Olnrttfll Slam ^rlinnl BItfararg iMaratiaU lEquttg Qlollcrttott '(Sift of E. 31. iiarahaU. 5I.ffi- 1. 1894 3 ^924 084 257 892 FOEMS OF CLAIMS AND DEFENCES IN THE Cxrarts of t^i Cj^anc^rg ^Wimn OF THE HIGH COURT OF JUSTICE; WITH NOTES CONTAINING AN OUTUNE OF THE LAW RELATING TO EACH OF THE SUBJECTS TREATED, AN1>AN APPENDIX OF FORMS OF ENDORSEMENT ON THE WRIT OF SUMMONS. BT C. STEWART DREWRY, OF TBE INNEB TEUFLE, BABBiaXEB ; Author of a" Treatiie on Itgunctiont," of" Reporti temp. Kituknley, V.-C." and other works. LONDON: BUTTEEWOKTHS, 7, FLEET STEEET, $afo ipnblig^ttg ts t^t Queen's most acdlcvi ^ayats- OnBUN: HODGES, FOSTER & CO. EDINBURGH: T. Sc T. CLARK ; BELL Se BRADFUTE. CALCUTTA: THACKER, SPINK & CO. BOMBAY: THACKER, VINING Sc CO. MELBOURNE: GEORGE ROBERTSON. 1876. Ko'^x-'^i LONDON : PRINTED BY C. ROWOETH AND SONS, NEWTON STREET, HIGH HOLBORN. PREFACE. The Appendix C, to the Judicature Act of 1875, contains only four Borms of Claims and Defences re- lating to actions in the Chancery Division of the High Court; and three out of those four Forms are devoted to actions for thei administration of estates. So far as those forms extend and are applicable to business belonging to the Chancery Division, they will of course be authoritative models and guides for the Draftsman. But, as the various heads of the ordinary jurisdiction, hitherto exercised by the Court of Chan- cery (and not displaced by the Judicature Acts from the Chancery Division of the High Court), extend over a very considerable number of subjects, it is con- ceived by the Compiler of the Forms oiFered in this work to the Profession, that they may be useful as guides, or at least as helps, to the younger members of the Profession; and may possibly occasionally save time to experienced Draftsmen. The writer has not attempted, except in one solitary instance,* to draw forms for imaginary states of facts; a course which would be at least unreliable, and might even be actually misleading. The course, therefore, * Torm in p. 151. IV PREFACE. that he has adopted, has been to take the facts for the several Forms, from reported cases relating to the most frequent subjects of Equity Jurisdiction ; and to endeavour to mould those statements of fiicts, and the consequent relief sought, in conformity with the general rules to be gathered from the Judicature Acts, and from the few Chancery Forms given in the Appendix C, of the Act of 1875. At the head of each Form, a reference is given to the reported case from which the facts are taken. Each set of Forms is followed by a note, giving a brief out- line of the Law on the particular subject as adminis- tered in Chancery; and in those notes, references are given to the leading authorities, and to the text books of reputation on the particular subject. In the Appendix (p. 245), Forms of Endorsement on tihe Writs of Summons wUl be found. C. STEWART DEEWRY. 4, King's Bench Walk, Temple, 1st Jvme, 1876. TABLE OF CONTENTS. Sect. 1.— TRUSTS. FORM PAGE No. 1. Action to establish a tnat on the language of a deed . . 1 2. Action to establish a trust created by parol . . . . 3 Note on the law of trusts . . . . ' . . . . 6 Sect. 2.— SPECIFIC PEKFOEMANCE. No. 3. Action to enforce «yeci^c_per/i>rTOareoe of a contract .. 12 4.- Action to enforce performance of an agreement between a land owner and a railway company ,. ,. 14 5. Action to eaforce specific performance of an agreement iy an injimction .. .. ..18 6. Action to enforce specific performance depending, on notice .. .. ., .. . , . . . . 20 Note on the law of specific performance . . . . 23 Sect. 3.— FEAUD. No. 7. Action to set aside a,fraud/alent transaction .. . . 28 i. . Ac&on \o sat a/^ie a. pur chase oMained iy fraud .. 30 9. Action to set aside deed obtained by undue influence • . 34 Note on the law of fraud in equity 38 SfiCT. 4.— MARBIED WOMEN'S SEPARATE ESTATM AND EQUITY FOR A SETTLEMENT. No. 10. Action against a married woman in respect of her sepor rate estate .. ^ 42 11. Action against a married woman, having separate estate, for her debts contracted Tiefore marriage . • . . 4S 12. Action to establish claim of a mwrried mowMn to an eqmty for a settlement .. .. .. ..48 Note oH the doctrine of the separate estate and equity for a settlement at a married woman .. . . 50 VI TABLE OF CONTENTS. Sect. 5.-N0XICE. roHH No. 13. Action to enforce management of a farm, pursuant to notice of a custom .. •• ' 14. Action to set aside sale of Shares in a company, vendor having notice of, and concealing defects . . . . 60 JSTOTB on notice, positwe or Oi/rect, and oomtructvee 64 Sect. 6.— PARTNEESHIP. No. 15. Action for an accoant between partners 69 Note on the law of partnership 71 Sect. 7.— BISECTION. No. 16. Action to enforce election ,■ • • . . 81 17. Action to enforce eleetion against a vridow, for election between dower and an annuity . . . . . . 83 Note on the doctrine, of election . . . . . . 85 Sect. 8.-0F INJUNCTIONS GENERALLY 95 Sect. 9.-INJUNCTI0NS TO RESTRAIN WASTE. No. 18. Action for injunction to restrain maste 104 Note on injunctions to restrain waste . . . . . . 107 Sect. 10.— INJUNCTIONS TO RESTRAIN NUISANCES. No. 19. Action to restrain wuisance hj fowlmg mater ., .. Ill 20. Action to restrain mmcmce by noise .. . . . . 113 Sect. 11.— INJUNCTIONS TO RESTRAIN INTER- FERENCE WITH LIGHT AND AIR. Nos. 21,22. Actions to restrain nuisance by interference with ancient lights ,. ., .. .. .. 115,117 23. Action to restrain nuisance by building 119 Note on injunctions as to restraining nuisance . . 121 TABLE OF CONTENTS. VU Sect. l%— INJUNCTIONS TO RESTRAIN INFBmGE- MENT OF COPYRIGHT. FORM PAGE No. 24. Action to restrain infringement of literary copyright . . 148 25,26. Actions to restrain infringement of mmsieal copy- right 149,161 Note on the law of copyright . . 153 Sect. 13.— INJUNCTIONS TO PROTECT TRADE MARKS. Nos. 27, 28. Actions to restrain infringement of trade mm-ks 163, 165 Note on the law as to the infringement of trade marks 167 Sect. 14.— ACTIONS RELATING TO INFRINGEMENT OF LETTERS PATENT. No. 29. Form of endorsement on the writ of smnmons . . . . 179 30. Action to restrain infringement of a patent for me- chanism .. . . 179 31. Do. do. for chemical invention .. .. .. 182 32, 33. Do. do. for oombinatum of known implements 184, 187 34. TJsnal form of issues . . .. '.. ..- .. .. 189 35. Proposed form of issaes - 189 36, 37. Forms of breaches .. .. 190 38. Forms of objections by defendant where allegation of prior patent 190 39. Ditto, where allegation of prior nse 191 40. Form of appeal, where trial by jury 191 41. Ditto, where no jury 192 Note as to the jnrisdictiou of eqnity in reference to patents 193 Note as to the law of patents 199 Sect. 1. What is and what is not the proper subject for a patent . . . . . . . . . . 199 2. What is and what is not infringement . . 204 3. What is and what is not antecedent pnbliiation 220 4. Of the specification and the constmction thereof 225 5. Of the general principles deducible from the authorities referred to 240 TABLE OF CASES. A. PAGE Adamson's Patent . . , . 234 Ainsworth -B. 'Walmsley .' 170 Att.-Gen. v. Conncil of Bir- mingham .. 125 V. Geary . . . . 7 V. Manchester and Leeds Ey. Co. . 97 V. Mayor of King- ston .. 126,128 V. Proprietors of Bradford Navigation . . 128 Attvvood V. Small . . 26, 64 Bach V. Longman . . . . 157 Bacon v. Jones . . . . 193 Ball u Kay 131 Balmer v. Hnnter 40 Barher v. Grace . . . . 229 Barrett v. Blagrare . . . . 25 Bateman v. Willoc . . . . 101 Bayley 1J. Bonlcott .. .. 10 Beard ». Egerton .. ..225 Beardmore v. Tredwell . . 137 Benson v. Benson . . . . 53 Betts ». Devitre .. ..223 V. Menzies . . . . 221 1). NeUson . . . . 206 Bidder v. Local Board of Health for Croydon .. 125 Blakemore v. Glamorganshire Canal Company . . . . 97 Booth ». Pollard .. ..26 Bovill V. Hitchcock . . . . 195 V. Keyworth . . . . 209 Bradley v. Hnghes . . . . 53 Bramwell v. Halcombe Brett V. Beckwith . . Bridge v. Brown Bromley v. Holland. . Brook V. Aston PAGE 154, 155 .. 73 .. 7 .. 102 .. 201 Brown, Ex parte, Be Seavans 40 Browne v. Warner . . . . 26 Burton v. WooUey . . 9, 71, 77 Butcher v. Kemp . . . . 90 Byne ^;. Potter .. ..102 ■!!. Vivian ■.. .. 102 Caldwell v. Vanlissingen . . 206 Candler «. Tillett .. .. 7 Carter v. Carter . . . . 67 Chubb V. Stretch . . . . 53 Churchman v. Ireland . ■ 93 aarke v. Clarke . . . . 139 Cocks V. Chandler . . . . 171 Columbine «. Penhall . . 40 Cooke «. Forbes .. -.138 Coope V. Taylor . . . . 174 Cope V. Evans . . . . 174 Coster ■». Coster . . . . 66 Crabb©. Crabb .. ..10 Crane «. Price .. ..203 Crump 7). Lambert . . • • 130 Curriers' Company b. Corbet 140 Curtis V. Piatt . . . . 196 D. D'Almaine v. Baosey . . 160 Dangerfield v. Jones . . 203 Davenport v. Davenport . . 109 TABLE OP CASES. Sean v. Bennett Deere v. Gnest De la Rue v. Dickinson Dent v. Tnrpin Dillon V. Parker, Dimsdale v. Dimsdale PAGE .. 41 109, 140 .. 238 .. iro .. 85 .. 41 Dixon V. London Small Arms Companv . . . . . . 220 Durell V. Pritchard . . 97, 140 ■■ E. Eade v. Williams . . . • 25 Eaden-«). Firth .. ..134 Earl of Mexborongh v. Bower 96, 97 Earl of'RipoM «. Hobart .. 127 Edwards v. M'Leay . . . . 40 Elmhirst v. Spencer. . . . 128 Elmsley i>. Bonrsier . . 206, 207 F. Feather v. The Queen Feuelly v. Kanscelot Fleet V. Brandon Flight ■!;. Barton Forbes v. Ball Foxwell V. Bostock . . 215 lOar 26 66 8 232 .. G. GafEee's Settlement . . . . 53 Gardner v. M'Cutcheon . . 9, 71 Gaunt.®. Finney .. .. 132 Gervais v. Edwards . . . . 26 Goldsmid v. Tnnbridge Wells Improvement Company 125, 127 - - ■ 7g 211 101 73 56 26 66 39 Goode V. Harrison Goucher v. Clayton . . Graves v. Honlditch Green v. Beesley ■». Otte ■». Smith Greenwood v. Bairstow Groves v. Perkins . . PAGE 128 73 57 133 168 52 H. Haines v. Taylor Hamper, Ex parte . . Hanson v. Keating . . Harrison v. Good ' V. Taylor . . Hartley v. Hurle Harwood v. Great Northern BaU. Co 199,203 Hastings v. Brown . ■ ■ • 226 Hawkes ■b. Hubback . . . . 62 Haygarth «. Wearing . . 40 Haynes v. Taylor . . . . 128 Hill®. Evans .. ..239 Hills V. Liverpool Gas Light Company . . . . . • 213 Hippisley v. Spence . . . . 109 Horton «. Mabon . . 199, 203 I. Inchbald ®. Robinson Isenberg v. East India Com- pany J. 133 140 Jackson c. Dnke of New- castle .. Jennings ©. Broughton Johnson v. Gallagher 1!. Talford.. ®. Wyatt . . Jones V. Jones V. Smith K. Kilpin V. Krlpin Kirwan v. Daniell Knott V. Morgan 142 26,64 . 53 . 93 . 135 109 67 10 27 168 TABLE OF CASES; XI X. PAGE Lady Elibank v. Montolieu . . 56 Lane v. Newdigate . . . . 97 LanfrancM v. M'Kenzie li3, 145 Lansdowue v. Lansdowne . . 110 Leather Cloth Company v. American Leather Cloth Cdihpany .. .. 167,174 Leeds v. Cheetham . . . . 102 Lewis V. Fnllarton . . . , 154 Liddard v. Liddard . . . . 8 Lilly^hite «; Trimmer . . 126 Lingard «>. Hibbertou .J 101 Lingwood " ». Stowmarket Company . . . . . . 124 Lister v. Eastwood . . . . 209 V. Leather . . . . 211 Lord PortarKngton v. Sonlby 100 Lowes V. Lowes ,. . . 87 Lumley v. Wagner . . . . 23 Lushington I'. Boldero .. 110 Lyon V. Home . . . . 41 M. , Mackay, Ex parte . . . . 40 M'Cormick v. Gray . . . . 208 Maddeford v. Anstwicke . . 39 Malcolm v. O'Callaghan . . 10 Mann v. Stephens . . . . 64 Margetts v. Barringer . . 51 Marshall v. Boss . ■ . . 171 Matthewman's case . ■ . . 53 May V. Roper . . . . 56 Miall V. Brain . . . . 8g Milligan tJ. Mitchell.. .. 97 Millington v. Fox .'. . . 168 N. Newall V. Elliott . . 223, 229 Norton v. Wood . . . . 103 Nottidge V. Prince . ; . . 41 Noys V. Mordannt . . . . 86 O. Ormson v. Clarke . . . . 204 Osborne v. Jnllior . . . . 75 Oxley v. Holden . . 225, 234 PAGE Parkes v. Stevens . . . . 207 Patent Bottle Eurelope Com- pany v. Seymer . . . . 204 Patent Marine Inventions Company v. Chadburn . . 195 Pendlebury v. Walker . . 39 Pilcher v. Rawlins . . . . 67 Podmore v. Gunning . . 40 Pollock v. Lester . . . . 137 Powys V. Blagrave . . . . 110 Pritchard v. Ames . . . . 51 Radde v. Norman . . Raggett V. Findlater Ramshire v. Bolton . . Rancliffe v. Parkyns Ray, Ex parte -^, Re Roadly v. Dixon Robinson v. Lofd Byron Robson V. Whittingham Routledge v. Low . . Rnshton v. .Crawley. . 173 171 40 86 51 51 88 97 140 159 230 S. Sampson v. Smith . . . . 131 Sannders v. Smith . . . . 153 Seavans, In re . . . , 40 Sellers V. Dickenson . . 205 Shattock V. Shattock . . 53 Simpson v. Hblliday . . 238 Singer Company v. Wilson . 197 Skinner v. M'Donall ■ . . 25 Smith V. Owen . . . . 139 V. London & North Western Rail. Co. . . 208 Soltau V. De Held . . . . 130 Sonthcome v. Bishop of Exeter . . - . . . 25 Spencer v. London & Brigh- ton Rail. Co. .... 131 Spokes V. Banbory Board of Health 126 Stein V. Croncher . . . . 102 Stephens v. Stephens . . 86 Stocker v. Wedderbnm . . 26 xu TABLE OF CASES. PAOS Stnrge v. Starge 40 Stnrgig «. QhampneyB . . 67 Styles «. Gny .. .. 7 Sweet V. Mangham . . . . 154 T. Talbot (Earl) v. Scott . . 109 Taylor v. Davies . . ..97 -, Ex parte .. ..76 Thomas «. Hnnt .. ..212 ■». Welch .. ..232 Thompson V. James. . .. 200 Tomson V. tTndge . . . . 41 Trower v. Newcome . . . . 26' Tnllett V. Armstrong ■ ■ 52 Tamer v. Spooner . . . . 96 U. XTnwin v. Heath . . . . 213 Upman v. Elkann . . . . 178 V. Vaughan v. Vanderstegen W. Walker v. Brewster . . Wallingham v. Dale Walter v. Self e Wangh V. Caiver . . Webster v. Dillon . . Westbrook, In re Whittaker v. Howe . . Wilkinson v. Wilkinson Williams v. Davies . . Wills V. Sayers Wood V. Boosey Wright V. ETancock . . Yates V. Jack Young ■». Femie .. 133 .. 40 .. 199 181, 136 .. 74 23,24 .. 10 .. 97 .. 10 .. 101 .. 51 161, 162 .. 233 .. 141 201, 202 POEMS OF CLAIMS AND DEFENCES INTUi: OFTHB HIGH COUET OF JUSTICE. Sect. I.— TRUSTS. No. 1. — Action to establish a Trust on the Language of a Deed. (See Liddard v. Liddard, 28 Beav. 266.) [Title.] In the High Court of Justice. •■ Chancery DiTision. Vice Chancellor (a). Writ issued the day of the month of ,1876. Between A. B. and C Plaintiffs, and D Defendant. Statement of Claim. 1. W. had four children only, viz., the above-named plain- tiffs and the defendant. 2. The said W. executed in the year a deed, by which he assigned certain leasehold property to trustees, icpon trust ior himself for life, and after his death upon trust, (until his eldest (a) Or Master of the EoUs. D. / B 2 FOEMS OF CLAIMS AND DEFENCES. son D., the defendant, should attain the age of twenty-one), to pay the rents, issues and profits to his, the settlor's, widow, for the maintenance of herself, and for the maintenance and education of the defendant and the plaintiflFs, and of any future bom children of the settlor. 3. By the said deed it was further declai-ed, that if and when the defendant D. should attain the age of twenty^one years, the said leaseholds should be held' in trust for the said defendant, and should be assigned accordingly, but so that the wish and desire of him the settlor, thereby expressed and declared by him, that the plaintiffs and any fiiture bom children of him the settlor and the settlor's wife, " might be allowed by the defendant D. to participate with him in the same,'' should be particularly observed and attended to by the defendant D. 4. W., the said settlor, died on the day of , in the year , and his said wife died on the day of ,, in the year . The defendant attained his age of twenty- one years on the day of , in the year , and the trustees of the said settled premises, shortly afterwards conveyed the said premises to the defendant, " subject to the right, if any, of the plaintiffs to participate therein." 5. The plaintiffs contend that they are entitled to share the said settled premises equally with the defendant ; and that the defendant is a trustee for the plaintiffs of their respective shares ; but the defendant refuses to make any such division> and insists thait he is absolutely entitled for his own use and benefit, to the whole of the said premises. The plaintiffs claim as follows:— 1. That it may be declared, that upon the tme constmc- tion of the aforesaid deed made by the said W., the plaintiffs and the defendant are tenants in common of the premises comprised in the said deed in equal shares ; and that the Court will be pleased to give such directions accordingly, as totheConi-t shall seem fit and proper. 2. Such farther or other relief as the nature of this case may require. TRUSTS. 3 [Title, as in p, 1.] Statement op Defence. 1. The defendant admits the truth of the statements con- tained in paragraphs 1, 2, 3 and 4 of the plaintiffs' claim. 2. The defendant submits and insists, that upon the true construction of the deed referredTto in the plaintiffs' claim, and made by the said W., he the defendant is absolutely entitled for his own sole use and benefit, to the premises in the said deed referred to ; and |hat the plaintiffs have not, nor has either of them, any legal, equitable, or other right or title thereto (6). No. 2. — Action to establish a Trust created hy Parol. (See Crabb ». Crabb, X Myl. Sc K. 511.) [Title.] Between A Plaintiff, and Q., D., E. and X Defendants. Statement op Claim. 1. The father of the plaintiff (hereinafter called the tes- tator) by his will, made and executed on the day of , in the year , bequeathed all his property to the plaintiff and to the testator's three daughters, the defendants C, D. and E., in manner therein mentioned. Some years after- wards, viz., in the year , the testator transferred (in the month of February of the said year) a sum of 10,000^. 3 per Cent. Consols, (forming part of a large sum of like stock stand- ing in the testator's name) into the joint names of the plaintiff and of the defendant X., one of the partners in the banking firm of X. & Co., who were then and from thence down to the time of the testator's death, the bankers as well of the tes- tator, as of the plaintiff. (J) In this case it seems unnecessary for the plaintiffs to reply, as the question ia purely a question of law on the construction of a deed. b2 4 FORMS OF CLAIMS AND DEFENCES. 2. In the month of July of the said year the testator had an interview with the said X., and verbally directed that the half-yearly dividends upon the said 10,000?. stock (which had then been recently received by and carried to the account of the testator) should be transferred to the account of the plaintiff, and that the future dividends should be placed to the same account. This was done, and under the authority of the said verbal direction of the testator, the said dividends were regularly received by the plaintiff during the life of the testator ; but no further or other intimation of the intention of the testator in transfen-ing the said stock in manner aforesaid, was made by the testator, nor was any direct and specific decla- ration of trust as to the said stock, made by him. 3. years later, on the 19th of July, the testator made two codicils to his will, by one of which, after giving certain pecuniary legacies to his daughters, the testator bequeathed the residue of his fortune to the plaintiff for life (with certain remainders oyer, in the said codicil -described), and appointed his son the plaintiff, and the said X. his executors. The other codicil began with" the following words : — " I have appointed A. (the plaintiff) and X. my executors to my last will in a codicil made this day, viz., that I have made in the 3 per Cent. Consols an account in the ijames of A. (the said plaintiff) and of X., that is, for 10,000Z. consols, and I also desire that .my executors sell my East India as well as my BanJc Stock, to be placed in the consols, for and on account of my son (the plaintiff) and family." At the time when the said two codicils were executed, the plaintiff was a widower, upwards of forty yeai-s old. The plaintiff's said father, the testator, died in the year 4. The plaintiff submits to the Court that, having regard to the facts hereinbefore stated, and having regard in particular to the verlal direction given (as hereinbefore stated) by the testator to the said X., and to the subsequent conduct of the testator hereinbefore stated in respect of future dividends on the said stock ; the said 10,000Z. 3 per Cent. Consols were intended by the testator as a gift in the natui-e of an advance- ment, to the plaintiff; and that the plaintiff is entitled thereto TRUSTS. 5 in addition to the other gifts in favoiu- of the plaintiff, made by the said testator's said will and codicils. The plaintiff claims as follows : — 1. That the Com-t will be pleased to declare, that the plaintiff is absolutely entitled to the said sum of lOjOOOZ. 3 per Cent. Consols as a gift or advance-- ment made to him by the testator^ in addition to the other bequests to the plaintiff; and to declare that the said stock is held by the executors and trustees of the testator's will, in trust for the plaintiff abso- lutely ; and that the Com-t will be pleased to decree accordingly. 2. Such further or other, &c. [Title.j Statement of Dbpencb op C, D. asd E. 1. These defendants admit the truth of the facts stated in' paragraphs 1, 2 and 3 of the plaintiff's claim; and upon that statement of facts, they the defendants, submit to the Court,, firstly: that the transfer of the said sum of 10,000Z. 3 per Cent.. Consols, and the subsequent dealings therewith by the testator set forth in the claim of the plaintiff, did not operate as a gift or advancement to the plaintiff; and, secondly, that if the- Com-t shall be of opinion that the said sum is a gift or in the: nature of advancement to the plaintiff; then that, upon the true construction of the testator's second codicil, the plamtiff ought to be put to his election between the said sum of 10,000Z. stock, and the benefits given to him under the testator's second codicil (c). (c) No reply seems here necessary, as the question is one of pure construction. Nor does it seem necessary for the defendant X. to file any defence, unless the plaintiff expressly requires it ; as X., being a trustee, would merely submit all questions to the court. 6 XOTE ON THE LAW OP TRUSTS. Note. — A trust is created, where either real or personal estate is vested in one or more person or persons, not for the use and benefit of that person or those persons ; but to be held as trustees, on trust for some other person or persons, who are intended to have the heneficiaj. enjoyment of the trust pro- perty. The trustees are the possessors of the legal title, for the beneficiaries (or cestuis que trust, as they are called in technical language) ; and are bound to protect that legal title, and to apply the benefits arising fi:om the trust estate, for those persons in favour of whom the trusts are declared, by the person creating the trust. As the trustees hold only the legal title, no effectual transactioil relating to the trust property, and varying its status, can in general be effective without the concurrence of the beneficiaries ; except under express powers given in the instrument cre- ating the trust. At the common law, the only title recognized (before the passing of the Judicature Acts) was that of the trustee; so that if a trustee misapplied the trust property, there was no remedy at common law for the beneficiaries, and they had to seek their remedy in the Courts of Equity((Z). Those Courts, on (^ By the Judicature Acts, concurrent juriEdiction at law and in equity is given to all the Courts of the " High Court of Justice." (See sects. 24 and 25 of the Act of 1873, and in particular art. 7 of sect. 24, and art. 11 of sect. 25.) But hy art. 3 of sect. 34 of the Act of 1873, " the execution of trusts" is assigned to the "Chancery Division" of the "Hieh Court." ^ The result seems to be, that to compel execution of «• trust, the NOTE ON THE LAW OF TEUSTS; 7 the contrary, though recognizing the legal title for all legitimate and necessary purposes, hold the trustee's conscience to be so affected by the trusts, that they require from him strict compliance with the trusts, and compel their execution. And they go forther; they require every trustee, not to permit any co-trustee to commit a breach of trust, either knowingly or by culpable negligence (e). Trustees are held strictly to the powers given to them by the deed or other instrument under which they act. They must In general do neither more nor less than they are empowered or directed to do. To this rule there are, however, a few exceptions; if, for instance, the trust property consists of land and buildings, and there is no express power given to the trustees to repair out of any of the trust funds, it would be lawfiil for them, and in fact their duty, to apply some portion of the trust funds to make necessary and reasonable repairs. But they could not go further without breach of trust (/). Trusts are usually divided into three classes — 1. Express trusts, where the trusts are definitely described in a written instrument. 2. Implied trusts, where the trust, though not action ought to be still commenced and carried through a Court of the Cha/ncery DvcisUm, and there dealt with as it would have been, before the Judicature Acts. But if in any action brought in a Court of the Common Law Division, a question were to arise as to the conduct of a party, being a trustee, it is apprehended that the ■Court would be hound to apply to such conduct, equitable rules. (fi) See Styles v. Gwy, 1 Mil. & Gord. 422; Candler v. Tillett, 22 Beav. 257. And see Lewin on Trusts, cap. 13. (/) Attorney- General t. Geary, 3 Mer. 613; and Bridge v. Mronn, 2 Y. & Col. Eq. 181. 8 NOTE ON THE LAW OF TRUSTS, expressly declared, can be implied or collected from the language of a written instrument. 