Upon a bill by the owners of certain lands against a local board of health to restrain the defendants from constructing any sewer beyond their district, and through lands belonging to the plaintiff; Vice-Chancellor Sir R. T. Kindersley held, that the (1) Tinkler v. Wandsworth District (N. S.) 293. Board of Works, 1 Giff. 412 ; 2 De G. (2) Clarke v. Paddington Vestry, & J. 261 ; 3 Jur. (N. S.) 1292 ; 4 Jur. 5 Jur. (N. S.) 138. COEPOEATIONS AGGREGATE. 735 powers of local boards, under the Public Health. Act, 11 & 12 Vict. Pabt i. c. 63, s. 43, for the construction of sewers are confined to their seot. 2. own district, and that the Local Government Act, 21 & 22 Vict. c. 98, extends the exercise of those powers beyond the district only where it may be necessary for the purpose of outfall or distribution of sewage, and not merely for convenience, or for the purpose of making new sewers, and granted the injunction (1). But a local board of health has no power, under the Public Health Act, 11 & 12 Vict. c. 63, to enter upon land without the consent of the owner for the purpose of making reservoirs and deposit beds for retaining the sewage ; and Vice-ChanceUor Sir E. T. Kindersley granted an injunction to restrain such a proceeding (2). And public works Public works ordered by Act of Parliament must be so executed as not to Act must be so interfere with the private rights of individuals ; and in deciding on not to interfere the right of a single proprietor to an injunction to restrain such with private interference the circumstance that a vast population will be injured In deciding {e.g., by remaining undrained) unless his rights are invaded, is one a single pro- which the Court cannot take into consideration (3). And where fnj^unetion''" the council of a borough was bound by a local Act of Parliament, injury to a ° •' _ vast popula- incorporating the Towns Improvement Clauses Act (10 & 11 Vict, tion unless c. 34), effectually to drain the town ; Vice-ChanceUor Sir W. P. invaded, can- Wood held, that they were not justified in so carrying on their gi^ered™'^' operations for this purpose as to drive away fish, and prevent Drainage of . 1 . n , c ■ •! town, so as to cattle from drmkmg of the water of a river at a part seven miles drive away below the town, and where it belonged to the plaintiff; and that, vLt^cattie*^' assuming the inhabitants of the borough to have had before their drmkmg o ... (here) Act a right to drain their houses into a river, that circumstance restrained. would not authorize the council discharging the sewage in such manner as to subject the plaintiff to the inconvenience of which he now complained ; and although the plaintiff had submitted to No laches (^liGrG^ by the injury for nearly four years, trusting to the assurance of the submitting council that they were carrying out a scheme of sewage by which ye^rs ta^usting eventually the evil would be removed, the Court held that he was to an assur- not precluded on the ground of laches from applying for an would be injunction, the rule in such cases being that the mere prospect of ^^"^ (1) Eayward v. Lowndes, 28 L. J. (2) Sutton v. Norwich (Mayor, &c.), (Ch.) 400 ; 4 Drew. 454. 27 L. J. (Ch.) 739. (3) Att.-Qen. v. Birmingham {Borough Council), 4 K. & J. 528. 736 CORPOEATIONS AGGEEGATE. Part I. The rule in injury does not gire a right to this relief (1). A local Sect. 2. ' that themere board of health is not justified in polluting the sur- prospect of f^^^ water which flows by an open gutter into a canal injury gives no •' r o right to relief, by diverting it into a sewer, and passing the sewage into it (2). But where a canal company had a statutory power to supply their canal with water out of such brooks, streams, and watercourses as should be found within a certain distance ; the Master of the Eolls, Sir J. Eomilly, held, that it would be difficult to hold that the mere surface water of a road, not arising from any spring or natural certain supply, could fall within the Act so far and to such an extent as to exclude a local board of health from making a system of drainage essential to the district which, offending against the rights of no one in any other particular, merely allowed to flow through, from rain, and from the overflowing of the surplus of the neighbouring houses, water which had theretofore flowed down an open gutter into a canal ; but the Court granted an injunction to restrain the board from opening communications between the side sewers, which drained the neighbouring houses, and the main sewer, so long as the main sewer ran into and polluted the canal, without first obtaining the consent of the company (3). But where the Metro- politan Board of Works had constructed a sewer on the high road, and the Lewisham district board had made a branch sewer running into it, and the combined effect of the two was to drain an orna- mental pond and rivulet on the adjoining lands of the plaintiff; the Master of the Eolls, Sir J. Eomilly, held, that neither of the boards was, in respect to the diversion of the water, to be treated as clothed with the rights or obligations of adjoining landowners, and that they had not exceeded their statutory right so as to be liable to be restrained by injunction; but that if either of the boards was producing injury to the plaintiff by the unskilful or improper construction of the sewer, the Court would interfere to prevent it, however that such not being the case, this Court would not restrain the defendants in the execution of the works, or compel them to make the sewer water-tight, or to do any act to (1) Att.-Oen. V. Birminyham colmhire Sa^w. Co. v. Worksop {Borough Council), 4 K. & J. 528. (Board of Health) 23 Beav. 198 ; 3 Jur. (2) Manchester, Sheffield, mid Lin- (N. S.) 304. (3) lb. CORPOEATIONS AGGEEGATE. 737 restore the ancient flow of water, and the plaintiff was without Pabt i. CJh AFTER "V any rights in Equity, and his rights were limited to a claim for seot. 2. compensation for the damage done under the 11 & 12 Vict. c. 112, s. 50 (Metropolis Sewers), and the 18 & 19 Vict. c. 120, s. 86 (the Metropolitan Management Act) (1) ; but, semble, it would have been otherwise if, without impairing the efficiency of the drainage, and at a slight expense, the sewer could have been so constructed as not to interfere with the stream. The Master of the Eolls said that if he were satisfied on the evidence that the drain was not properly constructed, or even that by a very slight expense as good a system of drainage might be sustained and kept up by the defendants consistently with preserving to the plaintiffs the ac- customed flow of their rivulet, he should not hesitate to enforce that mode of construction. But though the owner of land is by law entitled to deal with it in every possible manner he pleases, provided he does not thereby injure another person, if, in so dealing with his own land, he injures another, and commits a nuisance on the adjoining property, this Court will interfere, and prevent his exercising the right which he is, prima facie, by law entitled to, and from dealing with his own property to the injury of the property of his neighbour; yet in such cases the burden of proof lies on the owner of adjoining land to esta- blish, to the satisfaction of the Court, the injury inflicted by the person in so dealing with his own land. However, persons Persons inter- interfering with the property of individuals by virtue of an Act propfr^'of of Parliament are strictly tied down to the limits of the powers iifdi'iduals by ■' ■• virtue of an given by the Act, and they are bound to shew clearly and distinctly Act are that they are empowered by the Act to do what they propose to down to the do. And where, under the 45th, 46th, and 145th sections of the po'^'ers^fven Public Health Act, 1848 (11 & 12 Vict. c. 63), providing that the tliem. local boards may make necessary sewers through or under any lands whatever, and cause them to be emptied into such places as may be fit and necessary, provided that nothing in the Act shall authorize the boards to use, injure, or interfere with any water- course, stream, river, &c., in which the owner of any lands may be interested without the consent of such owner ; the Lords Justices held, that persons having a right to watering-places in a river (1) Stainton v. Woolrych, 23 Beav. 225 ; 3 Jur. (N, S.) 257 ; 20 L. J. (Oh.) 300. 