3. Constructive trusts, where the law casts a trust on a person, neither expressly nor impliedly constituted a trustee. If a testator says, « I give and bequeath all my estate to A. and B. upon trust to pay the income to M.," that is an express trust. If he were to say, « I give to my wife 500?., and it is my will and desire that she shall dispose of the same among her relations as she, by will, may think proper;" that has been held to create an implied trust for the wife's relations {g). So, a direction in a deed to trustees, to assign leasehold estate to the settlor's son on his attaining the age of twenty-one ; where the settlor went on to ^ay, " that he wished and intended that his other children might be allowed by the son to participate with him in the same," that was held to imply a trust in favour of the other children with the son {h). A constructive trust is, for instance, where there is an express and positive trust created, and the trustee does some act in relation to the trust estate, which would apparently give him a beneficial interest. Thus if A., a trustee of leasehold estate, obtains a renewal of the lease in his own name, purporting on , the face of it to be for his own benefit, he would be held in equity, to be a mere trustee of the new lease, for the parties entitled beneficially to the old lease. {g) Forbes v. Ball, 3 Mer. 437. (7t) lAddard v. lAddard, 28 BeaT.'266. See rorm No. 1. NOTE ON THE LAW OF TRUSTS. 9 So, a constructive trust may be created by tlie particular relation between the parties. Thus, part- ners are (in the absence of express stipulation to the conti-ary) trustees for each other in equity, as regards the: partnership affairs; and no partner can make a private and exclusive benefit for himself, out of the partnership business (i). As a general rule, trustees have no equitable powers, beyond those which are given to them by the instrument creating the trust. For instance, if there are buildings, part of the trust property, and there is no power given in the trust deed to the trustees to repair, it would be a breach of trust to raise money upon the other parts of the estate for repairs, even though not t dant B. obtained his discharge.' 4. The plaintiff has repeatedly applied to the defendant C. to pay to the plaintiff the amounts due to him upon the said bills and promissory note, but the said defendant C. has refused, and still refuses, to make such payment to the plaintiff. The plaintiff clahns as follows : — 1. That the Court will be pleased to declare that the plaintiff is entitled to have the separate estate afore- said of the defendant C. applied in payment of his, the plaintiff's claim, for the said sums of 200/., 80?., and 700?., with interest thereon at bl. per cent, per annum from the time when the said several sums ought to have been paid. 2. That for the above purpose the defendant Dl may be MAEEIED women's SEPAEATE ESTATE, ETC. 47 directed to pay to the plaintiff the said sums and interest, out of the moneys vested in him as trustee of the settlement hereinbefore referred to if the said moneys shall be sufficient ; and if the said moneys shall be insufficient, then that the deficiency may be raised and paid to the plaintiff, by sale or otherwise, out of the freehold estate of the defendant C. com- prised in and affected by the said settlement. 3. Such further and other relief, &e. [Title.] Statement op Defekce op the Defbndakts B. and C. 1. The defendant B. admits the truth of all the statements of the plaintiff in his statement of claim. The defendant B. has no pecuniary means ■whatever, to meet the demand of the plaintiff in respect of the said bills and promissory note. 2. The defendant C. admits also the truth of the several statements of fact, set forth in the plaintiff's statement of claim; but the defendant submits to the Court, that in pouit of law the debt and liability originally contracted and incm-red by the defendant C. in respect of the said bills and promissory note were legal debts, and that on her marriage with the de- fendant B., such debts became the legal debts of her said husband, and were dischai-ged by the bankruptcy and dis- charge of her said husband. And the defendant C. submits that upon the aforesaid ground, and other grounds of law, she is not liable to pay the claim of the plaintiff out of her separate estate (6). (J) As in a case of this kind, the trustee would of course take no part in the question, but simply submit himself to the direction of the comrt, it seems unnecessary for him to file any defence, unless the plaindS expressly requires him to answer. And as the question raised by the defence of the married woman, is purely a question of law, no replication seems requisite. 48 FOKMS OP CLAIMS AND DEFENCES. No. 12. — Married Woman's Equity for a Settlement. (See Green ■». Otto, 1 Sim. & St. 250.) [Title.] Between A. and B. . , Plaintiffs, and C. and D. and S. M. . . Defendants. Statement op Claim. I.Mary died in the year , having by her will bequeathed to the defendants C. and D. the sum of 4,000?., upon trust, to pay the income thereof to X. for life, and after the death of the said X. to pay 3,000Z., part of the said sum of 4,000?., to the defendant S. ,M., the niece of the testq,trix and wife of J. M., to become hers absolutely. In the month of , in the year , the said J. M. became bankrupt, and the plaintiffs were appointed and now are the assignees of the estate of the said J. M. 2. In the following year X., the aforesaid tenant for life of the said sum of 4,000Z., died. 3. The plaintifl^s have made frequent applications to the defendants C. and D. to transfer to them the said sum of 3,000?., as part of the estate of the said bankrupt J. M ; but they refuse to do so, alleging, as the fact is, that the defendant S. M. claims to be entitled to the said sum of 3,O00Z. as and for her absolute property, free from the debts and control of her said husband the said bankrupt. 4. The plaintiffs submit to the court that the defendant S. M. is not entitled to claim the said sum of 3,000?. as her property, and that the said sum forms part of the estate of the said bankrupt J. M., and ought to be paid by the defen- dants C. and D. to the plaintiffs, as part of the estate of the said bankrupt. The defendant S. M. is well and sufiSciently provided for under the will of the said X., who by her wiU bequeathed to the said S. M., as and for her separate estate, the residue of the estate of her the said X, exceeding in amount or value 3,000?. The plaintiffs claim as follows : — 1. That it may be declared that the said sum of 3,000?. MAEEIED women's SEPARATE ESTATE, ETC. 49 bequeathed as aforesaid to the defendant S. M. by the testatrix Mary , forms part of the estate of the said banki-upt J. M., and that the defendants C. and D. may be ordered to pay the said sum into the hands of the plaintiffs, to be by them applied in due course in the matter of the bankruptcy of the said J. M. 2. Such further or other relief, &c. [Title.] Statement op Defence op the Dependant S. M. ' 1. This defendant denies that she has an adequate provision imder the will of the said X. The provision made by the will of the said X. for this defendant, does not amount to more than 2,000Z., and her whole income, including the income arising from the 3,0001. bequeathed to her by the said Mary , does not exceed 170Z. per annum. 2. The defendant submits to the Court that, having regard to the language of the will of the said Mary , the defen- dant is entitled to the said sum of 3,000Z. as and for her sepa- rate estate, and that the said sum is free from the debts of her said husband. 3. This defendant saith further, that on her marriage with her said husband she was entitled to a sum of 1,500Z. 31. per Cent. Stock, which was transferred to her said husband on her marriage, and no settlement was made upon her this defen- dant, and no provision was made for her out of the said sum of 1,5001. stock by her said husband. The whole of the said sum was wasted by her said husband, and this defendant submits to the Court, that even if the Court shall be of opinion that the said sum of 3,0OOZ. became vested under the will of the said X. in this defendant's said husband, then that, having regard to all the circumstances hereinbefore stated, this defendant is entitled to have the whole or the greater part of the said sum of 3,000Z. settled upon her for her maintenance. Eeply. The plaintiff joins issue, &e. (c). (c) The defence of the trustees will be merely to submit all the questions to the opinion and direction of the court. D. D 50 NOTE ON MAKRIED WOMEN'S SEPAKATE ESTATE. The doctrines of the " separate estate of a married woman" and her "equity for a settlement" are ex- clusively doctrines established by equity. . As to separate estate, the doctrine is quite settled, that equity recognizes the validity of a trust of pro- perty (whether real or personal estate) for the "separate use" of a married woman; and also that a restraint upon anticipation or alienation by the married woman, of her separate estate during cover- ture, is valid, whether the trust is of the corpus of the estate, or only of an estate for life. In respect of any interest thus limited in trust for a married woman, the Courts of equity treat her as a feme sole, to the extent of her interest; and protect her against any claim by her husband, upon the estate or interest so settled. If there is no clause of restraint upon anticipation or alienation in the deed creating the trust, the married woman may in equity alienate her separate estate, or charge or incumber it, exactly as if she were a feme sole; and her contract in respect of her separate estate would be binding upon her in equity. But if there is in the instrument creating the separate estate, a clause (most usually inserted in marriage settlements, or wills creating separate estate) to the effect, that the married woman shall have no power to alienate, charge or otherwise incumber her separate estate, and that her receipt and no other receipt shall be a discharge to the trustees; such a clause wiU be supported and enforced by Courts of equity. For instance, if the trustees under a settlement of the NOTE ON MAEEIED WOMEN'S SEPARATE ESTATE. 51 \ Mnd referred to, were to pay the wife's s^arate estate into the husband's hands upon his re'ceipt ajone ; they would be committing a breach of trust, and the married woman might sustain an action against them for payment of the money to her. In order to constitute separate estate by any written instrument, the language must be such as to show a clear intention, either by actual words or by unavoidable implication, to exclude the husband's common law right. The words in a will, " to or for her own use and benefit and at her own disposal," will create separate estate {d). So wiU the words, " for her sple and separate use," or, "for her own use and benefit, independent of any other person "(e). But the words, " to be paid to A. (the wife) to and for her use," or, " into her proper hands for her own use and benefit," or, " not to be charged or assigned," have been held insufficient to create a trust for a married woman's separate use (_/). The distinctions, however, as to what language will, and what will not create Separate estate, are rather fine. In Ex parte Ray, Re Ray {g), a settlement (on a lady's marriage) of her property, was "for her own sole use, benefit and disposition;" that was held to create a separate estate. In Wills v. Sayers (Ji), (J£) Pritohard v. Ames, 1 Turner & Buss. 222. (e) Margetti v. Barringer, 7 Sim. 482. (/) See Bright on Husband and Wife, Book III., chap. 1, sects. 1, 2. (^) 1 Mad. 199. (Ji) i Mad. 409. d2 52 3SrOTE ON MARRIED WOMEN'S SEPAEATE ESTATE. the testator, in a residuary bequest to his daughter, gave it to her "for her own use and benefit;" he had also, in a previous part of the wUl, given a legacy to a trustee for his daughter, ^'for her sole and separate use and benefit." The Court held that the gift of the residue did not go to the daughter's separate use, as the testator showed by the language used in the bequest of the legacy, that he knew the force of the words excluding in legal construction the hus- band's marital right; and therefore that no intention could be attributed to the testator, to exclude the husband's right by looser words. In Hartley v. Hurle (i), the testator directed the trustees (after malsing certain gifts) to pay certain rents, issues and profits "into the proper hands of his daughter;" that was held to create separate estate. If a settlement is made to the separate use of a woman unmarried (when the settlement comes into operation), with a prohibition against anticipation; she may, while sole, anticipate, notwithstanding the clause against anticijpation ; but if she marries with- out having anticipated, the restriction wiU fasten on the settlement and operate, upon her marriage (A). And if there is a settlement creating separate estate, with a restriction upon anticipation, and the wife becomes discoverte, -mihovLt having disposed of her separate estate, and then marries again, the clause of separate estate without power of anticipation, attaches upon her second marriage (I). But it is (») 5 Ves. 540, and see p. 545. (ft) Tullett V. ArviMrong, i Myl. & Cr. 390. (Q IMlett V. Armstrong and Mcmhes v. SvMaoh, 11 L. B., Eq. 6. NOTE ON MAEEIED WOMEN'S SEPAEATE ESTATE. 33 otherwise, if, ia the settlement, the separate estate clause is confined to the particular marriage (m). If a married woman, having separate estate, enters; into a pecuniary engagement, which, if she were a feme sole, would constitute her a debtor, and she purports, on entering into, such engagement, to do so, not for her husband, but for herself, and on the understanding that her separate estate shall be re- sponsible; that constitutes an obligation, iox which the person with whom she contracts, has the right to make her separate, estate liable, and such a contract need not be in writing (n). If a married womaii, being indebted at the time of her marriage, takes Separate estate' under her marriage settlement, and the husband dies, or be- comes bankrupt; then, though the ;wife's. personal liability was gone at common law, her separate estate would be liable; in eqviity for her debts con- tracted before her marriage (p). Where there is a settlement on a married woman, for her separate use for her life, and with a power to appoint the fund at her death, either by deed or by , will ; her separate property so appointed is not liable, after her death, to her debts; for her appointment cannot render her separate estate liable for her debts (^). (to) Benson v. Benson, 6 Sim. 126; Bradley v. SugJtes, 8 Sim. 149. See also Re Gaffee's Settlement, 7 Hare, 101. (ra) .Mrs. Matthewman's case, 3 L. R., Eq. 781, 787. See also Johnson V. QallagTier, 3 De G., F. & J. 494 ; YoMglwrn, v. Ytm- dergtegen, 2 Drew. 363. (o) Chul>b T. Stretch, 9 L. R., Bq. 66Sj and see the cases there referred to. (^) Vmighan v. Vanderstegeti, 2 Drew. 165; Shattoch v. Shat- tock, 2 L R., Bq. 182. 54 NOTE ON MARRIED WOMEN'S SEPARATE ESTATE. It is quite settled, that no actual contract in writing, is requisite to charge a married woman's separate estate with her debts (q). The right of a married woman to what is termed an equity for a settlement, stands upon grounds con- siderably differing from the ground on which the doctrine of separate estate is based. The right of a married woman to an equity for a settlement, is not only a pure creation of equity, and an absolute defiance of the doctrines of the common- law; but it is one of the heads of equity jurisdiction, in which the discretionary/ power of equity, is used to the largest extent. A married woman's equity for a settlement arises in this way: if any right to property, either real or personal, accrues to a married woman ; of which pro- perty, the husband (who would at law have, as to personal property, an absolute and complete title, and as to real estate, a qualified title) cannot obtain possession without coming into a Court of equity for assistance; there, the Court of equity will not, in general, assist the husband, except upon the terms of his making some provision out of the property, for his wife and children. Thus, if a testator gives a legacy to a married woman, or if she becomes entitied imder an in- testacy, to personal property, and the property falls under the administrative jurisdiction of equity ; then the Court will take care to require such a settlement to be made on the wife and children, as the Court (j) See per Kindersley, V.-C, in Mattliemman's ease, 3 L. E., Eq. 787. NOTE ON MAEPvIED WOMEN S SEPARATE ESTATE. 55 shall consider (having regard to the position of the parties) a reasonable and ppper provision ; and the same rule or doctriae applies where the property is real estate. If the property accruing to a married woman in any way, can be obtained at law by the husband to the extent of his legal right ; or if he can obtain it without going to a Court of law (as ia the case of an executor being willing to pay a married woman's legacy to her husband); then the jurisdiction of equity does not arise. But if the property once comes within the jurisdiction of a Court of eqiiity (as in the case of a suit to administer the estate of a testator) ; then that Court will have, and according to the circumstances, will exercise its power to require a settlement of part of the fund coming to the married woman, upon her and her children. The exercise of this peculiar jurisdiction is so entirely a matter in the discretion of the Court, that hardly any general rule can be stated in reference to it, and the authorities are the only guide on whicTi the practitioner can rely with safety. A reference to a few selected cases on this subject will, therefore, be useful to the reader. In a case where the husband had received 1,500/. of the vdfe's property on his marriage, and no settle- ment was made on the wife, and the husband had been guilty of misconduct towards his wife, and became bankrupt ; then, on a legacy of 3,000Z. being left to trustees for the wife, the trustees refused to pay the legacy to the husband's assignees, and the Court directed a reference to the master to approve 56 NOTE ON MARRIED WOMEN'S SEPARATE ESTATE. a proper settlement; with a direction that regard should be had to the extent of the wife's fortune, and to any settlement which might abeady have been made upon her (»■). The mere filing of a biU in Chancery, has been held not to complete a married woman's equity for a settlement. Where the married woman dies before any final direction has been given by the Court, the question cannot arise as regards children, for they can claim only through the mother ; and if she dies without completely exercising her right, it is gone, and does not attach on the children. Where the husband deserted his wife, and lived with another woman, alleging misconduct on the part of his wife, and the evidence tended rather to rebut that charge ; the Court allowed a settlement of three-fourths of a legacy left to the wife, giving the husband the remaining one-fourth (s). A married woman to whom property is left, may deprive herself by her own acts, of her right to a settlement ; as, for instance, where the wife joins with her husband in doing acts which vest the estate in a stranger (t). There is no positive rule as to the proportion of property left to a married woman, and coming vrithin the jurisdiction of the Court, that wiH be settled; that is entirely in the discretion of the Court ; and • the Court takes into account the provision, if any. (r) Green v. Otte, 1 Sim. & St. 250. And see Lady Mibanh V. Mohtolieu, 5 Ves. 737. («) Coster T. Coster, 9 Sim. 597. (*) Ma/y y. Roper, 4 Sim. 360. NOTE ON JIAEKIED WOMEN'S SEPARATE ESTATE. 57 already made on the "wife and children, and also the pecuniary position and the conduct of the husband ; and the settlement so directed by the Court, will be large or small, according to the circumstances. The writer is not, however, apprised of any case in which the lohole of a fimd coming to a married woman, has been directed to be settled on her and her children, except by consent of the husband (m). («) For further information on this subject see Stwgis v. Champneys, 5 Myl. & Cr. 97; Hanson v. Keating, 4 Hare, If and Bright on Husband and Wife, toI. i., chap. 14, p. 230 et seq. j d5 58 FORMS OP CLAIMS AND DEFENCES, Sect. V.— NOTICE. No. 13. — Notice. (See Greenwood v. Bairotow, 5 L. J., N. S. 179.) [Title.] , . Between A Plaintiff, and B. . . i Defendant. Statement op Claiu. 1. The defendant holds his farm at , in the county of , under the plaintiff, as tenant of the plaintiff. 2. According to the custom of the said county, no tenant is allowed, without the express consent of and licence from his landlord, to mow or cut the grass from off the old pasture lands; or to sell or remove any grass, hay, or straw grown upon the said lands, to he consumed off the said lands; or to sell or carry off the said farm and lands any manure, dung, or compost. And according to the said custom, the tenant is hound to cultivate and manage his farm and land in a husband- like manner, and to feed all the old pasture lands and not to mow the same ; and to consume and use upon his farm, all the grass, hay and straw grown thereon, and to spread and use upon his farm and lands, all the manure, dung and compost made thereon. 3. The defendant has, in respect of the farm held by him as aforesaid, acted and continues to act in direct contravention of the said custom in all respects ; mowing and cutting grass from off the old pasture lands ; selling and removing grass hay and straw, grown upon the said lands, to be consumed off such lands ; and selling from off the said lands, manure, dung, and compost, to the detriment and damage of the plaintiff. The plaintiff claims as follows : — 1. That the defendant may be ordered by the decree of NOTICE. 59 the Court to cultivate and manage his farm according to the aforesaid custom of the said county. 2. That an account may be taken of the damage and pecuniary loss occasioned to the plaintiff, by the de- fendant's dealing as aforesaid with the said farm and the produce thereof; and that the defendant may be ordered to pay the amount of such damage to the plaintiff, the plaintiff hereby waiving all penalties. 3. An injunction restraining the defendant from further continuing to cultivate and manage the said farm, otherwise than according to the aforesaid custom of the said county. , 4. Such further or other, &c. • [Title.] Statement of Depence. 1. The plaintiff became owner of 'the farm referred to in the plaintiff's claim, by purchase thereof in the year from X., then the owner thereof. 2. For many years before the date of the said purchase, the defendant held the said farm as tenant from year to year, under X. When the defendant first entered upon and took possession of the said farm under the said X., he was informed by the steward of the said X. that, provided he duly paid his rent, he should never be disturbed in the possession or management of the said farm ; and was expressly told by the said steward, that he the defendant, might manage the land as he thought proper. 3. At the time when the defendant first took the said land from X., a great part thereof was common and waste land, and the defendant converted such land into pasture and grass land ; and during the defendant's occupation of the said land, the defendant mowed the grass land and sold and disposed of the crops as he thought fit, with the knowledge of X. ; and the defendant was never interfered with by X., although X. was well aware of the defendant's course of dealing with the land. 4. Relying upon the licence given to the defendant by X. 60 FOEMS OF CLAIMS AND DEFENCES. while X. was the defendant's landlord in respect of the said land, the defendant has expended more than in sub- stantial and lasting improvements of the said land and ferm. The plaintiff has not given to the defendant, any proper and regular notice to give up the said farm. 5. The defendant submits to the Court that, having regard to the facts stated herein, the plaintiff on purchasing the said land from X. had notice of the terms under which the said land was held by the defendant, and is bound by such notice not to interfere with the defendant's mode of dealing with such land. Eeplt. The plaintiff joins issue with the defendant upon his defence. No. 14. — Notice. (See Jennings v. Bronghton, 17 Bear. 234; and on Appeal, 5 De G., M'N. & Gord. 126.) [Title.] Between A. B Plaintiff, and C. D. and E. F. .... Defendants. Statement op Claim. 1. In the year the defendants were the projectors of the mining company, and are now the lessees of the lead mine held by the said company at , holding under X., the proprietor of the said mine. 2. In the early part of the year the defendants obtained what is called a "take note" from X, and employed, an engineer to inspect and report on the said mine. The said engineer made in April of the aforesaid year, a favourable report of the said mine. 3. The defendants acted to some extent upon the said jreport of the said engineer, and began, after employing work- men to clear out the levels, to drive a level as recommended by the said engineer. NOTICE. 61 4. In the month of June of the said year the defendants, obtained from X. a lease for twenty-one years, and they then, proceeded to issue prospectuses for the formation of a com-, pany to work the said mine ; for which pui-pose they obtained, fi'om Z., a surveyor and Iiand agent, a report upon the said, mine, and printed and circulated the report made by the said. Z. The plaintiff saw and read the said advertisement and the said report of Z., and then applied to the defendants to take shares in the said proposed company; and on the 12th of October, in the year , the plaintiff attended a meeting, for the pm"pose of settling the plan on which the proposed company was to be established ; and at the said meeting the plaintiff took 250 shares at per share, and the defendants and the said Z. took other shares, making together 960 shares. The company was intended to consist of 1,600 shareholders. The plaintiff paid the price of his shares into the hands of the defendants, as managers of the said company. 5. In November of the above-mentioned year, the plaintiff visited the said mine in company with the defendants, and examined it in the presence of the defendants and of one T., the captain of the mine, and H., one of the miners, and the said H. raised ore for the plaintiff's examination. The said defendants and the said T. and H. all spoke of the mine as being in a very promising state. The plaintiff was and is wholly ignorant of mining, and relying upon the expressed opinions of the defendants and of the said T. and H., believed the said mine to be really a good and productive mine, and upon the faith of the opinions and representations of the de^ fendants and the said T. and H., took 469 further shares, making, with his previous shares, 719 shares on the whole. 6. The plaintiff, in the month of April following, becoming doubtful whether the said mine was really a fruitful and good mine, employed an engineer to examine the said mine ; and it was afterwards examined by one engineer on behalf of the plaintiff, and another engineer on behalf of the defendants. The reports of the two said engineers were contradictory ; but the reports of the actual produce of the mine, down to the time of the institution of this action, show that the produce 62 FORMS OF CLAIMS AJJD DEFENCES. of the said mine has been very small, and that the whole con- cern is unprofitable and unsatisfactory. In fact, the said report of Z. mentioned in paragraph 4, was altogether a misrepre- sentation of the true state of the mine ; and the defendants were fully aware of that fact, and misled the plaintiOF into taking the shares aforesaid in the said mine. The plaintiff claims as follows : — 1. That it may be declared that the representations made as aforesaid by the defendants to the plaintiff as to the condition of the said mine, were unfounded and untrue ; and that such unfounded representations were made by the defendants to the plaintiff knowingly; and that the sale to the plaintiff of his said shares, may be declared null and void. 2. That the defendants may be ordered to repay to the plaintiff the amount of the moneys paid to them by the plaintiff, for his said 719 shares in the said com- pany. 3. Such further or other relief, &c. [Title.] Statemewt op Defence. 1. The defendants admit the truth of the statement made by the plaintiff in paragraph 1 to 4, both inclusive, of his claim. 2. In answer to the remainder of the plaintiff's claim, the defendants say, that they were during the course of formation of the said mining company, equally ignorant with the plaintiff of mining, and believed the said mine referred to in paragraph 1 of the plaintiff's claim, to be a good and pro- ductive mine, and did so believe on the faith of the opinion of the saidT. and H. (referred to in paragraph 5 of the plaintiff's claim), and of the exhibition of the specimen of ore produced by the said H., as in paragraph 5 of the plaintiff's claim is stated. 3. The plaintiff had throughout all the transactions relating to the said mine, all and the same means of knowledge as to the produce and prospects of the said mine, and as to every particular concerning it, as were possessed by the defendants ; NOTICE. 63 and the defendants relied as much as the plaintiff did, in taking shares, upon the faith of the report made by Z. The plaintiff, in fact, embarked in the concern of the said mine, ■with full knowledge that he was embarking in a speculation ; and with all and the same means of information that were possessed by the defendants ; and the defendants deny that they ever made any representations to the plaintiff in respect of the said mine, except such as were founded upon the means of knowledge which were possessed in common by the plain- tiff and these defendants. [Title.] ElSPLT. The plaintiff joins issue, &c. 64 NOTE ON NOTICE, PIBECT OR CONSTRUCTIVE. If a party to any transaction has direct or positive notice of any matters affecting his interest in the transaction, he is in equity bound by such notice. Thus, if A. contracts with B, to purchase B.'s estate, and has direct or positive notice or knowledge of a defect' in B.'s title; equity will not assist A. to set the contract aside on the ground of the defect, and wiU not refuse to B. specific performance of the con- tract ; for A. entered into it with his eyes open. And if A. purchases land with only constructive notice, that the land is affected by a covenant not to build upon it, he wiU be restrained by injunction from building, at the suit of the covenantor. Thus, where A. was seised in fee of .a house and a piece of land near to it, and he sold the house to B., cove- nanting that no buildings should thereafter be erected on the land; and A. then sold the land to M., and took from M. a similar covenant ; and after several mesne conveyances, the land became vested in X. in fee, and afterwards in Y., without any further cove- nant by Y. as to building on the land ; but Y. had notice of the original covenant not to build, and Y. began to build; he was restrained by injunction from continuing to build, on the ground that he had con- structive notice of the covenant (a). And in the great case of Atwood v. Small (6), (a) Mann 7. Stephens, 15 Sim. 377. (J) 6 CI. & Fin. 232. And see also Jennings v. Brouahton. 6 De G., M'N. & Gord. 126. " XOTE ON NOTICE, DIRECT OR CONSTRUCTIVE. 65 misrepresentation by the vendor (the property sold, being mines) as to the condition of the mines, was held not to release the purchaser from liability speci- fically to perform the contract ; because the purchaser had, by himself or by his agents, examined the state of the mj^es, and had, therefore, constructive notice of the vendor's misrepresentations as to their con- dition. The effect of actual or positive notice is in fact this: that a party to a contract, having actual notice of some defect in the subject-matter of the contract, is, on entering into the transaction, agreeing to take the thing contracted for, with the defect of which he has notice. But constructive notice stands upon a different ground, though the result is in general the same. Constructive notice is, where the party entering into a contract, has no actual knowledge, of a defect in the subject-matter of the contract prejudicial to him, and which would or might have induced him not to enter into the contract; but is affected by collateral circumstances, which raise a presumption of his possessing such knowledge. Thus, if A. em- ploys a solicitor in the conduct of a transaction, and his solicitor receives, in the course of the transaction, notice of any given circumstances affecting A.'s inte- rest,'but does not communicate them to A.; then A. has, constructive notice of these circumstances; because a person is presumed to know what his solicitor knows, affecting the transaction in which he employs the solicitor. And the same rule applies to counsel ; therefore it is, that in transactions relating to. pur- 66 NOTE ON NOTICE, DIKECT OE CONSTKUCTIVE. chases or mortgages of land or other property, it is always dangerous for the purchaser or mortgagee to employ the same solicitor as the vendor or mortgagor employs ; for if the solicitor acting both for a vendor and purchaser is aware of any defect in the title of the vendor, the purchaser has constructive ^notice of the defect, and must take the property -with its defect. But the knowledge of a man's solicitor, in order to affect his client with constructive notice, must be knowledge derived in or affecting the particular transaction. The principle of this sort of construc- tive notice is, that it is the duty of a solicitor to communicate his knowledge affecting the transaction to his client; and he is presumed to have done his duty. If a party enters into an agreement for an under- lease, and does not previously inquire what are the covenants in the original lease, he is affected by constructive notice as to all usual covenants con- tained in the lease (c) ; and if he purchases property in the occupation of a tenant, he has constructive notice of the terms on which the land is held {d). But, in a recent case, where there was a settlement, and the trustees of the settlement advanced the trust money on a mortgage of real estate, which was con- veyed to them by the mortgagor, the mortgage deed noticing'the trust; and afterwards the sole surviving trustee reconveyed part of the property to the mort- gagor, on payment of part of the mortgage debt, which money he, the trustee, appropriated to his (c) FligU V. Ba/ft0n,Z Myl. & K. 282. (d) Greenjwod t. Bmrstow, 5 L. J., N. S. 179. NOTE ON NOTICE, DIRECT OR CONSTEUCTIYB. 67 own use; and then the mortgagor conveyed that part of the property to new mortgagees,' concealing (with the compHcity of the trustee) both the prior mortgage and the reconveyance ; so that, in fact, the new mortgagees had no knowledge of the existence of the trusts ; there it was held, that the new mort- gagees were entitled to hold as against the cestui que trust. In other words, it was held that the new mortgagees had not, under the circumstances, con- structive notice of the trusts (e). The broad principle as to what constitutes con- structive notice is expressed very distiactly by Sir James Wigram, V.-C, in Jones v. Smith (f). His honor said in that case, " It is indeed scarcely pos- sible to declare a priori what shall be deemed con- structive notice; because, unquestionably, that which would not affect one man, may be abundantly suffi- cient to affect another. But I believe I may say, with sufficient accuracy for my present purpose, and without danger assert, that the cases on which con- structive notice has been established, resolve them- selves into two classes. First, cases where the party charged has had actual notice, that the property in dispute was iu fact charged, incumbered, or in some way affected. And the Court thereupon bound him with constructive notice of fects and instnunents, to a knowledge of which he would have been led by an inquiry after the charge, incumbrance, or other cir- (e) PilcTier v. Ramlins, 7 1/. K., App. 259. See also CaHer v. Carter, 3 liay & John. 617. (/) 1 Hare, see p. 55. ■bo NOTE ON NOTICE, DIRECT OE CONSTRUCTIVE. ■cumstances affecting the property, of wHch lie had actual notice. And, secondly, cases in wMch the Court has been satisfied frora the evidence before it, that the party charged had designedly abstained from inquiry, for the very purpose of avoiding notice." ( 69 Sect. VI.— PARTNERSHIP. No. 15. — Action for an Account between Partners. (See Burton v. 'WooUey, 6 Mad. 367.) [Title.] Between A.B. . . ■ Plaintiff, and CD Defendant. Statement op Claim. 1. Under an indenture dated the day of , in the year , made between the plaintiff of the one part and the defendant of the other part, the plaintiff and defendant entered into partnership as dealers in lapis calaminaris ; and by the said indenture it- was agreed, among other things, that the plaintiff and the defendant should equally share the profits, and equally bear the losses of their said partnership business. 2. The defendant keeps a shop near to the mines whence the said lapis calamirumsis gotten, and he has from time to time purchased, for arid on account of the partnership, considerable quantities of the said ore from the owners of the saidmines ; and has paid for such ore with his own shop goods by way of barter, instead of, paying for the same in money, and he has made profits by his said mode of dealing with the miners. 3. In his accounts with the plaintiff, the defendant has charged the partnership in respect of the said purchases, with the amount of the prices for which he has sold or bartered the said goods to the miners ; and has retained in his own hands and for his own benefit, the profits made by such sales or barters. 4. The defendant ought not to have retained such profits in his own hands, but ought to have charged the partnersliip only with the prices at which he bought the said goods, and ought to have accounted to the partnership for the profits so made by him. 70 FOEMS OF CLAIMS AND DEFENCES. The plaintiff claims : — 1. That an account may be taken of the profits made by the defendant, by or in respect of such barter as aforesaid of his said goods ; and that the profits so made by him, may be ordered to be carried to the account of the partnership. 2. Such further or other, &c. [Title.] Statement of Depbncb. 1. The defendant admits the truth of the statements in paragi-aplis 1, 2 and 3 of the plaintiff's claim. 2. Before the date of the partnership deed and down to the year , the miners were in the habit of dealing at the defendant's shop, receiving money for the lapis calaminaris which he bought of them, and paying for their shop goods bought by them, in the same manner as they would have done in dealing with any other shopkeeper. In the year and for some time afterwards, there was much distress among the miners, and they could not pay in money for the goods sold to them by the defendant ; and the defendant then commenced, and has since continued paying the miners for the lapis calaminaris bought from them, in goods fi-om his sjiop, and charging in his account with the plaintiff as for cash, to the amount of the sale price of the goods. 3. The defendant has had all the labour and responsibility of purchasing lapis calaminaris for the partnership, and submits to the Court, that he had a right to deal with the plaintiff in manner stated in the plaintiff's claim and in this his the defendant's defence. [Title.] Reply. The plaintiff joins issue on the defence, and submits to the Court that the defendant ought to have charged the plaintiff and accounted to him, in the manner stated in paragraph 4 of the plaintiff's claim, and not otherwise. NOTE ON THE LAW OF PAETNEESHIP. 71 The law of partnersHp, like the law of contract, may be said to be a mixture or combination of the doctrines and practice of the common law, and those of equity. By way of example : at common law, before the Judicature Act, 1873, a partner might have cause of action for damages., for some wrongful act of his co-partners ; but if he desired a dissolution and the taking of accounts, then an action at law was in. general an inadequate remedy, and he must have come into equity for a dissolution and accounts; or again, if a partner was departing from the terms of the partnership agreement, to the injury of his co- partners; an action for damages would or might be a very inadequate remedy, as it would not necessarily prevent fiirther breaches of the contract. But equity would ia such cases, apply its jurisdiction of granting an injunction, and would prevent a repetition of the wrongfid act (a). Or suppose such cases as that of Burton v. WoolleyQj) (more partibularly noticed j9osf, p. 77), or the case of Gardner v. M'Cuteheon (c); it is clear that in such cases there could be no adequate remedy at law, if, indeed, there could be any. But the Court of Chancery interfered in those cases, on the ground that partners are quasi trustees for each other, and bound by the (a) See Mr. Justice Lindlej;'s raluable Treatise on Partnership, p. 1053 et »eq. ih) 6 Mad. 367. (f) 4 Beav. 534. 72 NOTE ON THE LAW OF PAETNEESHIP. principles which should regulate the conduct of trustees. A partnership is the association of several persons under some agreement, to carry on business with a view to gain; on the footing that the gain shall be shared between the parties to the agreement, in such proportion as the agreement specifies. Or, as Mr. Justice Lindley states (in his treatise on the Law of Partnership), "An agreement that something shall be attempted with a view to gain, and that the gain shall be shared by the parties to the agreement, is the grand characteristic of nearly every definition of the term." One of the principal features of a partnership is, that in general (except by express agreement to the contrary), the partners shall equally share the profits, and then they are in point of law equally liable to share the losses, both as between themselves and as regards the public. But -by agreement, some of the partners may be entitled to share the profits, and at the same time may be guaranteed by the other partners against losses, and it wIU stiU be in other respects a partnership. But such an agreement can only operate as between the parties. As regards the public who deal with the partnership, or to use the legal laiiguage, "as against third. parties," all the partners are liable for losses. Thus, for Instance, If A. and B. enter into partnership, with an agree- ment that A. alone shall be liable for losses, then, though If losses are incurred, A. would be bound to indemnify. B. agaiast them ; still, if a debt to C, a stranger, is incurred by the partnership, and A. could NOTE ON THE LAW OF PAETNEESHIP. 73 not pay the whole of the debt, B. would be liable to C; for the difference, though A. would remain liable over, to B. to recoup him. It is not necessary for constituting a partnership, that the words partner or partnership should appear on the face of the agreement. A mere agreement to carry on an undertaking, and to share the profits, and the losses or risks, will constitute a partner- ship (d). But whether an agreement actually has the effect of constituting a partnership or not, depends upon whether the language of it shows an intention to constitute a partnership. Thus, before the Act of the 28 & 29 Vict. c. 86 (an Act to amend the Law of Partnership), it was law, that if a man stipulated that as the reward of his labour he should have, not a specific interest in the business, but a given sum of money, even in proportion to a given quantum of profits, that did not make him a partner ; but if he agreed for a part of the profits as such, giving him a right to an account, though having no pro- perty in the capital, that made hirii, as to third persons, a partner (e). The distinction seems rather fine, because, if a man stipulates for a payment in proportion to a given quantum of profits, he is in substance participating in profitSc However, the law stood as above stated before the 28 & 29 Vict. c. 86. That act carries the doctrine much fiirther; for by sect. 1, lendiag (<0 Green v. Seeiley, 2 Bing. N. C. 108; Brett y. BeQkmith, 3 Jnr., N. S. 31. («) Ex parte Hamper, 17 Ves. 403. D. E 74 NOTE ON THE LAW OF PARTNERSHIP. money to a person engaged, or about to engage, in trade, upon a contract that the lender shall receive a rate of interest varying with profits, or even that the lender shall actually receive a share of the pro fits, does not, of itself, constitute the lender a partner, or render him responsible as such. And by sect. 2, a contract with any servant or agent, in any trade or undertaking, that he shall be remunerated by an actual share of the profits, does not of -itself con- stitute such servant or agent responsible as a partner, nor give him the rights of a partner. But if a man holds himself out as a partner, then, although he in reality may not be a .partner, he mil, in point of law, be liable as a partner to third per- sons (/). And if he so holds himself out as a part- ner, it is immaterial whether he has or has not any share in profits and losses. And even if it is known that he does not share either profits or losses, stiU that does not prevent him from being liable as a partner, if he has actually held himself out as a partner (g). And if A. has been induced by fi^udulent repre- sentations made to him by B. and C, to hold him- self out as a partner in the business of B. and C, he. A., wiU still be liable as a partner to persons who have been induced by his conduct to deal with him as a partner; provided, of course, that those persons had nothing to do with the firaudulent repre- sentations made by B. and C. (/^). (/) WaiigJi T. Carver, 2 H. Black. 235. See p. 2iG of the? judgment. (g) See Lindley, vol. i., p. SO, and the cases there cited. (Ji) See the cases referred to in Lindley, vol. i., p. 52. NOTE ON THE LAW OF PAKTNERSHIP. 75 , An actual partnersMp is not formed by an agree- ment between A. and B. while the partnership is only contemplated. If^ for instance, A. and B. agree to work a patent for their joint benefit, subject to this, that A. shall not become an actual partner, till the result of certain experiments shall satisfy him ; then, if A. is not sufficiently satisfied with the result of the experiments, to induce him to insist on the agreement, tiiere is no partnership (i). But persons may become, not strictly partners, but liable as such to third parties, upon the principles of the law of agency. As, for instance, if members of a committee or managers of a club, pass resolutions for work to be done, or for goods to be supplied; they will be all separately liable to pay for thq work; not because they are partners, but because, by passing the resolutions, they have separately, as well as jointly, given authority to do the work. Subject to the restrictions imposed by certain Acts of Parliament, it may be stated, in general, that the number of persons who may join and act as co-partners, is not limited. But to be capable of being a partner in a concern, a person must be of sound mind, that is, not insane ; and not under the disability of either minority, or being a convict ; and as to a woman, of being married. Thus, a person under age, though he may join a partnership, is not, while under age, liable for the debts of the concern. And when he comes of age he may, in point of law, though not in point of honour, repudiate all liability, (i) Oibornc v. Jullior, 3 Drew. 596. E 2 76 NOTE ON THE LAW OF PAETNEESHIP. and may recover back any money paid by Mm to the concern ; unless he has akeady obtained advantages under the contract of partnership, and then he must restore the advantages he has derived, before he can repudiate the contract. In other words, if he desires to get rid of his contract, he must put the other party in the same position as if no contract had ever been made (k). A married woman cannot, in general, enter into any binding contract. The exceptions to this rule are : where the husband is a convicted felon ; where the husband and wife are judicially separated ;. where the wife is protected against her husband by the Divorce Acts ; where the husband is an alien enemy and abroad ; and where she can effect an insurance on her own life, or that of her husband, for her separate use. It is presumed that a married woman, having property settled on her to her separate use, viz., free from the debts and control of her husband, might (unless expressly restrained from alienation of her income by her marriage settlement) become a partner in a business ; but this is not quite settled law. A partnership need, not necessarily be constituted by deed, or, indeed, any writing. But if the agree- ment is verbal, the terms of it must be distinctly proved, if there is any dispute about the matter. It is needless to add, however, that an agreement for partnership should always, as a matter of prudence, be in writing. And it should also be noticed that, as under the Statute of Frauds no action can be brought (A) See Goode t. Harrison, 6 B. & A, 157; Um parte Taylor, 8 De G., M'N. & Gord. 254. NOTE ON THE LAW OF PARTNERSHIP. 77 upon any contract not to be performed within a year from the making of the contract, and duly signed; a mere verbal contract for a partnership to commence at a date exceeding a year from the date of the contract would be useless, unless it has been actually acted upon. Partners are respectively agents for each other; so that the acts of one^ are binding upon the others, as regards third parties. And they are also trustees, or in the nature of trustees, for each other ; so that a partner in a concern, cannot make any private profit for himself in any transaction entered into for the concern. A strong instance of the applir cation of this principle is the case of Burton v. Woolley (referred to in Form No. 15) (f). In that case, the plaintiff and defendant were partners as dealers in lapis calaminaris. The defendant, who was a shopkeeper, and living near the mines, was by the agreement to purchase the lapis calaminaris from the miners. At first he paid for the lapis calami- naris in ready money, and the miners who dealt at his shop, paid for their shop goods as they would have done to any other shopkeeper. Afterwards he changed his mode of dealing, and instead of paying the miners for the lapis calaminaris in money, he paid them in his shop goods, and in his accounts with his partner, charged him as for cash paid to the amount of the price of the goods. The Court held, that he was bound to buy the ore (0 6 Mad. 367. 