3 B 738 OOEPOEATIONS AGGEEGATE. Part I. adjoining lands for the use of their cattle, but not being owners of Sect. 2. the water or of the bed of the river, are interested in the river within the meaning of the proviso, but would not be able to main- tain an action for an interference with their rights unless they were injured by such interference, and that works of a local board of health producing an outfall of the sewage of a town above such a watering-place was such an interference as to cause injury to the A public body landowners ; but, affirming the decision of the Master of the Eolls, powers will be Sir J. EomiUy, that, whether this was established or not, it res aine . ought (if not consented to by them) to be restrained by injunction, being the act of a public body exceeding its powers (1). And f&r Cresswell and Williams, JJ. {dvhitante Turner, L J.), that a right of fishing is within the term " land," according to the interpretation clause of the Public Health Act (2). And where a local board constituted under the PubKc Health Act (11 & 12 Vict. c. 63) had carried the whole drainage of the town into an adjacent river, a small stream which, immediately below the town, followed for three miles through the plaintiff's land on both sides ; and the plaintiff was also seised of a mill upon the stream ; and the quantity of sewage matter thrown into the stream was greatly increased, the population of the town having increased nearly one-hal^ and the extent of sewers from 250 yards in 1848 to 10,500 yards in 1855 ; and besides other evidence of that it appeared that sheep could no longer be washed there, that the fish were all dead, and that the exhalations were noisome ; and the plaintiff had been in correspondence with the board on the subject of remedying the nuisance until the 19th of September, 1855, which was the date of the last communication in which they held out hopes of doing so ; and the bill and information were filed on the 15th of January, 1856 ; Vice-Chancellor Sir W. P. Wood held, that the practice long previous and up to 1848 of a few houses in the town to drain into the river aiforded no ground for the local board setting up a prescriptive right ; and that the local board, as a modern corpora- tion, could claim no prescriptive rights ; that the stream was a private stream, the property of the plaintiff, and therefore that he had private ground of complaint to support the bill, as well as the public nuisance on which to found the information ; and that the (1) Oldaher v. Hunt, 19 Beav. 485 ; 6 De G. M. fr G. 376. (2) lb. COEPOEATIONS AGGEEGATE. 739 / board had no rights, except with his consent, under sect. 145 ; and Part I. that there was no such laches on the part of the plaintiff as to sect™. ' prevent him from having relief on the interlocutory application (1). 6. Where the defendants, the vestry of St. Mary, Lambeth, in exercise of the powers given by sect. 76 of the 18 & 19 Vict. c. 120 (the Metropolitan Management Act), had served the plaintiff with a notice requiring him in the construction of the drainage to certain houses, which were being erected by him in their district, to use stoneware pipes of the best quality, and the plaintiff used pipes of the Aylesford manufacture as coming within the description of stoneware mentioned in the notice to him; but the vestry, who required pipes of Lambeth manufacture, or of manufacture similar to that of Lambeth, to be used, objected, and refused, unless their requisitions were complied with, to make an opening into the main sewer for the plaintiff's drainage ; and the plaintiff thereupon made the opening himself, and completed his drainage by means of Aylesford pipes ; on a bill for an injunction to restrain the vestry from entering upon the plaintiff's premises for the purpose of taking up the drainage works so constructed by him, Vice- Chancellor Sir J. Stuart held, that the Act gave the vestry the right to determine which of the two materials should be used, and it appearing that the evidence of scientific men as to the compara- tive merits of the two manufactures was conflicting, the Court thinking, on the whole, that the vestry had not used a capricious discretion, and that the plaintiff had not complied with the regula- tion of the vestry, refused to grant an injunction, and dismissed the bill with costs (2). 7. A private Act of Parliament does not repeal a former private A private Act Act by implication, and therefore where a private Act of Parlia- a°former ment gave power to commissioners to construct a sea-wall, the f^^^g^^g* ^^ property in which was to be vested in them, with liberty to pro- prietors of adjoining lands to purchase portions of the wall, and to make openings in it, under the superintendence of the engiaeer of the commissioners ; the Lords Justices held, that under a subse- quent Act empowering a dock company to take some adjoining (1) Att.-aen. V. Luton Local Board ( Festrtj), 4 Jur. (N. S.) 274, 1032 ; 27 of Health, 2 Jur. (N. S.) 180. L. J. (Oh.) 677. (2) Austin v. Sf. Mary, Lambeth 3 B 2 740 COEPOEATIONS AGGREGATE. Part I. lands, and to make such works for the purposes of their under- Sect. 2. taking " as they might deem expedient," the power thus conferred was subject to the provisions of the former Act (1). Guardians of 8. In Attorney-Qeneral v. The Guardicms of the Poor of South- (herTpayin? «»»i"5o« (2) the guardians of the poor of Southampton were out of poor- restrained from paying out of the poor-rates the expenses incurred rates expenses ljo i ,.. V>t of ail unsuc- by them in makiug an unsuccessful application to Parliament lor cation to an -^ct to authorize them to rate the owners instead of the occu- Parhament. pjers of small tenements, on the ground that from the facts of the case it was sufiSciently manifest that what was intended to have been done by means of the application of the guardians to Par- liament was unfair and inequitable. And where an Act of Parliament authorizing the execution of certain works for a public purpose, directed the rates to be levied thereunder to be applied by the commissioners to certain purposes enumerated, "and in repairing, extending, and enlarging the said works, and erecting new works, and in otherwise carrying this Act into execution," the Court, granting an injunction, held, that the commissioners had no power to apply the rates in payment of the expenses of pro- moting a bill in Parliament for extending and amending the former Act (3). 9. In Armistead v. Durham (4) the Court, upon a bUl alleging overcharges, and the raising moneys by mortgages instead of rates, and excess in amounts in the proposed award, made an order for an injunction until further order to restrain commissioners under a local drainage Act from signing their final award, and from proceeding to enforce payment of rates, although the Act gave jurisdiction to the quarter sessions, on the ground that the circum- stances disclosed were such as to induce the Court to say the defendants ought not to proceed until the questions in the case had been considered in a better state of facts, and in a more formal manner than they could be on the occasion of the motion, and this order was affirmed on appeal; but Lord Chancellor Cottenham attached to it the condition of bringing the monev (1) Birkenhead Docks (Trustees of) (3) Att.-Qen. v. Andrews, 1 Mac. .t V. Laird, 4 De G. M. & G. 732. G. 225 ; 2 H. & T. 431. (2) 17 Sim. 6 ; 18 L. J. (Ch.) 393 ; (4) 11 Beav. 500. 13 .Tnr. 669. COEPOEATIONS AGGEEaATE. 