78 NOTE ON THE LAW OP PARTNERSHIP. at the lowest possible price, and to charge the part- nership with no more than he actually gave for the goods bartered for the ore; and an account was directed to ascertain the profits he had made in his barter of the goods. The ground of the decision was, that as a partner, he was' a trustee for the con- cern, and could not make any separate profit out of his dealings on behalf of the concern. Every member of a firm is bound, without any special covenant or contract, to be faithfid to his co- partners in all that relates to the business of the partnership; and to be diligent in his attention to such business; and, generally, to treat aU matters relating to the partnership, with the same care and attention that he would devote to them, if he were exclusively interested. Many partnership deeds (especially old-fashioned deeds), contain express covenants on the part of each partner with the others, to the above effect. Such clauses are, in gene;-al, quite unnecessary; as all such duties are cast upon a partner by the law, without any express covenants; on the principle above noticed, that partners become by force of the partnership con- tract, trustees or agents for each other. Every partner has a right to an account j&om his co-partners of their dealings and transactions in re- spect of the partnership business; and this right extends to the representatives of each partner; so that the executors of a deceased partner have a right to an account against.the surviving partners or their executors; and the assignees of a bankrupt partner NOTE ON THE LAW OF PARTNEESHIP, 79 have a similar right as against a solvent partner or his executors, and vice versa. In general terms, whoever has an interest in a partnership concern, has a right to an account as against the other partners, or the persons legally representing them. Every partner is bound to adhere strictly to the terms of the partnership deed or contract; and if he de- parts from them, and loss>is thereby incurred, he wiU be personally liable to the partnership to the extent of the loss incurred. For instance, if a partnership deed or agreement provided that no credit exceed- ing three months should be given, or that no biU of exchange should be taken in payment, for more than 501. and at a longer date than three months ; then if one of the partners were to give six months' credit, or were to take a bill at six months' date, and loss were incurred thereby ; the partner so giving such credit or taking such bill, would be liable to make good the loss to the partnership. To put the rule in a general form : any act done by a partner in contravention of the partnership contract, wiU, if loss is proved to arise frbm such act, render the partner so acting, liable to the part- nership for the loss, occasioned. And the rule apphes as well to the neglect of acts, which by the terms of the partnership contract ought to be done, as to the doing of acts which ought not to be done. So that, for example, if the partnership contract between A. and B. stipulates that A. shall superin- tend and manage a specific department of the busi- ness, and that B. shall manage another specific department; and then either A. or B. were to neglect 80 NOTE ON THE LAW -OF PAKTNEESHIP. his particular departanent and loss were the result ; the partner causing such loss, by neglect of his department^ would be liable for it to the partnership. If a partnership is for an indefinite term, that is : if two or more persons agree to be partners in a business, without fixing any specific term for its duration ; then any one of the partners may dissolve the partnership at his will, and without giving any reason for the dissolution; but he must give reason- able notice of his intention to his co-partners. But it is otherwise where the partnership is for a specified term. There no partnier can dissolve the partnership by a mere notice; and if he desires a dissolution, he must apply to a Court of Equity for such dissolution. But a dissolution will not be decreed as a matter of course. It must be shown that there is some good ground; such as a hopeless state of the business, or misconduct on the part of one of the ■ partners, or other circumstances, which wiU satisfy the Court, that it is beneficial, in the interest of all the parties, that there should be a dissolution. ( 81 ) Sect. VH.— ELECTION. No. 16. — Election. (See Stephens v. Stephens, 3 Drew. 697.) . [Title.] Between A Plaintiff, and B., C. and D Defendants. Statement of Claim. 1. John S. (the testator in this cause), by his -will, dated in June, 1846, devised his estate called " Hood's Farm" and all other his property in the parish of , in the county of , unto and to the use of his eldest son. A., the plaintiff, his heirs, executors, administrators and assigns, according to the nature and tenure of the said testator's property, for his, the plaintiff's, absolute use and benefit. The said testator gave all his other real estate equally to and between his other children, B., C. and D., the defendants, and he gave his per- sonal estate equally between the plaintiff and his other children, the defendants. 2. At the date of the said wiU of the testator, the said pre- mises called " Hood's Farm" were (under the limitations of the will of the testator's father) limited to William, the elder brother of the testator, for life ; with remainder to his (William's) sons in tail; remainder to the testator for life; remainder to trustees for a term of 1,000 years, for raising 10,000Z. for portions for the younger children of the testator and of his brother Charles ; remainder in tail to the testator's sons, and an ultimate remainder to the right heirs of the testator's father. 3. At the date of the said will of the said testator in this cause, the said William, the testator's eldest brother, was tenant for life of " Hood's Farm," and had no children ; and the said William died in the year 1856, leaving no children, E 5 82 FOEMS OF CLAIMS AND DEFENCES. and the plaintiff, the testator's eldest son, then succeeded to " Hood's Farm" as tenant in tail. 4. The defendants, the younger children of the testator, claim to be entitled to their proportionate shares or interest in the said sum of 10,000Z. charged as aforesaid on " Hood's Farm," and also to take their shares in the personal estate bequeathed as aforesaid by the testator. 5. The plaintiff submits to the Court that, having regard to the circumstances hereinbefore stated, it was the intention of the testator's will that the plaintiff should enjoy the property and premises called "Hood's Farm" fi:ee from all incum- brances, and that the defendants are put to their election whether to take their shares of the said 10,000Z. and to give up their claim upon the other bequests made to them by the testator, or to accept the provision so made for them by the testator, and give up their claim on the said 10,000Z. The plaintiff claims : — 1. That it may be declared that the defendants are not entitled to take the said 10,000Z. and also the other interests bequeathed to them by the testator as afore- said, but are bound to make such election as afore- said ; and that a decree may be ma'de accordingly. 2. Such further or other, &g. [Title.] Statement op Defence. 1. The defendants, admitting the truth of the allegatiojis of fact in the plaintiff's statement of claim, submit to the Court that, having regard to such facts, the intention of the testator to be collected from his will was that the said charge of 10 000?. should remain a charge upon the " Hood's Farm" estate, and that the defendants are entitled to the real estate of the tes- tator devised to them, and also to the personal estate bequeathed to them by the testator ; and that the decree of the Court ought to be to that effect (a). (a) As this case seems a pure question of law, no reply seems necessary. ELECTION-. 83 No. 17. — Election. (See Lowes «. Lowes, 5 Hare, 501.) [Title.] Between A. and B Plaintiffs, and C. and D Defendants. Statement op Claim. 1. N. L. devised and bequeathed all his real and personal estate to the plaintiffs, liis executors and trustees (subject to his debts and funeral and testamentary expenses, and the expenses incident to the management; of the trust premises), upon trust, out of the rents and profits of his said estate to raise and pay an annuity of lOOZ. per annum to his wife the defendant C. so long as she continued liis widow. Subject as, aforesaid, the testator directed his trustees to apply the rents, issues and profits of his said estate for the benefit of his daughter the defendant D., until she should attain the age of twenty-one years or marry, and that any unapplied income should be accumulated, and be liable to be applied in like manner, and, subject to such liabilities, be deemed to be aecre- "tions. The testator directed the rents, issues and profits, when his daughter should attain the age of twenty-one or marry, to be paid to her, or as she should appoint, not by charge or anticipation, for her separate use for life, with remainder to ier childrea, and in default of such children or child then for her brother, his heirs, executors, &c., for ever. 2. The said will empowered the trustees (the plaintiffs) to ■carry on all or any of the testator's farms or other concerns in which the testator might be engaged at his death, as they the said trus'ijBes should think proper, with power to enlarge or ■diminish any such concerns ; and power to demise any part of the hereditaments vested in them ; and also power to sell or , mortgage any part of his real estate, and other powers. 3. The plaintiffs state that they, have exhausted the testa- tor's personal estate in the payment of the testator's debts and of expenses, and that a considerable mortgage charge upon 84 FORMS OF CLAIMS AND DEFENCESi the testator's real estate remains still due and unpaid, and that after allowing for the payment and keeping up of the interest on the said mortgage debt, they the plaintiffs will not have available income arising from the testator's estate ex- ceeding 170Z. per annum applicable to the purposes of the testator's -will. 4. The defendant C, the testator's widow, claims her dower out of the testator's real estate, but the plaintiffs submit that, having regard to the circumstances hereinbefore stated, the defendant C. ought to be put to her election whether she will accept her dower, and relinquish her claim to the said annuity of 1001. per annum, or whether she will accept the said annuity, and relinquish her claim to dower. The plaintiffs' claim is : — 1. That the Court will be pleased to determine whether the defendant C. is or is not bound to make such election as is referred to in paragraph 4 of the plain- tiffs' claim, and to make such decree in the matter as to the Court shall seem iit and proper. [Title.] . Statement op Defence op the Defendant C. 1. The defendant admits the truth of the statement of fact made in the plaintiffs' claim, and submits to the Court that she is not, under the circumstances, bound to make such election as is referred to in paragraph 4 of the plaintiffs' claim, and is entitled to her dower and to the annuity be- queathed to her by the testator's will. NOTE ON ELECTION. 85 The doctrine of election is one of the most striking instances of one of the broad principles of equity; that it will not, in any matter coming within its grasp, suffer acts or results which would be con- trary to conscience. Mr. Swanston thus states the doctrine : — " The foundation of the equitable doc- trine of election, is the intention, explicit or presumed, of the author of the instrument to which it is applied, and such is the import of the expressions by which it is described as proceeding, sometimes on a tacit, implied, or constructive condition; sometimes on Equity. From this principle, the whole doctrine, •with its distinctions and exceptions is deduced." And in another part of the same note, Mr. Swanston ^ says, " The doctrine of election originates in incon- sistent or alternative donations ; a plurality of gifts, with intention express or implied, that one shall be a substitute for the rest. In the judgment of tribunals, therefore, whose decision is regulated by that intention, the donee will be entitled, not to both benefits, but to the choice of either. The second gift is designed to be effective, only in the event of his declining the first. And the substance of the gifts combined is an option" (J). And in the case of Stephens v. Stephens (*), Kindersley, V.-C, thus lucidly states the doctrine: " That if a person has an interest in a certain pro- (J) See Mr. Swanston's note to Dillon v. Parker, 1 Sw., notes pp. 101, 394, and the cases there referred to. (c) 3 Drewiy, 697. 86 NOTE ON ELECTION. perty, and a testator has disposed of tliat property, wMch lie had no right to do, and gives benefits by his will to the same person; that person cannot take the property which the testator had no right to dispose oj^ and so defeat the testator's intention as to that property, without giving up the benefits given to him by the will. If he takes the benefits given to him by the will, he must give up any interest which he has, the taking of which would defeat the testator's disposition" (d). It has long been settled as a general rule since the case of Nbi/s v. Mordaunt (e), that where a man does by wiU. more than he has strictly a right to do, and gives a bounty to the person to whose prejudice that is done, the person prejudiced by one part shall not insist upon his right, and at the same time upon the bounty given by the wiU, And in Lord Rancliffe v. Parkyns (y). Lord Eldon, in delivering the judgment of the House of Lords, said : — " If I choose to devise my real estate to the noble Marquis opposite (I put it in that way because the illustration will make it more familiar) (g), and in the same will I dispose of an estate which is not mine, but his ; a Court of Equity will say that he shall take no benefit fi:om that will, unless he makes good the whole of the wiR ; and the noble Marquis would not take, therefore, unless he allows id) Pages 701 and 702 of tho Eeport. (c) 2 Vernon, 581. (/) 6 Dow, H. L. Cas. 149. ((/) See p. 179 of the Eeport. At the time when the judgment was delivered, the judicial functions of the House of Lords, appear to have been centred in Iiord Bldon alone. NOTE ON ELECTION. 87 the whole of the will to be effectual, viz., suffers his own to be disposed of according to the will, or makes compensation for so much as he takes of mine ; that is electio n. 'But prima facieit is not to be supposed that a testator disposes of that which is not his own. It must be by demonstration plain, by necessary impli- cation; meaning by that, the utter improbability that he could have meant otherwise. But where there is that plain demonstration, that necessary implicationi, then you must give up all, to pass according to the wiU, or make compensation." This passage from Lord Eldon's judgment in effect states the whole principle of election, a prin- ciple which runs through almost aU of the cases on the subject. It would seem, however, from some of the cases, that to raise the question of election, it ought to be shown that there is in the instrument creating the necessity for election, something showing that the framer of it, was incorrectly assuming that he had the right to dispose of that which in fact belonged to the donee under the instrument, dehors that instrument. Thus in Lowes v. Lowes (Ji), the tes- tator, in the first part of his will, devised and be- queathed all his real and personal estate to trustees, by and out of the rents to pay an annuity of 100?, a year to his wife during her life or widowhood, and subject thereto on trust for his daughter for life, remainder to' her children and remainder to his brother. The widow claimed her dower, and the (A) 5 Hare, 501. ■88 NOTE ON ELECTION. •Court thought that if the will had stopped there, the widow would not have been put to her election. But the will went on to say that the trustees should, during the continuance of the trusts, have power ' to continue ' and carry on all or any of the farms or other concerns in which he (the testator) might be engaged at the time of his decease, and to restrict or increase any such concern, and to demise, mort- gage or sell all or any part of his real estate and chattels real,^ language certainly implying that he overlooked the charge on the lands of his wife's dower. And the Court said: "The only question is, whether the power given by the will (referring to it) can be treated as consistent with the preserva- tion of the dower." Referring to Miall v. Brain (i), Roadley v. Dixon (j) and other cases, his Honour held the widow bound to elect. In Miall v. Brain the testator gave all his real and personal estate to trustees ; as to a certain jfreehold messuage, for his wife for her life if she remained his widow, the trustees to fiu;nish the same for her absolute use and benefit, and out of the rents to pay her an annuity of 100/. for life; and after several provisions, all indicating that he possessed, or thought he possessed, complete ownership, he gave the residue of his real and personal estate among his children, and he gave his trustees a power of sale, which, of course, he could not give, except subject to his widow's right of dower. The Vice-Chancellor, Sir John Leach, said: " A wife is put to her election on the same (i) 4 Mad. 119. 0") 3 Euss. 192. NOTE ON ELECTION. 89 principle as a stranger is. To put the wife to her election, there must be a clear intention to exclude her from dower, either expressed or implied; and such an intention is not to be implied either from the gift of particular messuages and hereditaments to the wife for her life, or from the annuity provided for her. Bvit here the testator directs the trustees, to whom he devises his estate, to permit his daughter to use, occupy and enjoy a certain freehold house for her life. I think that the testator contemplated for his daughter the personal use, occupation and enjoy- ment of this house, and such personal use, occu- pation and enjoyment is inconsistent with the widow's right to dower out of that house." In other words, it seemed to the Court, that the testator dealt with the dower as if it was part of his estate ; and the widow was put to her election. In Roadly v. Dixon, the testator by his will gave an annuity to his wife, charged on his estate at S., and gave other legacies and annuities, also charged in like manner. Then he gave all his real and personal estate to trustees on certain trusts; and he gave them extensive powers to occupy, let and manage his estates, including certain property at S., which was a considerable part of them. The widow claimed dower out of all of his estate. The Lord Chancellor said: " The law upon questions of this kind is very distinctly and clearly settled. The widoAv wiU be entitled to her dower, unless in the wiU, under which she takes a benefit, there are provisions absolutely inconsistent with her claim of dower. The only doubt, therefore, must be as to the application of 90 NOTE ON ELECTION. that principle; and the question is, whether the provisions of this will are inconsistent or not with the wife's claim of dower " (_/). As to the estate at S.j his Lordship considered that giving his trustees powers to nianage his estate at S. (which consisted of a mansion house and extensive farm), that was clearly inconsistent with the idea of the widow having dower out of it. And he also drew the same inference from the fact, that the whole of the property- was the subject of one general devise. In fine, his Lordship thought the whole will was inconsistent with an intention that the widow should have dower out of any part of the estate; and she was put to her election. In Butcher v. Kemp (Jt) similar grounds of deci- sion were taken. There the testator had a farm of about 136 acres, and he devised it to trustees during the minority of his daughter, and upon her attaining her majority, he devised it to her for life, with re- mainder over to the sons of his daughter, &c. ; and lie gave directions to the trustees during the minority of his daughter, to carry on the business of the farm, and powers of leasing. And then he gave certain other eighteen acres of land, to his wife for life, remainder to his daughter in fee. The question was, whether the widow was entitled to dower out of the 136 acres. It was clear that his disposition of that portion of his estate, was quite inconsistent with the notion that he contemplated his wife having dower (i) See p. 260 of the Report. (J) 5 Mad. 61. NOTE ON ELECTIOK. 91 out of the farm; and the widow was put to her election. And in Williams on Executors (vol. ii., 7th edition), it is stated, referring to several authorities in p. 1441, that it is not requisite for the operation of the prin- ciple of election, that the testator should be aware that the property of which he undertakes to dispose, is not his own. The obligation of making an elec- tion, win be equally imposed on the legatee, although the testator proceeded on an erroneous supposition, that both the subjects of bequest were absolutely at his own disposal. It is hardly necessary to say that the doctrine of election is applicable to other cases, as weU as to questions of dower. It is in fact applicable to every case in which it would be inequitable for a person to whom a gift is in any manner made, and who has a Itgal right conflicting with the intention expressed or implied, to accept the gift and also claim the legal right. Thus, where a testator gave by his will, "aU and singulax his estate and effects whatsoever and. wheresoever, and of what nature or kind soever, both real and personal, which he should die possessed of, interested in or entitled to," to trustees, " on trust to apply a portion of the rents and profits for the support of his son John; and subject to the payment of certain other sums, upon trust to invest the residue; and after the death of his said son, to sell all Ms real and personal estate, and to distribute one- third part of the produce among all the children of his said son,, and to pay the remaining two-thirds as 92 NOTE ON ELECTION. in his will directed." The will was ^ated in 1820; in 1824 the testator purchased some land, and he died in 1827. His son John died in the testator's lifetime, and the defendant, Thomas Ireland, was his heir-at-law, and he claimed to have his share of the gift of one-third of the testator's property devised for the benefit of all John's children; and he claimed also the property bought by the testator after the date of his will, as heir-at-law. But the Court held, that as the testator's wiQ extended to and comprised the subsequently acquired property, the heir-at-law must elect to take either the share of the one-third, devised by the will, or the subsequently purchased property (Z). But in a case apparently, and- only apparently, somewhat similar to Churchman v. Ireland, the testator had by his wiU, in 1807, devised and be- queathed all his real and personal "estate whatsoever and wheresoever to trustees, upon trust for his daughters for life, in equal shares; and upon the deaths of his daughters respectively, upon certain trusts for the benefit of the children of his daughters and their issue. In 1811 he made a codicil, by which, reciting that he had purchased certain free- hold estates in Scotland, he devised those estates to the same trustees upon " the trusts," &c. con- tained in his will of and concerning his other jfree- hold estates devised by him in his said wiU, and he •directed that if it should happen that any estates (V) Clwvrclvmam, y. IreUmd, 1 Russ. & Myl. 260. NOTE ON ELECTION. 93. purchased by Jbim should happen to be conveyed after the date of the codicil, they should be conveyed upon the trusts of his will. He had purchased before his death real estates in Scotland, some of them before his will, and some after. The two daughters were the co-heiresses of the testator, and the biU was filed by their children, praying that the daughters, the co-heiresses, might be put to their election to take either the heritable estates in Scotland and the estates in England pur- chased after the date of his will, or to lose the benefits given to them by the will. The Court observed, as to the will, that no men- tion was made in it of the Scotch estates, and that some of the uses expressed in the will could not be applied to the Scotch estates; and as to the codicil, that the expressions used were not sufficiently certain to exclude the co-heiresses (m). In other words, there was not enough to show that the testator intended to exclude the co-heiresses fi:om their legal rights as such, and they were not put to their election. The rule therefore was followed, that to apply the doctrine of election, it must be shown, by the language of the instrument, that the author of the instrument intended to dispose of that which was not within his power of disposal. As this work does not profess to be a complete treatise on any particular branch of equitable juris- diction, but only an outline of the doctrines and (m) Johnion v. Talford, 1 Buss. & Myl. 244. 