741 into Court, And where commissioners of sewers, under an Act of Part I. Parliament, are proceeding to paye and make sewers to the injury gEoi! 2. of property in a case not within the Act, this Court, unless ex- pressly excluded, has jurisdiction to interfere ; although by the Act jurisdiction is given to the justices at sessions, where judgment is not to be removed by a certiorari, or otherwise, into any of Her Majesty's Courts of Record at Westminster, or elsewhere (1). But in Kerrison v. Siparrow (2) the Court dissolved an injunction which had been obtained against the act of commissioners of sewers reducing the height of water in a river, on the ground that there was a much shorter remedy by certiorari in the Court of E.ing's Bench, declaring that the Court of King's Bench interfered with great caution; but the Lord Chancellor, Lord Eldon, said that his decision was given without entering into the question whether there might, or might not, be cases in which a Court of Equity would not interfere. 10. Where an incorporated society took an interest in the pro- prietary shares, the Court held that such interest could not be taken away without the consent of the whole body ; and that a majority of the members for surrendering the charter, and chang- ing the nature of the institution, did not bind the minority ; nor could the common seal be used for a purpose so directly opposed to the objects for which it was granted ; and an injunction to re- strain the applying it to the proposed deed of surrender, and against any alienation of the property, was granted, until the hearing (3).- 11. In Glass V. Marshall (4), upon a bill by the father as admi- Court re- ... , ^ , -ii- i strained East nistrator of his deceased wife, agamst his daughter, who, without i^dia Com- any legal right, had taken possession of certain East India bonds PfgYej?^'''"^ which had belonged to her deceased mother, to restrain her from ^'^''^"^'g^'j;^^^ parting with the bonds, and against the East India Company to person who restrain them from paying the moneys secured by the bonds to Miy obtained the defendant, the daughter; Vice-Chancellor Sir L. Shadwell P°^^^^='°°' held, that the Court of Chancery had jurisdiction to restrain the East India Company from paying the money secured by thei (1) Birley v. Constables of Chorley- ' (3) Ward v. Attorneys' Society, 1 upon-MecUock, 3 Beav. 499. Coll. 370. (2) 19 Ves. 449. (4) 15 Sim. 71. 742 C0EP0BA.T10NS AGGEBGATE. Part I. boiids to a person who wrongfully obtained possession of them, or Sect. 2. to any other person than the lawful owner of them, and refused to dissolve an injunction restraining the East India Company from so paying the money secured by their bonds to the daughter, the wrongful holder of the bonds. 12. The Court, inBeeve v. Parkins (1), upon a bill for a dissolu- tion, granted an injunction to restrain payments by the defendants, the committee and trustees of a friendly society, founded on erro- neous principles, tending to exhaust its funds. 13. In Salmon v. Randall (2) it was held that the Commissioners appointed under the local Acts of Parliament for improving the town of Cambridge had, upon the true construction of those Acts, a continuing right to exercise from time to time the power thereby vested in them of taking property for the purposes of the Acts ; and of referring the assessment of the price to a jury, so long as might be required for carrying into full effect the purposes con- templated by the Acts; and that a person whose property was required by the Commissioners for the purposes of the Acts was not entitled to restrain them by injunction for taking the steps pre- scribed by the Acts for obtaining possession of the property, until they should have shewn a sufBcient fund to satisfy the price which might be awarded to him, or until they should hare shewn the means by which they proposed to incur it. 14. Where a brewer and coal dealer on the banks of a fleet or tidal creek carried on trade by means of barges, &c., and the Commissioners under the Towns Improvement Act of 1847, and other special Acts, arched over portions so as to prevent the use of the creek for navigable purposes, and he claimed compensation, but subsequently protested against the act as illegal, and filed a bill to restrain the interference and for a mandatory injunction ; Yice- Chancellor Sir K. T. Kindersley held, that the Legislature by the Acts in question drew a distinction between sewers and drains and fleets, the sewers and drains only being vested in the Commissioners ; A claim for and that, therefore, he was entitled to an inquiry as to damages, with is no acquies- a direction to pay the same, when ascertained, to him, and that his tl™re kYgnor- °^^^^^ ^°^' Compensation was no acquiescence, because he was then rje^fciUh io^o^^'it t^f^t ^^'^J w®^'® ky, 8 Do G. M. & 762 ECCLESIASTICAL MATTEES-BUEIAL GROUNDS, &o. Part I. the pastor, had dismissed the pastor ; the Master of the Eolls, Sir Chapter VI. t tV -,. . , 7 . ,. j i x- J. itomuJy, upon a suit by the pastor praying lor a declaration that he had not been lawfully dismissed from his oiHce of pastor, and that the defendant the Reverend M. had not been duly ap- pointed pastor ; and for an injunction to restrain the defendants from preventing the plaintiff from discharging his duties as pastor ; held, that the Court, notwithstanding the rights of the Crown as visitor, had jurisdiction to see to the performance of the trust and to determine on the validity of the dismissal ; and the Court having come to the conclusion that it was not justifiable and was void, the governing body having no power to dismiss him without alleging a sufficient cause, and having failed to shew that he had violated the discipline of the church, granted an injunction to restrain the governing body from hindering the pastor in the exer- cise of his office (1) ; and the Court held, that as the funds of the church had been created wholly apart from the charter of incorpo- ration, and were under the control of the elders and deacons for the support of the minister and other church purposes, and for the relief of the poor, a trust for the plaintiff, the pastor, was con- stituted, which gave the Court of Chancery jurisdiction ; and that although the Crown was the visitor of the corporation, the visita- torial power only related to corporate matters, and did not exclude the right of the Court to inquire whether the deacons and elders had properly discharged their trust towards the plaintiff; and, finally, that the corporation having become divided into two churches, and there being no public officer at the head of the cor- poration, and such corporation not having been for a long series of years kept up by the appointment of the members necessary to compose it, the bill was properly filed against the governing body of the particular church without making the corporation in its corporate character party to the record (2). The Hospital of St. Cross, in 1157, was established for certain charitable purposes, and was governed by a master and brethren ; in 1-148 the Rectory of St. Faith was appropriated by the Bishop of Winchester to the hospital, for the purposes of endowing a district charity intended to be established within the hospital. The hospital, which adjoined (1) Dauijai-s v. Bivu;:, ^8 Bcav. 233 ; S W. R. 2L'5 ; 6 Jur. (N. S.) 854; 29 L. J. (Cli.) IJ85. (2) lb. ECCLESIASTICAL MATTERS— BURIAL GROUNDS, &0. 763 the parisli of St. Faith, had a chapel designed for the use of the Part i. inmates, and the master of the hospital was an ecclesiastical per- son ; the power of appointing to the mastership being in the bishop. The parish church of St. Faith was destroyed at some time subsequently to this endowment, and never was rebuilt ; and the inhabitants during a long period attended divine service at the chapel of the hospital, and their baptisms, burials, and marriages were performed there ; by an Act of Queen Elizabeth it was enacted that the church and possessions of the hospital should remain the property of the hospital and be employed for the charitable uses for which the hospital was founded. The Lords Justices, with the assistance of "Wightman and Erie, JJ., upon a petition by the churchwarden (who was in orders) of the parish of St. Faith praying the discharge of an order previously obtained for an injunction restraining him from performing divine service in the chapel of St. Cross, and for liberty to perform his duties as churchwarden ; held, dismissing the petition, that this statute of Elizabeth negatived any presumption, which might have arisen from the long use of the chapel, that there had been such a union of the rectory with the mastership of the hospital as to make the chapel of the hospital the parish church of the parish of St. Faith (1); and, \emhle (per Wightman and Erie, JJ.), there was no legal mode by which the bishop and the master could effect a union of bene- fices so as to affect the right of the hospital to the ownership of its chapel ; and also, semble, that the mastership of an hospital could not be thus united with the rectory of a parish, the duties of the two offices being of distinct natures ; and {per Lord Justice Turner) the presumption of a union of the rectory with the mastership of the hospital was made more difficult by the fact that such union could not be effected in any ordinary mode without a breach of trust, the rectory being given to the hospital in trust for a district charity (2) ; and it is no part of the office of a churchwarden to J^'^'^^^P'^'J °^ perform or provide for the service of a church during a vacancy in churchwarden the incumbency ; the course to be pursued is for the churchwarden thJ'servioe of to act under a sequestration to provide for the services ; and in so \^^^^l^ll^_ He must act under a sequestration to provide for the services, and acts as ofSoer of the bishop. (1) Att-Gen. v., St. Cross Hospital, 2 Jur. (N.S.) 336; 25 L. J. (Ch.) 202. (2) lb. 764 ECCLESIASTICAL MATTERS— BURIAL GROUNDS, &a Part I doing he acts as officer of the bishop and not as churchwarden (1). 1 And where, after a receiver of charity property had been appointed, W. H., the churchwarden of St. Faith, insisting that the chapel within the hospital was the parish church of St. Faith, in order, as he alleged, to try the right, forcibly prevented the chaplain per- forming divine service therein as he had usually been accustomed to do ; the Lords Justices, afSrming the decision of the Master of the KoUs, Sir J. Romilly, restrained W. H. from interrupting or interfering with the performance of divine worship in the chapel (2). Trustees of a 3. The trustees of a chapel cannot set up, on an appointment of set-up St"^ ^ew trustees, that their eestuis que trust, the congregation, have their cestms departed from the doctrines upon which the chapel was founded, que trust, the ^ r r ' congregation, and therefore that they are not entitled to the enjoyment of the have departed , , . , . , ... from the origi- chapel ; in Order to try that question they must initiate proceedings —to try that ^^ the name of the Attorney-General. And where the effect of a proceedings deed was the appointment of new trustees of a Baptist chapel, but must betaken J^^ r jr ' in the name of the object was to transfer the property, without the consent of the the Attorney- . i . i n n i i i . i i General. congregation, to another church, which had seceded and established an independent place of worship ; the Master of the Eolls, Sir J. Eomilly, directed the appointment of new trustees, and ordered a conveyance of the property to be made by the trustees under the existing appointment to such new trustees when appointed (3). No injunction 4. Where the Ecclesiastical Commissioners had acquired a site pulUng'down^ ^^^ ^^^ erection of a church within a metropolitan district, and part of an m- ^j^g church was built, and had been raised six feet, when the tended church huilt beyond vestry of the district interfered, alleging that the building was line of build- being erected several feet beyond " the regular line of build- thrconsent'of ^^S^ " ^^ ^^® Street, and an application was made for the consent tiie Metro- gf the Metropolitan Board of Works, which was refused : and the polithn Board _ -^ ' of Works. erection being attempted to be continued, the vestry pulled down part of the building, and the commissioners thereupon filed a bill for an injunction ; Lord Chancellor Campbell held, reversing the decision of Yice-Chancellor Sir J. Stuart, that upon the construc- tion of the Metropolis Local Management Act (18 & li» Yict. c. 120, s. 148), and the Metropolis Local Amendment Act (19 Ar 20 Vict. (1) Att.-Gen. v. St. Cross Hospital, 2 Jur. (N. S.) 336 ; 25 L. J. (Ch.) 202. (2) Ait.-Clin. V. St. Cross Hospital, (3) Nnvsome v. Flowers, 7 Jur. 18 Boav. 601 ; 2-1 L. J. (Ch.) 148. (N. B.) 12G8 ; 31 L. J. (Ch.) 2'J. ECCLESIASTICAL MATTERS— BURIAL GROUNDS, &c. 765 c. 112, s. 3), the powers of the Ecclesiastical Commissioners under the Paet I. 58 Geo. 3, c. 45, and the 59 Geo. 3, c. 134, and subsequent Acts _^^^^^^^_^ extending their provisions relating to the affairs of the church, were not reserved to them, nor were they exempted from the operation of the local Act, and dissolved a perpetual injunction which had been granted by the Court below (1). 5. An incumbent of a parochial chapel — created by a private and local Act of Parliament for building a new parish church and the parochial chapel, which contained provisions as to the control to be^ exercised by the vicar (who was to retain all ecclesiastical dues) over the minister and services of the chapel — was not allowed to restrain the incumbent of the mother church from publishing banns and celebrating marriages between persons resident in the district parish, nor from receiving ecclesiastical dues ; on the ground that an order in council purporting, under the 3rd section of the 2 & 3 Vict. c. 49 (The General Church Building Act), with the consent of the bishop alone, upon the representation of ecclesiastical commissioners, to order the assignment of a district to a parochial chapel under a local Act was ultra vires (2). And the Court upon the construction of the Church Building Acts (2 & 3 Vict. c. 49 ; 6 & 7 Vict. c. 37 ; 7 & 8 Vict. c. 94 ; 14 & 15 Vict. c. 97 ; and the 19 & 20 Vict. c. 104), in connection with the above named private local Act, also held that the provisions of a local Act governing a parochial chapel remain in force where they are not specially repealed by the Church Building Acts. The rule of construction, that a general Act of Parliament does not repeal or affect a prior special Act of Parliament without express words of reference, applying to the Church Building Acts (3). 6. The Court of Chancery has no jurisdiction to direct the The Court of restoration of the interior of a church to its former condition from nojuSotion which it had been altered, nor to order an incumbent of a church, *°st™tioQ ^f who has made alterations in the building by removing the pews, tt^e interior of . a cnurcn ; but and substituting chairs, to take the necessary proceedings to obtain the Court will a faculty from the bishop of the diocese for the restoration of the alteration of (1) Ecclesiastical Commissioners v. (2) Fitzgerald v. Ghampneys, 2 J. & Clerhenwdl {Vestry), 7 Jur. (N. S.) H. 31 ; 9 W. E. 850; 30 L. J. (Ch.) 818 ; 30 L. J. (Ch.) 454. 