94 NOTE ON ELECTION. principles of Equity applicable to the forms, it jfould be beyond its scope to multiply the statement of cases on the subject of this chapter. They are very numerous, and raise some apparently fine dis- tinctions; but, with a few exceptions, they faU within the principles of the cases above referred to (m). (») For more elaborate information on the subject see Spence on (Siancery Jurisdiction, vol. i., pp. 639, 640 et Seq., and toI. ii., sect. 11, p. 585 et seg^., and Watson's Compendiam of Equity, vol. i., title Election, p. 156 et se^. Sect. VHI.— INJUNCTIONS GENERALLY. INJUNCTION'S are applicable to so njany subjects, that it will (it is thouglit)be convenient to the reader, to make some general observations on that head of Equity Jurisdiction, before proceeding to offer forms of claims in actions for injunctions. An injunction in Equity is a prohibitory writ issuing out of Chancery, either to restrain a defen- dant from doing some act inconsistent with equity and good conscience; or, if the wrongful act has been actually done, whoUy or partially, then to restrain the defendant from permitting things to continue in such a condition as to perpetuate the wrong. The former kind of injunction is strictly pro- hibitory, the latter is what is called a mandatory injimction; and, though still an injunction tech- nically, is substantially an order compelling some act to he done (a). The distinction between the two classes of injunc- tions wiU be best understood by examples of each kind. If, for instance, A. infringes B.'s patent or copyright ; or if A. commits waste, the injunction restraining him from continuing to do so is properly (<7) Under clauses 16, and 24, sect. 7, of the Judicature Act, 1 873, it seems that any injunction that could be granted before the Act by the Court of Chancery, will now be grantablo as well by any Common Law Diyision, as by the Chancery Division. 96 INJUNCTIONS GENERALLY. a prohibitory injunction. But if A. has built up a wall contrary to the rights of B., or has cut channels from one mine to another, contrary to the rights of B. ; equity wiU restrain A. by injunction from con- tinuing to maintain the wall ; or from permitting the communication by the channels to remain open; that is a mandatory injunction. ,In substance and in effect, it is understood to be, and is in fact, an order upon A. to. pull down the wall, or to close up the objectionable channels. And this jurisdiction, though a singular exercise of a power originally intended only as a preventive, is firmly established by a long series of authorities (6). An injunction maybe zwferZocMfory, viz., granted on motion supported by affidavits, in the inception, or at an early stage of the proceedings (henceforth to be called an action'), pending the more full and elaborate examination into the merits of the case at the hear- ing of the cause ; .or, it may be postponed till the hearing of tiie cause. At the hearing of a cause, a previous interlocutory injunction may be made per- petual, or dissolved, as the case may require. With regard to a mandatory injunction, it requires a stronger case to obtain it on interlocutory motion, than to obtain a merely prohibitory injunction. In a case of Turner v. Spooner (c), Kindersley, V.-C, said : " The Court is in general very reluctant to grant a mandatory injunction on motion." How- (J) See Earl of MexborougTi t. Boner, 7 Beav. 127, and see the subject more fully discussed in Drewry on Jij unctions, 260 et »eg^. and supplement, 64 et se^., and Mr. Joyce's more recent work on Injunctions, p. 1309 et seq. (c) 30 L. T., Eq. 803. INJUNCTIONS GENERALLY. 97 ever there are many instances of such injunctions being granted on interlocutory motion («?). And Durell V. Pritchard (e) lays down that there is no such rule as that a mandatory injunction cannot be granted on interlocutory motion ; but that it will only be granted, when extreme or at least serious damage would arise from reftising it. And, there- fore, on the whole, the question whether a mandatory injunction wiU be granted or refused on interlocutory motion, must depend on the special circumstances of each case. This singularly roimdabout method of, in effect, ordering an act to be done, by restraining the patty from permitting it to remain undone, seems to have been first adopted in Robinson v. Lord .Byron {/)• It was followed by Lord Eldon in Lane v. New- digate (g) ; and the jurisdiction has been since repeatedly acted upon ; so that it is now quite settled, that though the Court of Chancery asserted no juris-, diction in general, directly to order work to be done ,• or, if done, to be removed ; it has jurisdiction in- directly to compel such acts to be done, by the circuitous form of injunction, called a mandatory injunction. But, as before observed, the Court ex- ercises that jurisdiction with very great caution (h). (_d) Hart of Mexiormigh V. Bomer, 7 Bear. 127; Whittaker y. Some, 3 Beav. 383, 395, n. ; Taylor t. Davies, 3 Beav. 388, n. (e) 1 Law Eep., Chanc. Ap. 244, 252. (/) 1 Br. C. C. 588. (^) 10 Ves. 192. (A) See further on this Blakemore T. Glamorgan Canal Co,, 1 Myl. & K. 154; MilliganY. MUehell,lMjl & K. 466; Attorney General r. Manoliester and Leeds Rail. Co., 1 Bail. Cas. 436, 451. D. B" 98 INJUNCTIONS GENERALLY. The principal, or, at least, most frequent subjects to which injunctions are (or were) applicable, are as follows : — 1. Injunctions to restrain proceedii^s in Courts . of Law and other Courts. 2. Injunctions to restrain waste. 3. Injunctions to restrain nuisance. 4. Injunctions to restrain interference with light and air. 5. Injunctions to restrain infringement of patents. 6,. Injunctions to restrain infringement of copy- right. 7. Injunctions to restrain infringement of trade marks. As to injunctions to restrain proceedings at law, it is presumed that they wiU altogether cease to exist under, the Judicature Acts ; for they were grounded on this principle 4 that the plaintiff in equity (the defendant at law), could show some defence to the action brought against him at law, which would be an equitable defence; but a defence of which the Court , of Law would not take notice before the passing of the Judicature Acts. But, as a Judge of the Common Law Division seems to be bound under clause 24, sect. 7, and clause 25, sect. 1 1, of the Act of 1873, to foUow equity, where the rules of equity and those of the common law are in conflict ; it seems to follow, that the matter which being shown by the plaintiff in equity, would formerly induce a Court of Equity to stay the pro- ceedings at law, and to take the case into its own hands; will now, under the Judicature Acts, be receivable in a Court of the Common Law Division, INJUNCTIONS 6ENEEALLT. 99 as a good equitable defence to the action. And, therefore, the defendant at law will no longer be put to the double expense, of defending an action at law, and of seeking relief as a plaintiflFin equity. It may, nevertheless, not be useless to discuss briefly the subject of injunctions to restrain proceed- ings in Courts of Law ; as the principles on which such injunctions were entertained or rejected, form part of the equitable doctrines 'which will, (it is presumed) henceforth bind Judges of the Common Law Division. The jurisdiction of equity, in regard to injunctions restraining proceedings at law, or in other Courts, was in personam, and not against any other Court in which proceedings were taken. For the Court of Chancery never did assert or assume any authority over other tribunals ; but the authority that it did assert and act upon, was an authority to restrain the defendant personally, from proceeding in another Court, whenever it was against equity and good conscience that he should so proceed. Thus, if a party was proceeding at law upon a legal instrument obtained by fraud or by any inequitable transaction, not fidly cognizable in a Court of Law, the Court of Chancery did not profess to interfere with the Court of Law; but restrained the defendant in equity (the plaintiff at law) per- sonally, from availing hirdself of the jurisdiction of the Court of Law ; and took the matter of the litiga- tion into its own. hands, and adjudicated according to equitable principles. There can be no doubt that the assumption of this jurisdiction by the Court of Chancery was, in p2 100 INJUNCTIONS GENERALLY. its origin, an usurpation; for if one Court can say- to a suitor in another Court, " "We will not permit you to litigate in that Court, but you must come and litigate here," that is practically abolishing pro tanto, or at least trenching upon the jurisdiction of the other Court. However, this jurisdiction of equity, and the principles on which it was exercised, have been long firmly settled. Courts of Equity would also, by idjunction, re- strain proceedings in other Courts besides Courts of Common Law ; such as the Court of Admiralty, the Ecclesiastical Courts, and, in fiict, any Coiul; not adopting and acting upon aU the principles of equity : but in all .cases, to obtain the interference of equity, it was necessary to show that the Court, whose jurisdiction was thus interfered with could not, by its course of procedure, administer equity, in the sense and to the extent in which equity is understood by the Court of Chancery. But the party ^.gainst whom this relief was sought must be within the jurisdiction of the Court of Chancery. Therefore, though a,n injunction might be obtained against a person suing, even in a. foreign Court, it would not be granted if the defendant (the plaintiff in the foreign Court) was residing in the foreign country; for then he was out of the juris' diction of the Court of Chancery (i). It is presTimed that under clauses 24 and 25 of the Judicature Act, 1873, the jurisdiction of the Court of Chancery to restrain by injunction pro- (i) See Lord Portarlington 7. Soulby, 3 Myl. & K. 104. And see Drewrjr ou Injunctions, part i., chap, xiy., and Joyce on In- junctions, title Jonsdiction. INJUNCTIONS GENERALLY. ceedings in the Admiralty Court, the Probate Court^" and other Courts named in clause 16 of the Act, will also cease to be applicable ; as those Courts form part of the " High Court of Justice," and will, it is conceived, be bound, as well as Courts of the Common Law Division, to apply the rules of equity, and therefore to admit, as a defence to an action, matter which would have induced the Court of Chancery, before the Jftdicature Acts, to restrain the plaintiff in the particular Court, from proceeding. It must not, however, be understood that in all cases where equity was not actually done by a Court of Law, an injunction could be obtained to restrain the proceedings at law. For, if the matters which were proved on an application for an injunction, were matters which might have been proved at law, and might have gone to the jury ; and it was the neglect of the plaintiff in equity, that such matters were not brought to the notice of the Court of Law, there an injunction would be refused. It is only where the Court, in which the proceedings were taken against the plaintiff in equity, was shown to be unable to take full cognizance of the case, or was, in fact, unable to do complete justice, that an injunction could be obtained (J). Therefore, where the illegality of a transaction would be apparent in an action at law, equity would not restrain such an action (K). The broad rale seems to be this: that in regard to Q' ) Bateman v. Willoe, 1 Sch. & Lef. 201; Lingard T. Sitiert- ton, 1 Rose, 459; Williams v. Dames, 2 Sim, 461. (4) Graves y. SoulMteh, 2 Price, 147. 102 INJUNCTIONS GENERALLY'. any instrument, if tlie illegality of it appears on the face of the instrument itself, equity would not inter^ fere ; because the defendant at law could then obtain foil justice in a Court of Law ; but that, if the illegality had to be proved dehors the instrument, by evidence not admissible at law, then equity would grant an injunction (Z). Where the case was one of fraud, over which Courts of Law and Courts of Equity had concurrent jtttisdiotion, and it appeared that the evidence of -the fraud could be set up at law as well as in equity, and could be better dealt with by a jury than by a Court of Equity; there an injunction to restrain the action at law would be refosed {m). But if the circumstances could be as well and as folly examined in equity as at law, then the- Courts of Equity, though felly recognizing the concurrent jurisdiction of a Court of Law, would not relinquish their ancient jurisdiction, and would adjudicate (w). Though equity would restrain proceedings upoffl legal rights, where the exercise of such rights was inconsistent with equity and good conscience, it would not do so in general, on the mere ground of hardship (o). But where there was a covenant, and the cove- nantor committed a breach of the covenant, but the covenantee waived the breach, the Court restrained (2) Byne v. Yiman, Byne v. Potter and Bromley v. Holland, 6 Ves. 604, 609, 610. And see further, the cases referred to in Drewry on Injunctions, chap, i., part i., p. JO. (m) FenelVy v. Bcmscelot, 19 W. R. 966. And see Joyce on Injunctions, vol. ii., chap, i., p. 1086. («) Stmi V. Oowcher, 1 De G., F. & J. 618. (0) Leeds t. Cheetliam, 1 Sim. 146. INJUNCTIONS GENERALLY. 103 him from suing the covenantor at law. Thus, where there was a bond, and the obligee wrote to the obligor, " If the interest is paid regularly, it is not my intention to call in the amount for four years," and the interest was on two occasions not paid regularly, but the obligee accepted the payment, the Court restrained the obligee from suing on the bond (p). The foregoing statements and examples, wiU be sufficient to show the general principles on which the Courts of Equity exercised the jurisdiction of granting injunctions to restrain proceedings in other Courts ; and it would be inconsistent with the character and limits of this work, to further multiply the number of authorities cited (^). - (p) Norton v. Wood, 1 Rnss. & Myl. 178. \q) For a more elaborate examination of the anthorities on tbe iraisdiction of equity to restrain proceedings in the Courts of Law and other Courts, see Drewry on Injunctions, chaps, i. — iv. And see Mr. Joyce's able and more recent work on Injunctions, vol. ii., p. 1053 et aeq. 104 FORMS OP CLAIMS AND DEFENCES. Sect. IX.— INJUNCTIONS TO EESTEAIN WASTE. No. 18. — Injunction to restrain Waste. (See Earl of Lonsdale v. Cnrwin, 3 BUgh, H. L. 168, notis.) . [Ti^le.] Between A. B Plaintiff, and CD. . Defendant. 1. The plaintiff is seised of the manor of Z., in the county of ; and also of certain closes or pieces or parcels of land called X., lying on the south side of a rivulet called the " Mill Race," which divides the manor Z. from the land X. There are mines of coal, under the closes X., belonging to the plain- tiff. The defendant is seised of lands also on the south side of the rivulet called the " Mill Eace," under ;ffhich lands of the defendant there are also coal mines. 2. The defendant has, by his servants and agents, worked the mines imder his said land on the south of the " Mill Race," and in doing so, he has extended his works upwards of feet under the plaintiff's land X., and has carried large quan- tities of coal from under the said land X., amounting in quantity to waggons full, or tons of coal, of the value of not less than 3. The defendant has not only worked under the plaintiff's land as aforesaid, and dug out from such workings large quantities of coal as aforesaid, but has given du-ections to his servants to remove several of the pillars heretofore existing in the plaintiff's mines under the said land X., supporting the roof of the plaintiff's mines, whereby the working of such mines, if such removal of the said pillars is continued, will be destroyed, or at least rendered much more difficult and ex- pensive. 4. The defendant has also directed his servants and agents INJUNCTIONS TO EESTRAIN WASTE. 105 to let out the water from his own coal mines, into the coal mines under the plaintiff's land and belonging to the plaintiff; whereby the workings of the plaintiff in his own collieries, will be, if not absolutely destroyed, at least greatly injuredj and damaged in value to a very considerable extent. The plaintiff claims :— 1. An injunction restraining the defendant from continu- ing to work in the collieries situate under the plainr tiff's land, and from allowing the water from his the defendant's collieries to flow into the plaintiff's col- lieries. 2. An account of the profits made by the defendant by his working and obtaining coal as aforesaid under the plaintiff's land and in the plaintiff's collieries ; and that the defendant may be ordered to pay to the plaintiff the amount of profits so made by the defen- dant. 3. Damage for the injury done by the defendant by allow- ing the water from the defendant's collieries, to flow into the plaintiff's collieries. 4. Such further or other, &c. [Title.] Statement of Defence. 1. The defendant admits the truth of the statement in para- graph 1 of the plaintiff's claim. 2. The defendant admits that he has worked the coal mines under his own land, but he denies that he has extended his works in manner stated in paragraph 2 of the plaintiff's claim under the plaintiff's land, or at all ; and so it will appear if a proper survey is made of the &tent of the plaintiff's mines and of the defendant's mines. 3. The defendant has not given any such directions to his servants and agents, as in paragraph 3 of the plaintiff's claim. The plaintiff has erected pillars not only in the collieries under his own land, but has also erected pillars which are in fact r.5 106 FORMS OP CLAIMS AND DEFENCES. under the defendant's land, and the defendant has ordered such pillars to be removed. 4. The defendant has Hot given to his servants and agents any of such directions as are in paragraph 4 of the plaintiff's claim mentioned. The defendant has, on the contrary, done all acts in his power, to prevent any flow of water from the defendant's mines into the plaintiff's mines. But the defen- dant is wholly unable to prevent the flow of some very small quantity of water fi-om his mines into the plaintiff's mines. [Title]. Beplt. The plaintiff joins issue, &c. NOTE ON INJUNCTIONS TO RESTRAIN WASTE. 107 What is waste, and who may properly commit waste, is in strictness more a question of the law of property, than of equity. However, it may be stated generally, that waste is some act injurious to the integrity of property, and tending to its destruction in reference to its value, or in reference to the free and fiiU enjoyment of it. All persons, whose estates are less than estates of inheritance, are impeachable of waste ; unless they are made expressly unimpeachable, by the instrument under which they claim. And the following general propositions may be stated, as to the jurisdiction of Courts of Equity to restrain waste. If a tenant'for life impeachable of waste, cuts down timber or opens new mines; that is waste which equity wiU restrain by injunction; and especially waste by cutting down ornamental timber, wiU be restrained. But it is not waste in a tenant for life, impeachable of waste, to continue working a mine, which has been lawfully opened by, a preceding tenant for life. Where there is tenant for life without impeachment of waste, he may cut down timber-, or open new minesj and do many other acts which would be strictly waste, in the absence of an express limitation without impeachment of waste. But even where there is a limitation to tenant for life expressly without impeach- ment of waste, he will be restrained by injunction from committing destructive or malicious waste. Thus he may not materially damage buildings ; nor may he cut down purely ornamental timber ; nor 108 NOTK ON INJUNCTIONS TO EESTEAIN WASTE. timber which serves for the shelter of the .estate. In all cases of this kind he will be restrained by injunction. The broad distinction resulting from the authorities as to what a tenant for life without impeachment of waste may do, and what he may not do, seems to be this: that he may commit reasonable waste, such as cutting down timber fit to be cut, for profit; equity 'will not restrain him from doing such acts. But he may not commit acts of waste, being simply acts of destruction, damaging the ornamentation or fuU enjoyment of the estate, such as cutting down orna- mental timber. But, to bring a tenant for life within the jurisdiction of equity to grant an injunction agiainst cutting down ornamental timber, it is not sufficient that such timber shall be san-^j ornamental ; it must be shown that it was planted for the purpose of ornament or for shade. And this distinction seems perfectly reasonable ; for all timber is in general ornamental; and if it could not be cut down when not planted for ornament, that would amount in most cases to depriving a tenant for life unim- peachable of waste, of his legal privilege of cutting timber. An injunction would be granted to restrain tres- pass in the nature of waste ; viz., waste by a person claiming title to the land, when the effect of the- trespass is actually working the destruction of the estate (a). But where the case is one Tpwcelj of trespass, that (a) See Drewry on Injnnctioiig, p. 184 et leq., and Joyce on In- jatiii^ms, p. 131, title Waste. KOTE ON INJUNCTIONS TO RESTRAIN WASTE. 109 is, of invasion by A. of B.'s property, no injunction "will be granted ; because the proper remedy for B. is, or at least was, at law (b). If a mortgagor remaining in possession, cuts down timber, that is waste ; and lie wiU be restrained by injunction; provided the mortgagee satisfactorily shows that without the timber, the land is a scanty security (c). There is one exception as to waste consisting in cutting timber, whether ornamental or not, viz., that the Court will not interfere, if the title to the land on which the timber stands, is in dispute between the parties. There the Court would not grant an injunction, till the title to the land was de- termined at law {d). This distinction is the more remarkable, that it would seem to be in conflict with the general rule of equity, that the Court will, in a case of doubt, balance the question of excess of injury to the one side or to the other. For in this kind of case, if the injunction is refiised, and the defendant in equity actually cuts down the timber, pending the decision at law as to the title; and then judgment at law is for the plaintiff in equity; he will have no remedy except damages, which may be no satisfactory remedy. Whereas, if an injunction is granted, the timber is preserved , for the benefit of whichever of the disputants is (J) Deere v. ChieH, 1 My. & Cr. 516. (c) Hippiiley v. Spence, 5 Mad. 422. And see the cases referred to in Drewry on Injunctions, p. 163, and Joyce on Injunc- tions, vol. i., title Waste. (d) Jones t. Jones, 3 Mer. 161; Dmervport v. Davenport, 7 Hare, 217; Earl Talbot v. Scott, i Kay & S. 96. 110 NOTE ON INJUNCTIONS TO RESTRAIN WASTEi successM at law. However, the rule is as stated in the cases referred to. Permissive waste is, principally, where a tenant for life permits buildings on the land to go to decay. The Court will not interfere against permissive waste by a tenant for life (e) : the reason seems that there is no implied trust cast upon a tenant for life to keep buildings in repair; for if there were, he could not use his life estate without committing a breach of trust: and a further reasonable ground for the rule seems, that if a tenant for life were liable to repair, he would, in fact, be made .chargeable with expense for the benefit principally of the remainderman. Of course, if a tenant for life takes under an ex- press limitation the keeping the buildings in tenant- able repair and doe? not keep them in repair, he would be liable to an injunction restraining him "from permitting or suffering any further waste;" for that would be a case of contract, by which the charge is thrown expressly on his estate. Where timber has been planted, or left standing for the purpose of ornament, and it has become decayed or injurious to adjoining trees, equity will not, even in that state of things, permit it to be cut down; unless its removal is shown to be essential to intended purposes of ornament or shelter (/). (e) P), the plaintiff's case was, that he had, from time immemorial, had two streams of water passing through his land, which two streams were derived from and passed through the lands of the defendants. The defen- dants had erected bleach works, using therein certain deleterious, poisonous, and noxious chemical and other matters, which polluted the waters flowing from the defendant's streams into the plaintiff's (o) See also SaAnes v. Taylor, 10 Beav. 75; -2 Phil. 209j 'Attorney- General v. Mayor, &e. of Kingston, 11 Jur., N. S. 596. (^) 5 L. R., Ap. 583. (j) 35 L. J., N. S; 619. (r) 2 M'N. & Gord. 45. NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. 