777 ; 7 Jur. (N. S.) 1006. (3) lb. 766 ECCLESIASTICAL MATTEES— BUEIAL GEOUNDS, &c. Pakt I. church (1). But the Court (Lord Chancellor Westbury) granted an ' injunction to restrain the alteration of the walls or brickwork of biiokwork of a ^^^ church without the authority of the archdeacon or bishop, on church with- the plaintiff's undertaking to apply to the proper ecclesiastical out authority, _ ^ , ^ , , , . .; • ■ i ^ x /os on Plaintiff Court for authority to restore the church to its original state {Z). toapply to^fhe 7. Where a managing body of a religious society appointed an CourTfof "^^ agent at a salary, " with six months' notice of separation on either authority to side," with liberty to occupy and carry on his trade in a house church. belonging to the society, and afterwards summarily dismissed him for alleged misconduct, and resumed the possession of the house, of which they were afterwards forcibly dispossessed by the agent ; on a bill by the managing body, Vice-Chancellor Sir J. Stuart granted an injunction to restrain such agent from disturbing the possession (3). A dissenting 8. A dissenting minister placed in possession of a chapel and oniy^enant at dwelling-house by persons in whom the legal estate is vested in will of the trust to suffer the chapel to be used for the purpose of religious chapel and _ '^ . dwelling- worship, is, at Law, only tenant at will to such trustees (4). And which posses- where a general trust of a public nature is created it is essential to Sven to hioT t^^ purposes of the trust that a majority of the trustees should by the trus- have the power, both at Law and in Equity, of binding the majority ; Where a gene- and therefore where a chapel had been conveyed to trustees public nature appointed by the majority of the men communicants of a congre- majority of the g^-tion of dissenters, for the use of the congregation ; and according trustees has to the ordinances of the society, the pastor was to be first invited the power of _ . . binding the to ofSciate for a certain time by way of probation, and if approved was to be elected by a majority at a church meeting called for that purpose ; and a pastor had been invited to officiate for a year, but before the expiration of that time, was displaced by a majority of the trustees on the ground of alleged misconduct, and the trustees had given notice to the minister that the chapel should be closed against him ; and at a meeting professed to be a church meeting, but not duly called, it was resolved that the probationary (1) Oardinall v. Mdyneux, 4 De G. 7 Jur. (N. S.) 15. P. & J. 117 ; 7 Jur. (N. S.) 854 ; 4 L. (4) Perry v. Shipway, 1 GifF. 1 ; 4 T. (N. S.) 605. De G. & J. 353; 7 W. E. 406 ; 5 Jur. (2) lb. (N. S.) 535, 1015. (3) Spurgin v. White, 2 Giff. 473; minority. ECCLESIASTICAL MATTEES-BUEIAL GEOUNDS, &0. 767 pastor should become pastor, and that new locks should be placed Paut I. on the chapel door : and by means of locks affixed in pursuance of L this resolution a minority of the trustees retained possession of the chapel, and the probationary pastor continued to officiate .after the probationary period had expired ; the Lords Justices, affirming the decision of Vice-Chancellor Sir J. Stuart, held that the majority of the trustees was entitled to an injunction to restrain the minister from officiating, and the trustees who constituted the minority from acting or permitting the minister to officiate in the chapel (1). 9. Where the coal under parts of the glebe of a vicarage had at The inoum- different times since 1756, with the consent of the vicars for the cannot open ° time being, been gotten by the persons working adjoining collieries, ™™g™™of'°"* and royalties had been paid to the vicars for the time being, the patron and Till! 1 CI ordinary, and working being conducted solely by underground passages from the quiere whether adjoining collieries without entering on the surface of the glebe ; Ecclesiastical the Court held, that no presumption could be drawn from these 9°™™'^." , ' ^ ^ sioners is not facts that there had been any grant authorizing the vicars to open also necessary. mines (2) ; and the iucumbent of a living cannot open mines with- out the consent of the patron and ordinary (3) ; and queer e, whether he can do so with such consent, without the sanction of the Eccle- siastical Commissioners (4) ; and the patron of the living is the proper person to institute a suit to restrain the opening of mines, and generally the only proper person ; but, semhle, the ordinary may take proceedings to prevent waste by collusion between the patron and incumbent ; but the patron's right is only to restrain further waste, and does not extend to an account of past profits before the filing of the bill ; and upon a bill by the patron to have an agreement between himself and the incumbent for opening and working mines declared void and cancelled, and to restrain future working, the Court declared that the workings were not lawful, and that the proceeds ought to be laid out for the permanent benefit of the living ; but, being of opinion that if duly authorized the workings would be beneficial to the living, directed an inquiry what steps should be taken to obtain the concurrence of all necessary (1) Perry v. Sldpway, 1 Giff. 1 ; (2) Bartlett v. Phillips, 4 De G. & 4 De G. & J. 3.53 ; 7 W. R. 406 ; J. 414. 5 Jur (N. S.) 535, 1015. (3) Eolden v. Weehes, IJ. & H. 278. (4) lb. 768 ECCLESIASTICAL MATTERS— BUEIAL GEOUWDS, &c. Part I. parties, and gave liberty to continue the workinars in the mean- ChaptbrVI. f. , . ^° /,,, time, subject to account (1). Purchasers of 10. Where persons had purchased family graves in perpetuity in perpetuity ■'^ ^ private burial ground attached to a dissenters' chapel, vehich burial round ^^^ afterwards closed by order of the Queen in Council, under the attached to a provisions of the 15 & 16 Vict. c. 85, and there was no formal dissenting chapi.1, are grant executed, but their title was merely evidenced by a receipt injunction re- ^°^ ^^^^ purchase-money, stating the purchase ; the Master of the straining the RqIIs, Sir J. Eomilly, held that they were entitled to an iniunction trustees trom •' •" ■' removing, &o., to restrain the trustees from removing, obliterating, or defacing the gravestones, graves or gravestones or monuments belonging to the plaintiffs, and from applying the ground to other purposes ; but that the injunc- tion could not be extended to the graves and vaults of other pur- chasers not parties to the suit ; and that the rights of the trustees to the remainder were unaffected ; and that the injunction could not be extended to restrain them from applying this latter ground purchased by them to such purposes as they might think proper (2). Mortgagees of And where land has been set apart as a burial ground, in which as a burial- burial places have been purchased in perpetuity, a Court of Equity cliased m"per- ^^^^^ restrain tlie holders of the legal estate, though claiming as petuity will mortgagees, from destroying or defacing such graves, or doing any from destroy- act which may prevent future interments. And where the trustees preventing of a chapel and burial ground had executed a mortgage of the pro- perty, which was described in the conveyance as " a chapel and burial ground," the Master of the Eolls held, that this amounted to notice to the mortgagee and those claiming under him of the purposes to which the property was applied, and that they could not, as against the plaintiffs, who were subsequent purchasers of graves and vaults in perpetuity, and who had been in possession for upwards of twenty years, apply the ground purchased by them to any purposes other than those of burial (3). But where a bill was filed by a parishioner on behalf of himself and all others, for an injunction to restrain the defendant, the rector of the parish, from building a school-house in the churchyard, the Court refused the injunction, the injury not being of an irreparable nature ; and, (1) Holden v. llVefcs,! J.&H. 278. 1189; 25 L. J. (Ch.) 883; 26 L. J. (2) Morelandv. Uichanlsoii, 22 Beaw (Cli.) 690. 596 ; 2 Jur. (N. S.) 72(; ; 3 Jur. (N. S.) (3) lb. future inter- ments. ECCLESIASTICAL MATTERS-BUEIAL GEOUNDS, &o. 769 semhle, the Court has no jurisdiction to interfere at the instance of a Part I. parishioner (1). The Court has jurisdiction to restrain, at the suit "^'^'^^" ■ of the churchwardens of a parish, a person pulling down the church- ^gt^,.