129 streams. Before that toot place, the water in the plaintiff's streams was alleged to be fit for irrigation, for culinary pmrposes, and for cattle and for fish. But since, the water had become, as it was contended, unfit for the use of man or beast, and was destructive of fish. The defence was, that all the poisonous elements used by the defendants, were extracted to the utmost possible extent ; and, in fact, that the water on the defendants' premises was innoeuous, and fit for the drink of animals and for fish. There was no evidence that there was any house on the plaintiff's land, so that the question whether the water was unfit for culinary purposes, did not arise. The Lord Chan- cellor, dissolving an injunction granted by the Vice- Chancellor, did so on three grounds : (1 ) That the plaintiff did not prove that he had sustained such a ■ substantial injury by the acts of the defendants, as would have entitled him to a verdict in an action for damage ; (2) That the balance of inconvenience, as between the parties, if the injunction were main- tained, would be against the defendants, as they would have their works stopped entirely pending an action ; and (3) That there had been ample time, before the bill was filed, to try the case at law. Nuisance by Noise, Smoke, Offensive Smells, Sfc. With regard to smoke, noise, smells, vapour, or any fluid, each of them may amount to a nuisance. And no owner of one tenement will be allowed to cause, or permit to flow into or pass over his neigh- bour's tenement, any one or more of these things, in g5 130 NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. Such a way as materially to interfere with the ordinary comfort of the occupier of such neighbouring tene- ment, or so as to injure his property (s). In the case referred to, the Court was satisfied that an actual nuisance arose firom smoke, effluvia, and noise, and granted an injunction. Nuisance by Noise. Excessive noise is a nuisance which wiU be re- strained ; but Ihere must be an extent and duration of noise Aat will come within the definition of being injurious to the reasonable enjoyment of life and comfort. Therefore, where, at a Roman Catholic church, a bell was rung every morning at 5 a.m. and at ;^ to 7 a.m. ; and another bell was rung at ^ to 9 A.M,, and at 7;^ every evening ; and there was, besides, a large amount of other beU ringing ; and it was alleged that the plaintiff's house was adjacent to the church, and that the annoyance to the plaintiff's daughter, who was in delicate health, was such that the plaintiff was obliged to remove her to a more quiet' place ; and generally, that the noise, when some of the beUs were rung, was such that it was impossible to read or converse without great difficulty : And the plaintiff had, previously to filing his biU, brought an action at law, and re- covered 40s. damages and costs : It was held on demurrer, by the Court of Chancery, that this amount of noise was a nuisance, and an injunction was granted {t). It was argued, among other things, (<) See the judgment in Crump v. Lamhert, 3 L. R., Eq., p. 413. if) Soltau v. Be Held, 2 Sim., N. S. 133. KOTE ON INJUNCTIONS TO EESTEAIN NUISANCE. 131 for the defendant, that this was a case of public nuisance, and that the Attomey-Generar ought to have been made a parly ; but it was held that there being a special and particular -damsige to the plain- tiff, he could sustain a bill, although there was also a public nuisance (m). The latter proposition, viz., that, where there Is a nuisance causing spgeial injury to an individual, then, although it may also be a public nuisance, the individual might sustain a bill alone, without making the Attorney-General a party, seems quite settled by the cases of Soltau v. De Held, Spencer v. Londoji §• Birmingham Railway Company (w), Sampson v. Smith (x), and Walter v. Selfe (y). In a very recent case («), the plaintiff was tenant of a house in Green Street, Grosvenor Square, yhich he used as a private hotel and private lodging house, and thereby earned his living.. The defendant became tenant in 1871 of the next house,. the groiand floor of whic^ had, for more than fifty yeaa'S, been used as a stable. It appeared, however, from the evidence, that before the defendant's occupation, there was never more than one horse kept in that stable ; and that one, so kept as not to be, in any sense, in contact with the wall of the plaintiff's house ; and it appeared that, at any rate, if there had been at any time more than one horse so kept, no nuisance was shown ever to have arisen from the («) Soltau V. De Seld, 2 Sim., N. S. 133. (v) 8 Sim. 193. (as) 8 Sim. 272. (y) 16 Jnr. 416. (,z) Mil T. May^ 8 L, B., Jill. i6J. 132 NOTE ON INJUNCTIONS TO EESTKAIN NUISANCE. keeping of horses on the said ground floor. In 1871 the defendant constructed or reconstructed stables on the said ground floor of his house, in such a manner that the mangers were fastened against the party ■wall between the two houses, and he there kept several horses: the noise occasioned by the horses amounting to a practical nuisance to the plaintiff and his family. On appeal from the Master of the RoUs, the Lord Chancellor (Lord Selbome) was of opinion, that it was no defence to say that horses had been previously kept in the stable without oppo- sition, while their noise did not amount to a nuisance. And that, although the ordinary noises which may accompany the ordinary use of a house, for its ordi- nary purposes, aire not, in point of law, a nuisance : yet, where the occupant of a house uses it for an unusual purpose, and thereby causes substantial injury to his neighbour, that constitutes a nuisance, for which an action at law would lie, and which wiU be restrained in equity by injunction. But in the case of nuisance by noise — such as the noise of machinery — ^the Court will have regard to the locale and surroundings ; thus, where in a manu- facturing town, the complaint of the plaintiff was that there was a great increase of noise in a neighbouring factory, by reason of the introduction of a smaU. steam-engine, in lieu of hand-power ; it was held that the onus of proof of nuisance was on the plaintiff, to show that there had been a substantial increase of noise (a). The evidence in this case was con- (fl) Gawnt V. Finney, 21 W. Rep. 129. NOTE ON INJUNCTIONS TO EESTEAIN NUISANCE. 133 flicting, the defendant positively denying that there was any material increase of noise. Where the plaintiff was owner in fee of a house and grounds on the outskirts of a town, divided by a narrow pathway from the grounds appertaining to the defendant's house, and the defendant had in his grounds monster fStes, with music, dancing and fire- works, and. bands of music playing on certain days for nine or ten hours in succession ; and, in addition, there was all the noise consequent upon the assem- bling of large crowds of people ; that was held to be a nuisance, and was restrained by injunction (6). So, as to the noise arising from a circus, the per- formances taking place every evening for a period of eight weeks from 7"5 p.m. to 10"5 p.m., and the noise of the music and shouting in the circus was such as to be heard in an adjacent house above the con- versation in the dining-room, although the windows and shutters were closed ; that was also held to be a nuisance (c). But in Harrison v. Good (d), where the purchasers of land sold in lots, covenanted with the vendors not to allow anything to be done on their respective lots, which should, be deemed a nuisance to the proprietors or occupiers of the adjoining properties ; and one of the purchasers entered into a contract with another to let the land to him for the purpose of establishing on it a national school ; it was held that a school of that kind was not a nuisance in point of law, and (J) Walker T. Brewster, 6 L. B., Eq. 26. (c) Inclibald t. Robinson, 4 L. R., Ch. Ap. 388. (,d) 19 W.R. 346. 134 NOTE ON INJUNCTIONS TO RESTEAIN NUISANCE. was not within the covenant. The alleged nuisance arose of course from the noise and misbehaTiour of the boys in going to and from school. But Bacon, V.-C, said, that was a nuisance which the common police regulations of the metropolitan police could prevent ; and the bill was dismissed. The Court of Chancery had power under the 25 & 26 Vict. c. 42, to try a case with a jury, but it was not compulsory on the Court to have a jury. It had power also to direct issues to be tried with viva voce evidence ; and in a case ofEaden v. Firth (e), where the complaint on a motion for an injunction, was of an alleged nuisance by the defendant using an enormous steam-hammer, the defendant desiring to have a jury ; the Court refused to determine the question on a motion for injunction ; and also refused to try the case as a cause, either with or without a jury ; on the ground that there was nothing in the statute (the 25 & 26 Vict. c. 42) to deprive a party from having a trial by jury at law in the ordinary manner ; and the Court directed an issue at law to try the question of nuisance. In this case, it did not satisfactorily appear, that there was any real apprehension of serious and immediate injury to health. If that had appeared, the Vice-Chancellor said he would have granted an injunction pending any trial. So as to damages, though under the Act above referred to and the 21 & 22 Vict. c. 27, the Court has power to decide the question of damages ; it is («) 1 Hem. & Mil. 673. NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. 135 not made compulsory on the Court to exercise that power (/). The intention of the 6th and 7th sections of the 24th clause of the Judicatiu-e Act, ] 873, seems to be, that any division of the High Court is to admi- nister both law and equity, unless where, under sect. 1 1 ■of clause 25, there is any conflict between law and equity, and then equity is to prevail. In such cases as those under discussion, in this chapter, law and equity are not in conJUct. Equity so fa,r followed the law, before the Judicature Acts, that it would not grant an injunction, unless it saw clearly that, in an action at law, judgment would be for the plaintiff. And the law only differed so far from equity, that though it had power to grant injunctions, the Courts of law had, for some ■ reason, been very sparing in their exercise of that power. Under the Judicature Acts, it is submitted, that the division of the High Court (whether it be a Chancery Division or a Com- mon Law Division), in which the plaintiff chooses to launch his case of alleged nuisance, wiU be bound to do complete and full justice ; viz., that if the action is brought in the Chancery Division, the judge will be bound to decide both the question of legal right and the question of injunction ; and that if the action is launched in a Common Law Division, then the judge also must dispose both of the legal right and the right to or propriety of granting, an injunction. (/) Johnson t. Wyatt, 33 L. J., Ch. 394; and see sect. 5 of 21 & 22 Vict. c. 27, and sect. 1 of 25 & 26 Vict. c. 42. 136 NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. Nuisance by Brick-burning. Brick-burning by a man on his own grounds, may or may not, according to the circumstances, be nuisance. In Walter v. Selfe{g),^e plaintiff had a house and outbuildings in Surrey, and part of the ground was laid out as a' garden, lawn and pleasure ground, with trees and shrubs, and he had possessed them long before the defendant purchased his land, which was about one and a half acres, and adjoining or near to the plaintiff's grounds. The defendant was a brick maker, and commenced digging up earth upon his own land and making bricks therewith; and it was alleged, and not denied, that he intended to bum the bricks so made. The Court laid down this doctrine: " That a person in the position of the plaibtiff is entitled to an untainted and unpolluted stream of air for the necessary and reasonable use of himself and his family; or, in other words, to have for the ordinary purposes of breath and life an unpolluted and untainted atmosphere; meaning by untainted and unpolluted, air not rendered to an important degree less compatible, or at least not rendered incompatible, with the physical comfort of human existence." That rule being laid down, the only question was and could be, would the brick-burning' intended, fall within the definition of the plaintiff's right, and the invasion of that right? And the Court held that it would be so; and granted an injunction. The (^) i De G. & S. 316. NOTE ON INJUNCTIONS TO KKSTRAIN NUISANCE. 137 decision was appealed to Lord St. Leonards, C.,. and the appeal was dismissed. The circumstances in the next case of brick- burning, Pollock V. Lester (k), were rather peculiar, and nothing was decided as to whether there was or was not a nuisance. AU that the Court did, was to grant a temporary injunction, the plaintiff under- taking to proceed with an action at law, and to abide the further order of the Court. The doctrine, however, that brick-burning mai/ be a nuisance seems to have been admitted. In a case where the brick-making was conducted very near to the plaintiff's premises, and there was evidence of injury to the plaintiff's ornamental timber, and of disturbance generally ,of the comfort and enjoyment of his house ; and the defence was that the defendant was under a contract with the public for building fortifications, and that his brick- burning was not a nuisance at law ; but he did not establish by evidence that he could not bum his bricks elsewhere than close to the plaintiff's premises ; the Court granted a modified injunction (i). From the authorities above cited • as to brick- burning, it is submitted that this general inference may be drawn from them, viz., that brick-burning is not per se a nuisance, like fouling water; but that it may, under circumstances, become a nuisance ; and that the circumstances must be such as to show: first, that it produces actual injury to the property (K) 11 Hare, 266. (i) Beardimre v. Trei/ieell, 3 Gif. 683. 138 NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE.: of the complainant; and secondly, that it actually, and materially afiects his reasonable enjoyment of life. Noxious fiimes or smells may, also, be held a nuisance, subject to the interference of equity by injunction; but to entitle a plaintiff to an injunction in the case of nuisance of that kind, there must be one of two things ; either an injuiy very vast when it comes suddenly, or continually occwrring if not vast (J). Of Nuisances by Interference with Light and' Air. A nuisance, strictly so called, must be, as before stated, the result of some act or negled;, interfering with health, or with the reasonable enjoyment of life and comfort. Nuisances such as have been already discussed, are strictly nuisances. But interferences with the light and air to which a person has acquired a prescriptive right, can perhaps hardly be called strictly nuisances. It is, perhaps, more properly an interference with an easement. It is, however, generally treated as in the nature of a nuisance, and will be repressed by the law. At the same time, interference with light and air is not in general considered of so grave a character, as nuisance created by fouling water, noxious smells, or even excessive and repeated noise; and there appears from the authorities, to be a corresponding difference • (j) CociJee T. Forbes, 37 Law J., N. S. 178j see p. 184. 3fOTE ON INJUNCTIONS TO EESTRAIN NUISANCE. 139 as to the extent of injury requisite to induce a Court of Equity to interfere. To induce equity to interfere in the case of injury to rights of light and air, there must be a substantial amount of injury. That is, there must be a reduction of the complainant's supply, reducing it by a material amount. Of the application of this rule, the cases of darker. Clarke(k)a.JiA Smith y. Owen(l), are in- stances. In Clarke v. Clarke, the case made by the plaintiflF was, that whereas, before the erection of the building diminishing his supply of light, the sun shone into his room from 11 a.m. to 1*30 P.M. ; after the erection of the defendant's building, the sun only shone- into the room for 20 minutes after 11, and did not again shine into it after 1 (this was during the winter months). There was, however, no evidence that the plaintiff was prevented by the defendant's building from carrying on his ordinary occupations, and Lord Cran worth, C, reversing the decision of the Court below, refused an injunction. In the case of Smith v. Qwen, the plaintiff and the defendant were both tradesmen in Bond Street, occupying adjoining houses, and the defendant was throwing out the front of his shop further towards the street than it stood before; so that the plaintiff's customers could not sefe the display of goods in his shop so soon as they could previously see them; though, when they came opposite his shop, they could see the display as well as before his neigh- (*) 1 Law Rep., Ch. Ap. 16. (0 U W. R. 422. . 140 NOTE ON INJUNCTIONS TO BESTKAIN NUISANCE. bour's alteration. An injunction was refused, on the ground that the injury was too trifling. That a slight interference with Kght and air is not such a nuisance as will justify an injunction, see also Durell V. Pritehard (tw), Robson v. Whittingham («)> and Curriers' Company v. Corbet {o). In Durell v. Pritehard, the Master of the Rolls held, also, that the d.efendant's building, interfering with the plaintiff's light, being complete before the bill was filed, he could not grant a mandatory in- junction; and for that view his Lordship relied upon Deere v. Guest (p). But on appeal, it was held that Deere v. Guest did not lay down any such general rule ; and that, in Deere v. Guest, the injunction was refused, not because the injury com- mitted by the defendant had been completed^ but because the Court was of opinion that, under the circumstances of the case, the act of the defendant was in fact trespass, and the remedy, if any, was at law. In the case oi Isenherg v. East India Company {q), the Lord Chancellor said, in reference to interference with ancient lights, " every one of these cases must depend upon its own peculiar circumstances." The facts in that case were, that the East India Company, in buUding a new house opposite the plaintiff's, did materially darken the plaintiff's an- cient lights. An injunction had been applied for by (7«) U W. Rep. 212; 1 L. Eep., Ap. 244. (b) 1 L. Bep., Ap. 442. (o) 13 W. Rep. 105fi. (i>) IMyl. &Cr. 516. (j) 12 W. Rep. 450. JTOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. 141 tte plaintiff, which was ordered to stand over, and the motion to be turned into a motion for decree. Before the cause came on to be heard, the defen- dant's building was completed, and the real question then was, whether there should be a mandatory in- junction (in effect, the puUing down of the building), or an inquiry as to damages ; and the Lord Chan- cellor, being of opinion that it was a case where damages would be an adequate remedy, refused to grant a mandatory injunction, and directed an in- quiry as to damages. On the question as to what extent the right to protection of the prescriptive owner of light goes, there seems to be some conflict of authority. In Yates v. Jack (r), Lord Cranworth, C, laid down this proposition; that for whatever purpose the owner of ancient lights may require the light, there ought to be no material interference with it. " The right (said his Lordship) conferred or recog- nized by the stat. 2 & 3 WiU. 4, cap. 71, is an abso- lute and indefeasible right to the enjoyment of the light, without reference to the pur-pose for which it has been used." The contention of the defendant in Yates v. Jack was, that though it might be the fact, that he did, to some extent, diminish the amount of light previously enjoyed by the plaintiff, yet he left quite sufficient light for the plaintiff to carry on his then existing business. The plaintiff, on the other hand, con- tended that his right was to aU the light that he (r) 1 L. Eep., Eq., App. 295. 142 NOTE ON INJUNCTIONS TO KESTKAIN NUISANCBi had theretofore had, for whatever purpose he might require it. And this, Lord Cranworth considered a correct view. But his lordship was satisfied that the erection of the buildings proposed to be erected by the defendant would materially interfere with the quantity of light necessary or desirable for the plaintiffs in the conduct of their then existing busi- ness, and granted an injunction, so that the general opinion expressed by his lordship was only a dictum. In Jackson v. Duke of Newcastle («), Lord West- bury appears to have taken a view different from that of Lord Cranworth, and to have considered that the obstruction of light must be an obstruction which diminishes the value of the premises for the purposes only for which they are actually used, and that the fact that the actual diminution of Ught, if it does not so operate, may render the premises affected less useful for sorae. future purpose for which they may be wanted, is not to be taken into account. In the case before Lord Westbury, his lordship was satisfied that for the actual purposes for which light was wanted by the plaintiff, although there might be some obstruction by the buildings of the defendant, the plaintiff would have, beyond doubt, an abundance of light for the ordinary operations, which were actually carried on in the room affected; and he ■proposed to dissolve the injunction granted by the Court below, without prejudice to any fiiture appli- cation. In this state of things, finding two Judges so W 33 1-. J. 698 J 3 De G,, J. & S. 275. NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. 143 eminent differing so widely, it is difficult to ascertain what is the exact state of the law. But it is sub- mitted to the learned reader, that the dictum of Lord Cranworth seems most in conformity with the language of the 2 & 3 WiU. 4, c. 71, which, in the 3rd section enacts, " that when the access and use of light to and for any dwelling-house, workshop or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shaU be deemed abso- lute and incontestable." This language, on the face of it, seems, as it is submitted, intended to give to the owner of the dominant tenement, not merely the sole right to the use of the light previously enjoyed by him, limited to the ■pcurticulair purpose for which he has actually used it, but the sole right to the specific quantity of light that he has enjoyed, the act not saying one word indicating any intention to limit the right, but speaking of the access and use of light which shall have been actually enjoyed. Lanfrdnchi v. M'Kenzie it) seems, however, rather to follow the doctrine of Jackson v. Duke oj . Newcastle. In Lanfranchi \. M'Kenzie, it was held by Sir E. Malins, V.-C, that " the prescriptive owner of ancient lights is not entitled to claim pro- tection for the use of them for a special purpose, requiring a special light, unless he has used that special light, for that special purpose, for the statutory period." In that case there were two (0 4 L. K., Eq. 421. 144 NOTE ON INJUNCTIONS TO EESTEAIN NUISANCE. points for decision; one, whether a case was shown for interference, if the plaintiffs had required and used their light, for an ordinary purpose, such as for lighting a counting-house, or for any other ordinary business purpose, and on this point his Honqr was of opinion that no sufficient case of injury was shown. The other and more material point arose in this way: — The plaintiffe had been possessed of and had used their ancient lights, for a sufficient time to entitle them to a prescriptive right. But they had not used them for the fuU period for the purposes in respect of which they complained of injury, viz., for lighting a sample room for examining silk; and what they established by evidence was, that before the erection of the building complained of, the hght coming to this sample room was a good steady light, . well suited for the purpose, and that the effect of the defendant's building was to contract the amount, of light in the momiag, and to throw a greater quantity of light into the room in the afternoon, amounting, in fact, to a glare of light, injurious to the purposes for which they used their room. In fact, therefore, it is clear that an injury was done. But Malins,V.-C., held that the plaintiff could not have relief agalinst a variation of their light, which would not have amounted to injury if the light had been used only for ordinary purposes, and only amounting to injury to the amoimt of their light, when used for extra- ordinary purposes, and not shown to have been used for those extraordinary purposes for the full period of twenty years. The learned Judge observed, also NOTE ON INJUNCTIONS TO RESTRAIN NUISANCE. 145 (with' reference to the contention of the plaintiff as to Tarying the Kght by diminishing it at one time and increasing it at another), that "no case had ever occurred in which the Court had interfered to prevent a person from erecting a building, which has the effect of increasing the plaintiff's light, and that he' should not be the first to make such a pre- cedent." > , That no such case has ever occurred, seems to be easily accounted for. The reason is obvious, viz., that it is a wholly unusual and exceptional state of things for a man to be injured, especially in a great city, by receiving an increase of light; the complaint is, in almost every case of interference with light, that what the owner of the light suffers by the act of the defendant, is a diminution of light. Still, it may happen (as it did in the case of Lanfranehi v. M'Kenzie),- that to diminish a man's light at one ^period of the day, and give him a great glare of light at another, may be a serious injury and annoyance. But, after all, is not the real question, what is the true construction of the 3rd sect, of the 2 & 3 Will. 4, c. 7 1, as to what that Act intended to protect ? Did the Act intend to protect the light coming to the plaintiff, such as it was from the beginning, in quantity 9 or did it intend to give him a contracted right, viz., a right only to use it for his ordinary purposes ? It is submitted, that the statute makes no such distinction. The words of the statute are " the access and use of light to and for any dwelling-house, D. H H6 NOTE ON INJUNCTIONS TO EESTKAIN NUISANCE. workshop or building." Not a word is to be found about the purposes for which the light is wanted and used. And it is submitted, that the cases of Lanri. franchi t. M'Kenzie and Jackson v. Duke of New- castle interpose a qualification of the right given by the statute, which is not to be found in the statute itself. It may be as severe an injury to the owner of the statutory right to flood him with additional light as to diminish his light ; and it is submitted, that the view of Lord Cranworth is the correct view, and that the statute intended to protect the owner of an ancient light, in the actual quantity f£ light that he has enjoyed for the twenty years, for what- ever purposes he may choose to use it. It is submitted to the reader, that fi:om the fore- going authorities bearing on the jurisdiction of equity in cases of nuisance, the foUowing general rules may be deduced :^- L That to justify the interference of equity, the nuisance must cause actual damage, or in- terfere with the reasonable enjoyment of life -or property ; and must not "be merely a slight annoyance. 2. That the nuisance must be actually existing, and not merely contingent or prospective. 3. That if a nuisance is created by the carrying on of a trade or a manufacture, it is no justification to show merely that the trade or manufacture is lawful. It must also be shown, that it is carried on in a reasonable and proper manner, and in a proper place. 4. That it is no justification of nuisance affecting NOTE ON INJXJNCTI0N9 TO BESTBAIN NUISANCE. 147: a private right, to say that if it is stopped, injury to the public will ensue. 5. That where the legislature apparently gives powers to do acts which will necessarily produce nuisance, such powers must be clearly expressed, and wiU not be presumed. 6. That the general rule of equity, that a mate- rial amount ©f acquiescence will deprive the party injured, of his remedy, is appli- cable to cases of nuisance ; and Lastly, that where there are great difficulties in the way of removing a nuisance, the Court will give a reasonable time fw obedience to its order. h2 148 FORMS OF CLAIMS AND DEFENCES. Sect. XII.— INJUNCTIONS TO RESTRAIN IN- FRINGEMENT OF COPYRIGHT. No. 2.4. — Action to restrain Infringement of Copyright. . (See Bramwell v. Halcombe, 3 My. & Cr. 737.) [Title..] Between A. B. ._ Plaintiff, and CD - Defendant. Statement op Claim. 1. The plaintiff is theauthor of a " Treatise on the' Mode of Proceeding on Bills in the House of eommens," and has done all lawfixl and necessary acts for acquiring, and has acquired and is now possessed of copyright in the said treatise. 2. The defendant is the author of " A Practical Treatise on passing Private Bills thro.ugh both Houses of Parliament," and has published and sold copies of his said work. 3. The defendant in his work has copied numerous passages from the plaintiff's work, and has in fact copied many of the most important passages in the plaintiff's said work, being passages that give to the plaintiff's work a large portion of its value. And the defendant has, by so copying passages from the plaintiff's work, materially injured the plaintiff's sale of his work. The plaintiff claims : — 1. An injunction restraining the defendant from con- tinuing to publish his work, containing any such passages as the Court shall declare to be copied or eolourably altered from the plaintiff's work. 2. Damages for the injury done by the defendant to the sale of the plaintiff's work. 3. Such further or other, &c. INFRINGEMENT OF COPTEIGHT. 149 [Title.] Statement op Defence. 1. The defendant admits the truth of paragraphs 1 and 2 of the plaintiff's claim. 2. The defendant has not copied any material amount of passages from the plaintiff's work ; such passages as he has taken from the plaintiff's work, are not only very few in number, but are of very little importance, and not such as to give any substantial value to the plaintiff's work. The few passages that the defendant has taken from the plaintiff's work are, in fact, not original information communicated to the public for the first time by the plaintiff; but passages stating only what was, before the publication of the plaintiff's work, in the common knowledge of persons conducting private bills in parliament. Reply. The plaintiff joins issue on the defence. No. 25. — Action to restrain Infringement of Musical Copyright. (See D'Almaine i>. Boosey, 1 Yonnge & Col. 288.) [Title.] Between A. and B Plaintiffs, and C , . . Defendant. 1. The plaintiffs are the purchasers from the composer, and lawful owners of the copyright in the music of a certain opera called , and the said copyright is a valid copyright in the law. 2. The defendant has arranged and published and sold cer- tain quadrille and waltz music, founded upon and in fact taken from the melodies of the music contained in the said opera ; and has in fact imported into the said 'quadrille 150 FOlBMS or CLAIMS AlW) DEFENCES. and waltz music, large portions of the melodies contained in the said opera. 3. In one of the said waltzes, the defendant has introduced 17 bars consecutively from an original air in the said opera; and in many other instances the defendant has copied not only the melodies of the said opera, but also a considerable portion of the harmonies. The plaintris claim :— 1. An injunction restraining the defendant, from con- tinuing to publish or otherwise use, any part of the melodies or harmonies contained in the said opera of 2. Damages for the injury done to the plaintiffs, by such user as aforesaid of the melodies and harmonies con- tained in the said opera. 3. Such further, &e. fTitle.] Statement op Defence. 1. The defendant has not taken and imported into his waltzes or quadrilles, any material part of the melodies or harmonies contained in the opera called . Wherever he has taken any part of a melody contained in the music of , not only has it been a very small part of such melody, but he has most materially altered the instrumentation, and in fact has composed a "new instrumentation not to be found in the said opera. And the ' defendant submits to the Court that, under the circumstances hereinbefore stated, he has not committed any infringement in point of law of the plsuntiffs' copyright Eeplt. The plaintiffs Join issae, &c. INFEISTGEMENT OP COPYRIGHT. 151 No. 26. — Infringement of Musical Copyright.' (See on this form, p. 162, post.) [Title.] Between A. B Plaintiff, and CD Defendant Statement op Claim. 1. The plaintiff is the composer of a symphony in A minor, ■written for a full orchestral band, the score consisting of the following parts, viz. : of stringed instruments, first and second violin, viola, violoncello and contrar-basso parts ; and of wind instnunents, two flutes and one piccolo, two clarionets, two oboes, two French horns, two bassoons, one euphonium and pne drum. 2. The plaintiff has published both the -full score and the separate instrumental parts of the said symphony, and has duly registered the same ajid done all necessary acts in the law, to vest in. him the pr(^rietorship of and in the said symphony, and of and in the separate instrumental parts,- and the plaintiff is the lawful proprietor of the copyright of and in the said sympjiony and the separate parts thereo£ 3. The defendant has. made and published an arrangement of the score of the said.symphdny for a septett band, con- sisting of two violin parts, one viola, one violoncello, one contra-basso and two flutes, and has sold a considerable number of copies of the said arrangement. 4. In the said arrangement, the defendant has transferred to the flutes, passages given in the said symphony to the clarionets and oboes; andhas given to the violoncello, passages given in the said symphony to the horns, the bassoon and the euphonium ; and has taken nearly the whole of both the har- monies and melodies contained in the said symphony. 5. The plaintiff has applied to and requested the defendant to cease selling copies of the said arrangement made by the defendant, and to account to the plaintiff for the profits he the defendant has made, by so selling copies of the said arrange- 152 FOEMS OF CLAIMS AN1> DEFENCES. ment, but the defendant has refused and still refuses to comply withtsuch requests of the plaintiff. The plaintiff claims": — 1. An injunction restraining the defendant from con- tinuing to sell any copies of his said arrangement of the plaintiff's said symphony. 2. An account of the profits made by the defendant by the sale of copies of the said arrangement of the plaintjff's said symphony, and payment of such profits to the plaintiff. 3. Such further or other, &c. [Title.] Statement op Dbpencb. 1. The defendant admits the truth of the statements in the several paragraphs contained in the plaintiff's claim. 2. The defendant saith that the making of the said arrange- ment has been the result of great mental exertion and of much musical knowledge and skill on the part of the defendant. In particular, a judicious distribution of some of the wind passages, among flutes and the stringed instruments, requires in fact the knowledge and skill of a composer ; and the de- fendant submits to the Court, that his arrangement of the plaintiff's symphony as a septett, is in the nature of an abridg- ment, and is, upon g, fair construction of the law, a distinct work and his the defendant's copyright; and he has accordingly duly registered it, and duly conformed in all other particulars with the regulations requisite for vesting in him such copy- right; and he submits that he has not, by publishing and selling his said arrangement of the plaintiff's symphony, infringed the plaintiff's legal rights. Reply, The plaintiff joins issue, &c. THE LAW AS TO INFRINGEMENT OF COPYKIGHT. 153 Copyright is unknown to the common law, and is entirely the creation of statutory law. But being by statute a legal right, it is protected by an in- junction in equity, upon the same principle on which equity will protect legal rights generally, where the remedies at law against infiingempnt are or may be • insufficient. Therefore, if A. has copyright in any work, and B. infringes it, equity will grant an injunction against B. ; the Court interfering expressly on the ground that there is a legal title (a), or an equity to have one; and to obtain the assistance of equity, the plaintiff must show a prima facie legal title, viz. : that he is the author (or assignee of the author), as the case may be; and that all the legal requisites for constituting a title have been complied with. The question, however, what is infringement of copyright, depends on the result of the authorities ; and though some general principles may be collected from them, it is often a difficult matter to ascertain what is such an amount of infringement, as will justify an injunction. The question of frequent and great difficulty in copyright cases is this, viz., what amounts to such piracy as wiU justify an injunction. A small quan- tity of passages copied will not be, in most cases, ground for an injunction, unless that small quantity comprises that which is vitally the essence of the plaintiff's book. For, as was said by Lord Cottenham (a) See 3 Mylne & Craig, p. 728, in Saunders v. Smith, per the L.C. h5 154 THE LAW AS to INFKINOEMENT OS" COPYK16HT. in Bramwell v. Halcombe (b), " one writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity > It is not only quantity, but value that is looked at." In regard to piracy of maps, road books, and generally works of pure compilation, the rule seems •to be this ; that if A. publishes a book of that kind, and B. publishes a book of the same kind, and it is shown that he, B., took a material portion of it from A.'s work, that is piracy in the view of equity. But if B.%as collected his information from the original sources, open to all the world; then, though his work must necessarily closely resemble A.'s work, that is not piracy (c). Sometimes it happens that A,, an author of a work of compilation, has collected a great deal from original sources, open to everybody ; but that he has also taken bodily a considerable number of passages from another work by B.; and then the difficulty is, "what should be the extent of the in- junction ? Should it restrain the publication of A.'s work wholly ? or should it only restrain the publica- tion of so much as is copied? Circumstances of this kind occurred in Lewis v. Fullarton (d), and in Sweet v. Maugham (e), and in those cases the order made was, to restrain the publication of A,'s book, containing any articles, &c., &c., copied or (J) 3 Mylne & Craig, pp. 737, 738. (c) See Drewry on rnjunctions, part ii. cap. ii. sect. 9, and Joyce on Injunctions, p. 292. (^) 2 Beav. 6. (e) 4 Jur. 479. THE LAW AS TO INFRINGEMENT OF COPTEIGHT. 155 colourably altered from B.'s work. This was, in effect, a quasi-mandatory injunction, compelling A. to strike out from his work the passages taken from B. As to the case where the alleged infringer has taken, not an extensive number of passages from the work of a prior author, but some of the most im- portant passages, whigh may in effect form the sub- stance, merit, and attraction of the prior work ; the better opinion seems to be, that such a copying would be piracy. And in such a case, the course taken by Courts of equity is, as in the cases of Lewis Y, Fullarton and Sweet v. Maugham, not to restrain the infringer from pubUsMng at all, but to restrain him' from publishing his work, with the piratical passages ;.- a course which, in effect, makes his actual work useless, and' compels him to publish a fresh copy of it, omitting the offending passages. And it must be always borne in mind, that in grant- ing injunctions to restrain infringement of copyright, equity interferes only and expressly on the ground •that there is a legal title (_/). In testing the question of piracy or no piracy, the fact that the plaintiff's work has certain errors, and that the defendant has the same errors, has consider- able weight with the Court in favour of granting an injunction ; because it is considered much less pro- bable that two writers, writing independently of each other, should have fallen into the same errors, than that they should have, independently of each otherj originated and enunciated the same ideas. (/) Brammell v. Haloombe, cited, stipra, p. 154, 156 THE LAW AS TO INFRINGEMENT OF COPYKIGHT. It is submitted that this doctrine is open to doubt, having regard to the qualities of the human mind. Similarity in the production of ideas must depend, in a great measure, on similarity in the two minds as to their creative powers. Similarity of errors more frequently arises from equality in absence of information ; and it is (it is conceived) more likely that two minds should be equally uninformed on any given subject, than that they should be equally gifted with similar powers of creativeness^ Under the 5 & 6 Will. 4, c. 65, copyright exists in lectures, whether delivered from a written MS. or orally. But to clothe a lecture with copyright, two days' notice of its delivery must be given to two Justices living vrithin five miles of the place of delivery ; and lectures delivered in any university, or pubKe school or college, or on any public founda- tion, or " by any individual in virtue of, or according to aaj gift, endowment, or foundation," are excepted, and are not the subject of copyright. On this clause of the Act an able writer (g) observes ; " tha,t it would seem that sermons delivered by clergymen of the- Established Church, in endowed places of worship, are deemed public property." The learned writer refers to no decided case in support of this propo- sition, and I am not aware of any since the date of his pubUcation (1870). However, there is much reason, it is submitted, for considering Mr. Copinger's view to be correct: first, because an endowed church seems to fall within the definition of "a public (g) Copinger on Copyright, p. 35. THE LAW AS TO IKF14INGEMENT OF C0PTKI6HT. 157 foundation;" second, because a clergyman of the Established Church, having an endowment, appears to be included in the definition of an individual delivering " a lecture in virtue of an endowment or foundation." Copyright exists in a musical composition, and is of a comparatively early date, viz., as early as 1777, ■when it was decided byjthe Court of King's Bench, in a case of Bach v. Longman (A) (in reference to two sonatas for the harpsichord), that as the words of the Act of Parliament of the 8th Anne, e. 19 (the then existing Copyright Act), gave copyright in " books or other writings ;" and as written music was unquestionably a writing, it was protected by the Act of Parliament. Whatever difficulties, however, might have existed formerly on the subject of musical copyright, are now removed by the Acts of the 5 & 6 Vict. c. 45, and the 7 & 8 Vict. c. 12,. cl. 19 (1844). The former Act, in clause 2, enacts that the word book shall include, among other things named, a sheet of music; and that the words " dramatic piece " shaU mean "every tragedy, &c., &c., opera, or other scenic, musical, or dramatic entertainment." And by the 20th clause of that Act, the rights given by an earlier statute, as to the performance of tragedies, &c., to the author, are extended to the authors of any dramatic musical composition ; provided that the person so having, under the Act, the sole right of performing, or causing to be performed or repre- (A) 2 Cowper, K. B., 623. 158 THE LAW AS TO INFRINGEMENT OF COPTKIGHT: sented the same (viz., the musical composition), shall register " the title thereof, the name and place of abode of the author thereof, the name and place of abode of tiie proprietor thereof, and the time and place of the first representation thereof." The Act of the "7 & 8 Vict. c. 12,' cl. 19 (1844), enacts, that no author of a book, or dramatic piece, or musical composition, that shaU be first published cut of her Majesty's dominions, shall have copy- right therein, or any exclusive right to the public representation or performance thereof, "otherwise than such as he may be entitied thereto under the Act." This restriction applies, however, only to cases where the publication abroad has been wbere there has been no reciprocity treaty; but where there is such a treaty, and the Queen has made an Order in Council in pursuance of sect. 2 of the Reciprocity Act, the author of a book or any musical work, first published in the country with which there is such a treaty, may acquire copyright in it in this country, provided he complies with the fi)rms and requisites, as to registration and otherwise, which the Act requires. In other words, by force of the statute of 1844, tiie composer who publishes first in France (or any other country witii whom a convMition exists), is placed in exacdy the same position as i^ whether foreigner or Englishman, he had elected to publish first in this country; that is, assuming, of course, that nobody has previoudy made the wcark public in this country. The course of practice for registration in com- tHE LAW AS TO INFRINGEMENT OF COPTRI6HT. 15^ pHance with the law is perfectly well known at the " Stationers' Hall," and there is no difficulty what- ever in complying with the requirements of a formal character of the Acts of PaxUament. It should also be stated that it is now quite settled law, that a foreigner who first publishes his works in England, living- at the time of publication, either in England or in any part of the British Dominions, acquires copyright in this country. That point was decided in the House of Lords in 1868 in a case of Routledfft V. Low (e).. In that ease Lord Cairns and Lord Westbury a^?eed in opinion, that provided the publication takes place first in the United King- dom, it is immaterial where the author -lives, or of whatever State he may be a subject. Lords Cranworth and Chelmsford did not agree in that proposition ; and Lord Colonsay, the only other law lord present, declined to express any opinion, the question not being directly beforethe Court. That pomt^ therefore, remains still imsettled. It is, however^ settled, that if a fin-eiguer has copyright in a foreign country, by the law of that country, an assignment by him to another foreigner, who afterwards comes to this country, and assigns the copyright to B., gives no title to B. For as the original foreign owner &ad no copyright in this country, he could not assign it so as to give a title in this country. As to what constitutes infringement of copyright in music, exposing the alleged infringer to an in- junction, it is presumed that, by analogy to literary (i)3L. R, H.iof L., p. 100. 160 THE LAW AS TO INFRINGEMENT OP COPYEIGHT. copyright, the similarity of a few passages here and there would not justi:fy an injunQtion. But if a substantial and specific portion of melody is found in two works, that is prima facie evidence of piracy {k). In IfAlmaine v. Boosey the plaintiffs were owners of the copyright in an opera called "Lestocq." The defendant had puUished quadrilles and waltzes, arranged by Musard from the airs of " Lestocq," and had imported large portions of the melodies into the quadrilles and waltzes so arranged ; and in one of the waltzes he had introduced seventeen bars in succession, containing the whole of the original air, though he had followed that up by adding fifteen bars not to be found in the original composition. Lord Lyndhurst, who tried the case, said : " It appears to me, that if you take from the composition of an author aU those bars consecutively, which form the entire air or melody, it is a piracy. Though, on the other hand, you might take theni in a different order, broken by the intersection of others (Kke words), in such a manner as should not be a piracy. It must depend upon whether the air taken is substantially the same as the original. Substantially the piracy is, where the appropriated music, though adapted to a different purpose from that of the original, may stiU be recognized. The adding variations makes no difference in the principle." It is apprehended that the rule laid down by Lord Cottenham in Bramwell v. Halcombe (ante, p. 154), would apply as well to musical as to literary (i) JO'Almame v. Boosey, 1 Younge & Col., Exch. in Eq. 288. THE LAW AS TO INFKINGEMENT OP COPYEIGHT. 161 copyright. So that, if A. has copyright in a piece of music, and B. were to publish a piece of music in which he copied the prominent passages of A.'s music; then, although there might be, in addition in B.'s music, a considerable amount of passages not to be found in A.'s composition, yet B.'s work would be held a piracy of A.'s, and lay B. open to an injunction; at least to the extent of an order similar to that made in Lewis y. Fullarton and Sweet V. Maugham, cited ante, p.. 154. The piracy in the case of D^Almaine v. Boosey was, it seems, confined to taking material parts of the melodies ; but the expressions- used by the Court in that case seems to show, that the doctrine there laid down would apply equally to the harmonies; for they form as integral and important a part of the whole composition as the melodies. If a composer writes an opera, or a symphony, or any other musical composition, consisting of or com- prising a sco7-e, either vocal or instrumental, and has acquired copyright in his work, and another person (without leave from the composer) arranges a piano- forte score, or an organ score of the work, that would be piracy of the composer's original work (I). In the case referred to, it was not necessary to decide that point, but the dicta of the two learned judges, Kelly, C. B., and BramweU, B., are positive. But if the original composer of the opera, or other work had no copyright, or, having had copyright, it has expired, or is otherwise invalid, then an arrange- (0 Wood V. Boosey, 3 L. E., Q. B.; see per Kelly, C. B., p. 230, and Bramwell, B., p. 231. 162 THE LAW AS TO INFRINGEMENT OP COPTEI6HT.' ment for the pianoforte or organ by another person would be the subject of copyright; for the arranging a pianoforte score, from a vocal or instrumental score, is a work of skill and thought as well as of time and labour (m). On the question whether an arrangement, say of a symphony being copyright, for five or six or seven instruments (omitting, of course, many of the in- struments forming a full cwchestral band) would be infringement of the copyright of the composer of the symphony, is a question on which I am not aware of any direct authority ^^ Such an arrange- ment would, however, necessarily involve copying all the original melodies, and a considerable portion of the harmonies — ^the latter, it is true, somewhat thinned and emasculated.. And such a case would, it is conceived,, fall -within the doctrine of Bramwelt v. Halcombe and Wood v. Boosey.^ There might, however, be room for much argument on both sides. (j») Tf/MxJfT. Moogey,^eiiot^ oited. < 163 ) Sect. XHI.— INJUNCTIONS TO PROTECT TRADE MARKS. No. 27. — Action to restrain Infringement of Trade Marks. (See Raggett v. Findlater, 17 L. K., Eq. 29.) [Title.]; Between A B PlaintiflF, and C. D. and E. F Defendants. 