^°"^^^^'^ yard wall, though in assertion of an alleged right of way, because pulling down though the churchwardens might not be able to maintain an action yard wall, at law for such trespass, they might have redress in the Ecclesiastical Court ; and the Yice-Chancellor, Sir L. Shadwell, said that, in his opinion, this Court ought, in such a case, to be ancillary to the Eccle- siastical Court, and to grant an injunction as in other cases where any act in the nature of waste is threatened or committed (2). 11. On the principle of protecting property pending litigation. The Comt the Court will, in a suit to impeach a conyeyance of an advowson, ^'l^j^™^f"'* restrain the institution of a clerk, even as against a defendant conveyance of ,.. ^ „ TIT •! •! '^® advowson, claiming to be a purchaser for valuable consideration without notice restrain the under it (3). And in Potter v. Chajaman (4) the Court granted ^ derk. an injunction, till answer and further order, on the filing of a bill. '^^^ ^"'™* ^^ ... ' in a proper and before the defendants had appeared, prohibiting the bishop ease restrain from inducting one of the defendants or any other person to a from iaduct- living ; on the ground that the defendant C. was devisee in ™S' trust to present the plaintiff, and had procured himself to be pre- sented for institution and induction. And where the bill stated that the inhabitants of Bilston were entitled to elect a minister to a chapel there, within the jurisdiction of the Dean of Windsor and Wolverhampton, and that the custom of electing a minister, when the office was contested, was for the votes to be taken either in the chapel or an adjoining school-house, and in one place only, and in the presence of the chapel-wardens, who were to provide a parch- ment roll, duly stamped, for each candidate, on which the voters entered their names in their own writing, with a seal on the same line with every name ; that the poll was kept open for an indefi- nite time, and that the roll of the successful candidate was signed at the foot of it by the wardens and attested by two witnesses, and then formed the official instrument of nomination ; that an election had lately taken place, in which the wardens appointed four polling places, of which the school-house was one, that the names of (1) The EarlofFUzwilliamv. Moore, (3) Gnenslade v. Dare, 17 Beav. Fl. & K. 287 ; 3 Ir. Eq. Rep. 615. 502. (2) Marriott v. Tarpley, 9 Sim. 279. (4) Dick 146 ; Amb. 98. 3 D 770 ECCLESIASTICAL MATTERS -BUEIAL GROUNDS, &c. Pakt I. the voters were entered in polling-books by assessors appointed '- by the wardens ; that there were no parchment rolls ; that the poll was kept open for five days only, and that the result of the election was reported to the Dean of Windsor by a letter signed by the wardens only, and unattested ; on a motion to dissolve an injunc- tion, which had been obtained ex jjarte, to restrain the Dean of Windsor from licensing the minister whose name had been so returned by the chapel-wardens, when it appeared that the mode in which the election was taken had been previously agreed on by the candidates, and approved of by a resolution at a public vestry- meeting of the voters, and that nearly all the voters polled ; the The Court will injunction was dissolved with costs (1). The Court in Ireland ease restr.iin granted an injunction to restrain an archbishop from collating, from TOllato^ ^^ ^^^ ^^ lapse, to a deanery pending a suit in the Consistorial for lapse to a Qourt respecting the presentment by the chapter (2). And where the The Court will subject of litigation (this case being a suit for specific performance case restmin ^^ ^° agreement for the sale of the next presentation) was the next a bishop from presentation to a living then vacant, the bishop in whose diocese it taking advan- -^ _ . . tage of a lapse was situate was restrained from instituting, &c., and from taking The Court will ^'d vantage of any lapse pending the suit (3). And in MUligan v. in a proper Mitchdl (4) an injunction was srranted upon affidavit, before case restrain . trustees of a answer, to restrain the defendants, trustees of a chapel erected by electing a a Presbyterian congregation for religious worship, according to the mmi er. usages, discipline, and doctrine of the Church of Scotland, from electing as minister a person not duly licensed by that church ; but an injunction to restrain them from allowing persons not so licensed to officiate, and from preventing persons so licensed and otherwise duly authorized from officiating during the intermediate period prior to such election, was refused. And where persons who were merely hirers and occupiers of seats or pews in a dissent- ing meeting-house, which was held in trust for the use of the congregation, but who did not take the sacrament there, had been excluded from voting at the election of a minister to officiate in the meeting-house, the Court refused an application for an injunc- tion to restrain the individual so elected from acting as minister (1) Davids V. Banks, 5 L. J. (N. S.) (2) Daly v. Archbhhop of Lublin, Ch. 274. Fl. & K. 263. (3) NichohoTi v. Kmijip, 9 Sim. 3L'il. (4) I My. & K. 4-1 Li. ECCLESIASTICAL MATTEES— BURIAL GROUNDS, &o. 771 or receiving the emoluments attached to his office (1), And where, Part I. by neglect, the number of trustees in a trust to present to a living L was not filled up at the time of an avoidance, the Court would not by injunction prevent the effect of a presentation, under the legal title of the heir of the surviving trustee, without a special ground ; but the Court will take care as to the future that the trust shall be properly filled up (2). But where lands and a free chapel were vested in two persons by grant, and the original grantees vested them in feoffees for ever, with a power to appoint new ones when- ever the number should be reduced to four, but there was no provision that a particular number should form a quorum, nor, in terms, was there any power to appoint a minister, but the rents were to be paid to one ; and appointments of feoffees and ministers took place until 1823, when a scheme was proposed, a reference directed, and orders made upon it ; and in 1866 the feoffees were reduced to three, one being incapable of acting, and the other two by deed, to which all three were parties, but which was only exe- cuted by two, appointed H. as minister ; and a bill and information were filed to restrain the appointment against the feoffees, vicar, and bishop ; but a second appointment was made after an injunction had been granted ; Vice-Chancellor Sir E. T. Kindersley held, that the appointment by the two feoffees was valid, and that the second appointment after an injunction had been granted was also valid, and dismissed the bill with costs as against the feoffees and bishop ; but, inasmuch as the vicar had appeared and then dis- claimed, as against him without costs. The Yice-Ghancellor said that he thought he might say that the right of election being in trustees, nothing being said as to number, or what should form a quorum, whatever happened to be the number they had a right to appoint and nominate. And the Court will not interfere to prevent ^o interfer- the removal of the minister of a dissenting chapel vested in trustees, remotaFo7^"* when the deed is silent as to the mode of electing the minister and minister of a y _ dissentiDo; his continuance in office, and contains no provision for his support, chapel where but he is dependent for it on the voluntary contributions of his pro^ion for flock (3). In Foley v. Wontner (4) Lord Chancellor Eldon ob- ^i;«°f^*Xe. (1) Leslie v. Bimie, 2 Russ. 114. (3) Porter v. Clarke, 2 Sim. 520. (2) Ait.-Oen. v. Bishop of Litchfield, (4) 2 Jac. & W. 245, 247, 5 Veg. 825. 3 B 2 772 ECCLESIASTICAL MATTEES— BUEIAL GEOUNDS, &c. Part I served that the Court could do very little in cases where it was Chaptek VI. n , . , ,. . called upon to execute trusts with respect to dissenting meeting- houses held under trust deeds ; and, pending a suit for the regulation of a dissenting meeting-house, the practice of the Court is, if it finds a minister in possession, and ministering in the way in which it was the meaning of the congregation he should, preaching the doctrines that were intended, to continue him in the meantime, whether he A dissenting was duly appointed or not. Bat a dissenting meeting-house must must continue continue devoted to the doctrines usually agreed on at the founda- doctrines*of ''^ tion of the trust, though some of the congregation may change their the foundation opinions (1). And in Attorney-General v. Pearson (2) Lord Chan- 01 tne trust. ± \ / ./ ^ \ ' cellor Eldon said, that the Court is unquestionably bound to administer trusts for the benefit of Protestant dissenting congrega- tions, consisting in the application of trust property to the main- tenance of a preacher to the congregation. 1'2. Where the trustees of a chapel were proceeding to mortgage it for a small sum, without any apparent necessity for such a course, Vice-Chancellor Sir W. P. Wood granted an injunction to restrain them from executing such mortgage, the plaintiff undertaking to abide by any order the Court might make as to the payment of the debt proposed to be secured (3). 13. Where a rector, who was also the patron of a living, had given warrants of attorney to various creditors who had mortgages on the advowson, subject to an agreement that the judgment to be entered up by the first mortgagee should have priority over the rest whenever execution should be issued; Vice-Chancellor Sir J. L. Knight Bruce held, that the agreement pointed so particularly to making the judgments charges on the living that the Court could not, without giving its aid to simony, at the suit of the first mort- gagee, give effect to it by granting an injunction and a receiver to restrain the other judgment creditors from recovering from the sequestrator, under a sequestration issued by puisne mortgagees, the money in the sequestrator's hands (4). But the Court, in Silver v. Norivich {Bishop of) (5), upon a bill by annuitants, in respect of an- nuities charged on rectories and a vicarage, appointed a receiver of (1) Foley V. Wontner, 2 Jac. & W. (4) Long v. Stwie, 3 De G. & Sm. 245, 247. 308. (2) 3 Mer. 353, 396. (5) 3 Sw. 112. (3) Bignll v. Foster, 18 Jur. 39. ECCLESIASTICAL MATTEES— BUEIAL GEOUNDS, &a 773 the profits of a rectory under sequestration, and granted an iDJunc- Part I. tion against enforcing sequestrations by certain of the defendants, '- alleged by them to be prior to the plaintiffs. And in White v. Peter- horough (Bishop of) (1), where a third incumbrancer on a rectory had obtained a sequestration, a receiver was appointed at the instance of a second incumbrancer, with a direction that the receiver should, after the priorities of the incumbrancers had been ascertained, pay, according to the priorities, what was due in respect of the incumbrances. 14. In Durston v. Sandys (2), where the defendant, upon his presenting the plaintiff to a parsonage, took a bond of him to resign, which, though in itself lawful, yet the patron making an ill use of it — viz., to prevent the incumbent from demanding tithe of the defendant — the Court granted a perpetual injunction against the bond. 15. Where the trustees of a chapel, not endowed within the 11 & 12 Geo. 3, c. 16, applied, according to the trusts of the deed, the sacramental and other collections to the maintenance of the chapel and the payment of the chaplain, &c., for some years, without the interference of the rector of the parish, who at last, along with the churchwardens, filed a bill for an account of the sums received by the trustees, and an injunction to restrain them from applying the collections ; and, pending the suit, the rector proceeded before the archbishop, and had the chaplain's license withdrawn, in con- sequence of which the chapel was closed ; the Court, although of opinion that the collections belonged to the plaintiff, for the benefit of the poor of the parish, refused an account against the trustees, who had acted according to their trusts, and the injunction, as the plaintiff had rendered it unnecessary by his proceeding before the archbishop ; and such a suit should be by information, and not by bill (3). The Vicar-General of the Eoman Catholic Church at Gibraltar is liable to account for the fees received by him for administering the offices of the church, such fees being by custom regulated and subject to the control of the assembly of elders, or junta, of which he is the head, and disposed of by them for the general purposes of the church ; but a decree, granting an injunc- (1) 3 Sw. 109. (2) 1 Vern. 411. (3) Magee v. Bishop of Cashel, 9 Jr. Bq. Rep. 319. 774 ECCLESIASTICAL MATTEES -BURIAL GEOUNDS, &a. Part I. tion against the receipt of such fees by the viear^general, and '. directing him to replace, in certain parts of the church, the tariff, or table thereof, was, on appeal, varied by the Privy Council by dissolving the injunction, and decreeing him only to account, as receiver, for all sums paid to him on account of the same (1). 16. Where the clerk of a patron who had recovered in a qiiare impedit, filed a bill under the Act of 1 Geo. 2, c. 23, against the bishop presenting and his clerk, for an account of the profits of the benefice pending the litigation, and it contained charges of acts of interference with the profits, and of waste by the cutting of trees and otherwise, " by the defendants, or one of them," and of a con- version of a portion of the profits " to their own use," a general demUJTer by the bishop was allowed ; but the Court also held, that such clerk defendant is liable, in a suit instituted in the Chancery Court under 1 Geo. 2, c. 23, to account for the waste committed, and that the incumbent's remedy for such dilapidation is not con- fined to a proceeding in the Ecclesiastical Court under 11 Will. 3, c. 6, and 12 Geo. 3, c. 10 (2). Mortgagor of 17. Where a manor with an advowson appendant is mortgaged, advowson Eind the church becomes void, the mortgagor shall present, unless presents"* foreclosed ; and if, pending a suit by the mortgagee to foreclose, the church becomes vacant, though the defendant has no biU to redeem, yet being ready and offering to pay the principal, interest, and costs, the Court will grant an injunction to stay proceedings in a quare impedit brought by the plaintiff, for the mortgagee can make no profit by presenting to the church, and the mortgagee, until a foreclosure, is but in the nature of a trustee for the mortgagor (3). 18. Upon a bill filed to establish a right to a chancel as part of a parish church, against the lord of a manor, who claimed it as appendant to the manor or manor-house; it appearing that the chancel was an ancient chapel coeval with the church, and that it was a private chapel erected by the lord of the manor; Vice- Chancellor Sir E. T. Kindersley held, that the immemorial use and occupation, coupled with reparation, entitled the lord of the (1") 7^M(/7je8 V. PormZ, 4 Moore, 41. (3) Amhurst v. Duwling, 2 Vcrn. (2) Ci-ii'mpton V. Bishop of Mcath, 401; et o. Att.-Geii. v. IJesketh,2YeYn. 1 t^aLi. & Sc. 297. 54y. ECCLESIASTICAL MATTEES— BUBIAL GROUNDS, &a. 775 manor by prescription to the perpetual and exclusive use of the Part r. chance] ; and that this right might exist notwithstanding that the "^^™ ' freehold might not be in the person prescribing, and although the estate or house to which the chancel was appendant might not be situate in the parish (1). 19. Where the vicar of a parish suffered judgment to be entered up against him in the Court of Exchequer for a debt, in virtue of which the tithes, rents, and profits of the vicarage were sequestered ; and after the sequestration had continued for some time the vicar filed his bill against the judgment creditor, the sequestrator, and the bishop, praying that an account might be taken of the tithes, rents, and profits of the vicarage received by the defendant B., the sequestrator, and of the payments by him in respect.of such tithes, Ac, to the defendant J., the judgment creditor, and to ascertain what remained due upon the judgment and writ of sequestration, and for an injunction to restrain the judgment creditor from pro- ceeding with an action against the plaintiff to enforce the covenants for the payment of the purchase-money of the advowson; Vice- Chancellor Sir W. M. James held, that the bill must be dismissed with costs against the sequestrator and bishop on the ground of want of privity, and against the judgment creditor on the ground that the matter was one exclusively for the Court of Common Law out of which the execution had issued ; the Vice-Chancellor said he was not aware that there was any ground for saying that this Court had authority to take the account against the sequestra- tor for the mere purpose of discharging a sequestration under a legal judgment (2). 20. A Court of Equity will not aid a congregation to remove Equity will their minister where they, having a power to remove him at dis- gregation*^°°" cretion, have exercised that power oppressively ; the Court will ^^^™!*j.^\ not give any aid against a defendant where the action taken against it has acted n,. 1 1 -All , • oppressively. him by the plaintiff has been oppressive. And where a notice con- vening a meeting, expressed to be " for the purpose of bringing charges against and considering the dismissal of T. B., a minister of a chapel," was sent round to the members of the congregation, (1) Ohurton v. Frewen, L . B. 2 Eq. (2) Williams v. Ivimey, 23 L. T. 634; 12 Jur. (N. S.) 879; 35 L. J. (N. S.) 100. (Ch.) 692 ; 14 L, T. (N. S.) 846. 776 ECCLESIASTICAL MATTEES— BUEIAL GROUNDS, &o.' Paet I. who had power to dismiss the minister at discretion ; and a second '- notice was given of another meeting, expressed to be held for the purpose of confirming the resolutions passed at the first meeting ; Lord Chancellor Hatherley, upon a bill filed for the purpose of ob- taining a declaration that the defendant was no longer minister, and for an injunction to restrain him from the use of the chapel, held, affirming the decision of Vice-Chancellor Sir W. M. James, that the notices were not proper or sufficient, and that the resolutions for dismissing the minister come to at the meetings convened in pursuance of the notices were invalid, as there had not been any exercise of discretion by the congregation at the meeting (1). The Court will 21. The issuing of a writ de vi laicd removendd from the common ference'with ^^.w side of the Court of Chancery has fallen into desuetude, as induction to a ^jjg same relief can be obtained by iniunction in a case of obstruc- benenoe. •' ■' tion to the induction of a party to a benefice, to restrain all interference therewith (2). Trustees of a 22. Whenever the trustees of a religious society, organized under sociltTwill be the (III. U.S.) general law concerning their incorporation, do any act restrained which obstructs the enioyment of the property for the purposes and doing any act •' •' j. ± .< ir jr obstructive of in the mode authorized by the usages of the church as an organized of the pro- body, they are guilty of a violation of the tnist, which, as in other puiMses ^ ^ cases of trust, will be corrected by a Court of Chancery. So, although authorized. ^ mandamus might lie, or though the statute has authorized the members of the church to remove the refractory trustees and elect others. Hence an injunction lies where the trustees, by direction of a minority of the members, close the church edifice against their minister and those disposed to attend upon his ministrations, and contrary to the wish of a majority of the members. So, although the particular act of closing the church was already done, it was not like a simple act of trespass, but was a continuing act, designed to deprive the members of the church and their pastor of their rights in the future as well as in the past (3). So, where land had been conveyed to the defendants, trustees of a religious society, for the use of such society, according to the discipline, &c., (1) Dean v. Bennett, 19 W. R. 363 ; 5S3 ; 17 W. R. 502. 18 W. R. 487. (3) Brunnenmeyer v. Buhre, 32 111. (2) Jinkiiis, In re, L. R. 2 P. C. 258 ; 183 (Amr.) 38 L. J. (P. C.) 6; 10 L. T. (N. S.) ECCLESIASTICAL MATTERS— BUEIAL GEOUNDS. &c. 777 and the society erected a church thereon, the basement of which Part I. was made for a prayer-room ; and the defendants leased the base- L ment to the teacher of a common day-school, with permission to make the changes in the room suitable for such purpose ; it was held that the plaintiffs, members of the society, might have an injunction against such leasing (1). 23. Where land has been dedicated by the owner for a burial- place and a school-house lot, and the school directors are about to rebuild the school-house ; the heir of the donor, not being a resi- dent of the town, has no interest such as authorizes him to inter- fere by injunction; the Courts would interfere to prevent any encroachment upon the burial-place. But the building of a new school-house upon the portion of the lot dedicated for school pur- poses is not such an encroachment ; hejice the directors had the right to rebuild, and the decree of the Court below, restraining them, was error (2). 24. Where a bill was brought by the plaintiffs alleging them- The Court will selves to be trustees and agents for the German Lutheran Church, ^emova^ of*^ composed of the members of the German Lutheran Church of t°™'^^*°'i^^ '^ and graves. Georgetown (U.S.), on behalf of themselves and the members of the said church, charging, amongst other things, that the lot in question had been laid out for the sole use and benefit of the Lutheran Church for religious purposes, and that the possession of the plaintiffs had never been questioned, and that the lot had been exempted from taxation as property set apart for a religious purpose ; and that E., one of the defendants, had unwarrantably disputed their title ; and had entered upon the lot and removed some of the tombstones, and meant to dispossess the plaintiffs, and to remove the tombstones and graves ; and praying that a writ of injunction might issue ; the Court held, upon the facts of the case, amongst other things, that the appropriation should be sustained, as a dedication of the lot to public and pious uses, rendered valid by the Bill of Eights of Maryland, which recognised the doctrines of the Statute of Elizabeth relating to charities ; and Judge Story closed his opinion in favour of an injunction as follows : " No action at law would afford an adequate and complete (1) Pci-ry V. M'Eweii, 22 Ind. 440 (2) PoUy. School Directors, iZVmu. (Amr.) 133 (Amr.) " 778 ECCLESIASTICAL MATTERS— BUEIAL fiEODNDS, &c. Pabt I. remedy. This is not the case of a mere private trespass, but a — " public nuisance going to the irreparable injury of the George- town Congregation of Lutherans. The property consecrated to their use by a perpetual servitude or easement is to be taken from them ; the sepulchres of the dead are to be violated ; the feelings of religion, and the sentiment of natural affection of the kindred and friends of the deceased are to be wounded ; and the memorials erected by piety or love, to the memory of the good, are to be removed, so as to leave no trace of tlie last home of their ancestry to those who may visit the spot in future generations. It cannot be that such acts are to be redressed by the ordinary process of Law. The remedy must be sought, if at all, in the protecting power of a Court of Chancery, operating by its injunction to pre- serve the repose of the a*hes of the dead, and the religious sensi- bilities of the living " (1). 25. In Greencastle v. Hazelett (2) it was held that a city (U.S.) cannot be enjoined from establishing and using lands as a cemetery on the ground that the drainage above and below the surface leads into a choice spring of the complainant, an adjoining owner, which will thus be rendered valueless by the proposed use of the land. (1) Beatty v. Kurtz, 2 Pet. 566, 579, 581, 584 (Amr.) (2) 23 Ind. 186 (Amr.) I