1. The plaintiff has for years and upwards carried on the trade and business of a brewer at , and during that period he has manufactured " stout" by a secret process, and such stout has aec[uired and for many years has had celebrity under the plaintiff's trade mark or designation of " Nourish- ing LoDjdon Stout" 2. Thfr plaintiff duly registered, in the month of , in the year ^ a label, under which he has sold such stout as above mentioned, and his bottles have borne and bear such labels as aforesaid. 3. The said labels have printed upon them the words " Nourishing Stout," and are laid round the bottles, and in the centre part of the said labels there are the names of the plaintiff and of his predecessor in the business, and the words " Analyzed and reported on by Dr. ." 4. The defendants (also brewers) have for some time past, viz., since the of , held themselves oat as selling " Nourishing Stout," and have lately attached to their bottles labels containing the following words, viz., "Nourishiftig Stout, bottled by Findlater, Mackie & Co., of 16, Prince Albert Streiet, Brighton," and they have sold large quantities of stout in bottles labelled as aforesaid. 5. The defendants in using the words " nourishing stoat " 164 FORMS OF CLAIMS AND DEFENCES. have infringed the plaintifif's trade mark, and many persons have been misled by the defendants using the said words, and have bought considerable quantities of the defendants' stout, believing it to be stout of the plaintiff's manufacture. The plaintiff claims : — 1. That the defendants may be restrained by injunction from using on. their labels the words " nourishing stout," or in any other-manner describing their beer by the term " nourishing stout." 2. That an account may be taken of the profits made by the defendants, by selling stout in bottles with labels using the words " nourishing stout," and that such profits may be ordered to be paid by the defendants to the plaintiff. 3. Such further or other, &c. [Title.] ^ Statement of D.efbnce. 1. The defendants admit the truth of the statements in paragraphs 1, 2'and 3 of the plaintiff's claim. 2. In ^ answer to paragraph 4 of the plaintiff's claim, the defendants say that for a long time before they commenced manufacturing stout, they manufactured and sold ale under the title of " Dinner Ale." That in the year they began to manufacture and sell stout, and designated or de- scribed it for some time- in the labels put on their bottles, merely by the words "Nourishing Stout." Tn the year they altered their labels, and designated their stout on the labels attached to their bottles as " Nourishing Stout, bottled by Findlater, Mackie & Co., of 16, Prince Albert Street, Brighton." 3. To the best of the defendants' knowledge and belief, so much of paragraph 5 of the plaintiff's claim, as alleges that persons have been misled by the defendants' user of the words "Nourishing Stout" on their labels coupled with such other words as aforesaid, is not true. ,4. The word " nourishing " was used by many brewers on INJUNCTIONS TO PROTECT TRADE MARKS. 16.5 the labels of their bottles of stout, long before the plaintiff began to use the words " nourishing stout." 6. The defendants admit that they have made profits by the sale of stout bearing the labels described in paragraph 2 of this their answer; and they submit that they are entitled to retain such profits, and have full right to use on their labels the language referred to in paragraph 2 of this their answer. Replt. The plaintiff joins issue on the defence set up in pai-a- graphs 2, 3, 4 and 5 of the defendants' statement of defence. No. 28. — Action to restrain Infringement of Trade Marks. (See Harrison v. Taylor, 11 Jnr., N. S. 408.) [Title.] Between A. and B Plaintiffs, and C. and D Defendants. Statement of Claiii. 1. The plaintiffs are manufacturers of and wholesale dealers in mustard. In the year they adopted and have ever since continued to use down to the present time for their trade mark, the figure of an " ox," on the flank of which figure is printed the word " Durham," the names of the plaintiffs being printed above the word " Durham," and the word " Mustard " below that word. 2. In the beginning of the year the defendants, who are also mustard manufacturers, affixed to their canisters of mustard, labels containing as their trade mark the figure of an " ox," in form and attitude like that of the ox on the plaintiffs' labels^ and have sold canisters of mustard so labelled. 3. The plaintiffs' mustard is known in the trade as " the ox mustard," and persons have frequently asked at shops where the mustard made by the defendants is sold, for the " ox 166 FORMS OP CLAIMS AND DEFENCES. mustafd," meaning by that term, mustard made by the plaiif- tifFs ; and such persons have been served with mustard made by the defendants, believing it to be mustard of the plaintiffs' make, and the plaintiffi have been thus injured in their trade. The plaintiffs claim : — ' 1. An injunction restraining the defendants from using on their labels the figure of an ox, or in any other way imitating the plaintiffs' trade mark. 2. Damages for injury done to the plaintiffs' trade by the defendants imitating, as a&resaid, the plaintiffs' trade mark. 3. Such further, &c. [Title.l Statement op Dbpbhcb. 1. The defendants admit the truth of paragraph 1 of the plaintiffs' statement of claim. 2. Until the year the defendants did not know, and in fact had never heard of the alleged user by the plaintiffs as their trade mark, of the figure of an ox with the word " Durham" on the flank of the ox. Long before that date, viz., firom the early part of the year , the defendants had used the figure of an ox as their own trade mark, and the ox on the defendants' labels, is of a different colom* from that of the plaintiffs' ox. The defendants do not now and never did put the word " Durham " on their labels, and they have always put and do now put their own names in full on their labels; so that no person using the most ordinary amount of eyesight and observation, could possibly mistake the defendants' trade mark for the plaintiffs'. To the best of the defendants' infor- mation and belief, nO person has ever bought the defendants' mustard believing it to be the plaintiffs'. And the defendants submit to the Court that upon the facts above stated they have not infiinged the plaintiffs' trade mark. Reply. The pl^iti& join issue, &c.^ NOTE AS TO INFRINGEMENT OF TRADE MARKS. 167 The Courts of the Chancery Division will restrain infringement of trade marks. The doctrine of this jurisdiction is, according to the older authorities, ■wholly founded on this: that to infringe a trade mark is a double /r a wrf; fraud as against the public, by the infringer inducing the public to buy hi.i goods, while they believe thatf they are buying another man's goods; and fraud as against the original framer or inventor of the trade mark, by, in feet, stealing his reputation. Under the older authorities, the notion of there being an actual right of property in a trade mark was never even ventilatedi(a). But in a case of The Leather^ Cloth Company v. The American Leather Cloth Company {b), Lord Westbury, admitting that "there is no exclusive riglit of ownership in the symbols which constitute a trade mark, apart from the use or application of ihem," went on to say, " the true principle, therefore, seems to be, that the jurisdiction of the Court, in the protection given to trade marks, is founded upon property." How a jurisdictioffl. can be founded on a right of property, when there is no ownership of that which is the basis of the alleged property, is rather a puzzle to minds not so astute as that of Lord Westbury. However, whether his Lordship was right in that view, or whether Lord Hatherley (then V.-C.) was (a) See the cases collected in Drewty on Injunctions, part ii. <;ibap. iv. sects. 4 and 5. ' (J) 33 L. J., N. S., Cli. 199. 168 NOTE AS TO INFRINGEMENT OF TRADE MARKS. right in the same case (c), in saying, " All the cases of trade mark turn, not upon a question oi property, but upon this : whether the act of the defendant is such as to hold out his goods as those of the plain- tiff," seems immaterial, except for the purpose of keeping in harmony with the doctrine, that equity does not in general interfere, except for the purpose of protecting property. For this, at any rate, is settled, that equity does interfere to protect the per- son who has acquired a reputation in the market, for goods marked with a specific mark, against having that trade mark copied. It is hardly requisite to say, that where the imita- tion is actually fraudulent, viz., where the defendant has knowingly copied the plaintiff's trade mark, an injunction will lie (<£). But the jurisdiction has been extended further, to cases where the defendant had no knowledge of the fact of the plaintiff using any particular trade mark (e). The ease of Millington r. Fox seems, therefore, rather in accordance with the doctrine pf the Leather Cloth Company's case; as there was no fraud on the part of the defendant in Millington v. Fox; and therefore, unless the plaintiff's right was a right of property, it is difficult to see what right he had. In the case of Harrison v. Taylor, the trade mark adopted by the plaintiff, a mustard manufac- turer, was the figure of an ox, on the flank of which (c) See 1 Hem. & Mil. 271, and p. 287. id) Knott v. Morgan, 2 Keen, 213. (e) Millington v. Fox, 3 My. & Cr. 388 ; and see Harrison T. Taylor, 11 Jnr., N. S. 408. NOTE AS TO INFRINGEMENT OF TRADE MARKS. 169 the word Durham was printed; the name of the plaintiff was printed above the figure of the ox ; and the word mustard below it. The defendant was also a mustard manufacturer, and his trade mark was also an ox. He did not use the word Durham, and his own name, Taylor, was printed below. It was proved that the defendant did not know of the plaintiff's trade mark when he adopted the "ox" as his own. There was no evidence to show that any one had been deceived and had bought the defendant's mustard, believing it to be the plaintiff's. But the Court, noticing that it was immaterial whether the defendant knew of the plaintiff's trade mark or not, held that the defendant's trade mark was an infringe- ment of the plaintiff's, and granted an injunction. TaMng the -aiiathority of these cases {Miliinffton V. Fox and Harrison v, Taylor), it may be con- sidered as settled law, that if A. has a definite tra,de mark, and B. uses a trade mark (with or without knowledge of A.'s trade mark) similar to that of A. ; that is infi:ingement which will be restrained by an injunction, even though there may be adjuncts to the trade mark, which, if looked at with anything like care, would or might show to the purchaser, that when he purchased B.'s goods he was not purchasing the goods sold by A. When a trade mark is visibly copied, there can, of course, be no question. The difficulty arises mostly where there is some approximation or simi- larity, but there are also some differences between the plaintiff's and the defendant's marks. In such cases, where the trade mark alleged to be D. I 170 NOTE AS TO INFRINGEMENT OF TBADE MARKS. an infringement, approximates to the original trade mark, -and yet is not quite similar to it, so that it miffht Aeaeivre, but would not necessarily deceive the public; the Court is apt to infer some fraudulent intention on the part of the. defendant,, on this ground; that if he did not intend imitation injurious to the plaintiff, he should have taken the reasonable coiu:ae of adopting a totally different trade mark, and then there could not have been any 'mistake. It is not absolutely essential in a trade mark case, to show that anybody has actually been deceived; it is sufficient to show that the public may be deceived. This doctrine seems only to apply to a ease where the defendant had knowledge of the plaintiff's trade maik, before he adopted his own. The very large amount of disracetion, however, appEed by Judges in eases of trade marks, renders it very difficult to collect any positive rule ; and a reference to a few of the more recent cases, will throw light upon the distinc- tions observed in the exercise of this branch of equity jurisdiction. la Ainsworth v. Walmdey (/), the decision turned upon a complicated state of facts, and in- volved no definite principle; but it was disfinetly laid down in that case, that a man's own name, affixed to goods sold by him, is as much a sabject of trade mark as any fencifiil mark {g). The use of the word " patent " as part of the description on the labels of goods not actually the (/) 1 L. B., Eq. 5re. (g) See p. 525 of the judgment, and see Dent'y. Twgin, 2 John. St Him 139. NOTE AS TO INFKINGfEMENT OT TEAEIE BIAKKS, 171 subject of a patent, m(iy operate as a vaKd ttade mark ; provided there is no actual deception of the puhlic as to there being a paterft (&).. In the case referred to, it was proved that thread called by the plaintiff Patent thread, had been fenown by that name in the trade; and that the words "patent thread " metdy indicated a CCTtaia class of thread, and were so understood by the public. So in another case, it was' held, that the inventor of a new sauce (not holding a patent for it), and designating it on his wrappers as "The Original Beading Sauce," had an exclusive right to use that designation {€), The plaintiff in that case was the original inventor or compounder of a sauce eallsd " Reading Sauce," and on his labels were the. words- " The Original Reading Sauce." The defendant was restrained from using the same ^words', althoHgh he put his own name on his wrappets. This case goes, indeed, a great length, becaiuse both the plaintiff and the defendant put theiir own names on the sauce they sold ; and it is difficult to conceive how any one couM nnstalce good* marked '^Chandler §- Co.'s Original Reading Sauce,"' fo* goods marked " Charles CocKs Original Reading Sauce," Raffffeit\. Findlafer (A) shows the distinctions' to be considered, in determining the extent to which the jurisdiction in respect of trade marks wil be carried, and beyond whieh it will not extendi In (S) ManhaU v. Mos>, »!,. E, Eq. 651. (i) Goeks T. Chandler, 11 L. E.,Ea. 446. (S) 17 L. E., Eq. 29. i2 172 NOTE AS TO INFRINGEMENT OF TRADE MARKS. that case, the plaintiff carrying on business as a brewer, manufactured stout under a particular method or process, and his stout had for many years acquired celebrity under the designation of " Nourishing London Stout." He had adopted and registered a label, under which the stout was sold, such label having the words "Nourishing Stout" round the circumference of the bottle, and in the centre the words, " Eaggett, late Bloekey. Analyzed and reported on by Dr. HassaJl." The defendants held thefmselves out as selling "nourishing stout," and afterwards attached to their bottles the words, " Nourishing Stmit, bottled by Findlater, Mackie & Co., 16, Prince Albert Street, Brighton." Their labels were of an oval shape. In fact, their labels wei-e similar to the labels they had long used for their dinner ale ; the difference beiag only the substitution of " Nourishing Stout " for " Dinner Ale," and it appeared that the word "nourishing" had been previously -used by other vendors of stout. It is not stated in the Report that any person had ever been deceived, and bought " Findlater & • Mackie's" stout, believing it to be "Raggett's" stout, and the bill was dismissed with costs; the Court delivering an elaborate judgment, iii which a considerable number of cases on the subject were considered and analyzed. If the agents of a foreign house of business receive goods from the consignors, which bear a brand being an infringement of the trade mark of another person, and knowing that there is such infringement, take NOTE AS TO INFRINGEMENT OF TKADE MARKS. 173 steps to forward the goods ; they will be liable to an injunction restraining them from so forwarding the goods, and to pay the costs of the suit, although they may make no other gain than that of mere agents. But if, on being informed of the fact of the goods being an infringement, by the owners of the trade mark, they at once inform their consignors, and do not forward the gpods, they will not be made to pay costs (Z). The case referred to is somewhat complicated as to its facts, but the above is the substance of the decision. In Radde . v. Norman ('?n) it was held that the name of the place where originally an article of commerce was discovered, may be or become a trade mark, which the Court wiU protect.. In that case the material sold, by the plaintiffs was a. crude .or native salt called "kainit," discovered in 1859 at " LeopoldshaH," in the Duchy of Anhalt. The plaintiffs first sold.it as the genuine kanit. Spurious imitations were attempted, and the plaintiffs then adopted for it the name of " LeopoldshaU " for the kanit sold by them. The defendants sold kanit under the following title, "kainit LeopoldshallJ' The only real question was, coidd the use of that name constitute a trade mark ; and, as above stated^ Wickens, V.-C, held that it could. It has been before staled as quite settled,.that it is no defence to a bill for infringement of a trade mark, to say that the def^dant adopted the trade mark. (V) Upman v. Elkann, 12 L. Eep., Eq. 140. (m) 14 L. Eep., Eq. 348. 174 NOTE AS TO ESFRIimEMEIfT OF TRADE MARKS. iwithout knowing that it already belonged to the plaintiff (»). In Cope Y. Evans, the plaintiflfe, cagar manirfac- turers, had adapted as their trade mark the words "Flor fina Prairie Superior Tabac." This brand was stei(Biped upon thieir cigar boxra. The defendants stamped on one end of their boxes the words, " Flor de k PraJrie," and on the other end the words " de superior Tabac." The evidence on the ;part of the plaimtiffi was, that purchasers would probably be led into mis- taking the defendants' boxes for the plaintiffs'. The defendants produced eyidenoe -to show that no one fiould possibly be mistaken, and there was no evidence that aay one had ever been actually mistaken. Hall, V.-C, .after a rrferenee to several authoritieB, con- cluded thus : " From these judgments, I take the law of the Caurt to be, that it will not grant an injunction, unless it is satisfied that there will be dieceptian ; jor, in Lord Kingsdown's words (o\ that what the defendant does is calculated to mislead. In this case, I am not so satisfied; the burden of proof is on the plaintiffs, there being no proof of actual deception, and no proof that the defendants' algect was deception." Amd the bill was dismissed with costs. The above selection of authorities from a very <;^) See €ope v. Eiane, 18 L. R., Eq. 138^ and see perCnr. j^. 143, 144, anil Harnton t. Taylor, cited ante, p. 168. (o ) Leather Cloth Company v. American Leather Cloth Com- pany, 11 H. of L. C; 523 ; see p. 542. KOTE AS TO INFRINGEMENT OF TRADE MARKS. 175 large number, is sufficient for the dimensions and scope of this elementary work (^). From the authorities here cited, and many others, it is submitted that the following conclusions may, cum grano, be deduced : — 1 . That whether the jurisdiction of equity in re- spect of trade marks is founded on a right oi property or on fraud, or on both ; there is in- a trade mark a right of some kind,, which will be protected by in- junction. 2. That if the imitation of a trade mark is know- ingly, that hsfraudulendy, made, it is clear that the infringeinent will be repressed by injunction. 3. That to justify an injunction, it must either be obviously apparent that there is-a degree of similarity which may mislead, or there must be actual proof that persons have been misled. 4. That even if a trade mark is not actual property in the wide and ordinary sense of the word, it is so far in the nature of property,, that it is no defence df infringement, to show that tiie defendant took the particular trade mark, without knowledge of its adop- tion and use by the plaintiff. And lastly, that if the trade mark of the defendant approaches to any considerable extent the plaintiff's, but the two things are also to some extent different, (the defendant having knowledge of the plaintiff's trade mark when he formed his own), the circum- stance that he so approached the plaintiff's mark. (_p) For more minute information, see " Ludlow & Jenkyns on Trade Marks, 1873." 176 NOTE AS TO INFEINGEMENT OF TRADE MARKS. instead of taking a totally different mark, is a ground for material suspicion of fraudulent intention. The Act of the 38 & 39 Vict. c. 91 (1875), for establishing a Eegister of Trade Marks (to come into operation on the 1st Jioly, 1876), does not appear to alter the existing law as to what constitutes a trade mark, or what amounts to infringement of a trade mark. In clause 10, the definitions of a trade mark for the purposes of the Act, are as follows : — "A trade mark consists of one or more of the following essential particulars, that is to say, — " A name of an individual or firm, printed, impressed or woven in some particular and distinctive manner; or " A written signature or copy of a written sig- nature of an individual or firm ; or " A distinctive device, mark, heading, label or ticket: And there may be added to any one or more of the said particulars, any letters, words or figures, or combination of letters, words or figures ; also, " Any special and distinctive word or words, or combination of figures and letters, used as a trade mark before the passing of the Act, may be registered as such under the Act." On comparing the above definitions with the descriptions of trade marks contained in the cases referred to ante, it is submitted that the authorities are, as regards what is a trade mark, generally consistent with the definitions given by the Act. NOTE AS TO INFRINGEMENT OF TRADE MARKS. 177 The Act does not, however, solve the question, still somewhat doubtful under the authorities, viz.:, whether a trade mark is or is not actual property ? That question is, perhaps, not very important, sincei whatever may be the true legal quality of a trade mark, it is quite settled that infringement of it is unlawful both at law and in equity. Clause 1 establishes a register of trade marks, and declares that "from and after the 1st of Jtdy, 1876, a person shall not be entitled to institute any proceeding to prevent t/ie infringement of any trade mark as defined by this Act, until and unless such trade mark is registered in pursuance of this Act." If the language of this clause is- construed strictly, it would seem that though an action for an injunction to restrain infringement of a trade mark cannot liCj if the trade mark is not registered, it is- at least a- question, whether an action- for damages for past infringement is equally excluded. For an action for damages is not, strictiy speaking, a proceeding to prevent infringement; but an action for compensa- tion for past infringement. It is possible, however, that the Coiurts may put a large and liberal con- struction upon the language of the clause, and hold that damages for a past injury operate in substance, though indirectly, as a preventive against fiiture in- fiingement. Clause 2 directs that a trade mark must be regis- tered as belonging to particular goods or classes of goods ; and, when registered, shall be assigned and transmitted only in connection with the goodwill of the business concerned in such particular- goods or i5 J7!8 JfOTB A$ TO WFEIKGEMENT OF TRADE MARKS; classes ef g«od«, and «liall be determinable wiA such Clause 3. Registration is to be prima facie evi- deme of the right of the party roistering to the exebtsipe use of eueh trade mark ; and, after five years, is to be conclusive evidence of Ws right to the exclusive use of the trade mark. Clause 6 seems to give, in effect, to. the registrar a judicial power, to determine what is and what is not infiingeme»t ; for it declares that he shall not register with, respect to the same goods or- classes of goods, a trade maris so nearly resembling a trade maris already on the register, vrith respect to such g said.letters patent are bad and void in law. E-Title.]': Eeply. The plaiutifls submit to the Court, that, upon-tlie true con- sti'netion of the specification of the said letters patent granted to X. and assigned as aforesaid to the plaintiffs,, the said specification does not describe two distinct processes ; but does describe one process consisting of mixing aniline and dry arsenic acid, and subjecting the said combination afterwards tii the heating process described; and that the said letters patent and specificatioR are good aild^yaHd in lawv. No.. 32. . (See Curtis v. Piatt, 11 L. T.„N, S..245.), [Title.] Between A. B. and' C. Plaintiffs, and B. F. and &. Defendants. ST.A.TEMENT OF ClAIU. 1. On the day of , in the year , her Majesty's letters patent were duly granted to X. "for improvements in certain machines for spinning and doubling cotton and other fibrous substances of the kinds commonly known as mules and twiners." The said invention was and is a new and useful invention and manufacture within this realm. On the day of in the aforesaid year, the said X. duly filed and lodged in the proper office, a complete specification of his said invention, accompanied by drawings, and has duly per- formed all the conditions required by the -said letters patent) ACTIONS AS TO I.ETTEES PATENT. 185 and became lawfully possessed of and entitled to the sole ub& of his said invention. 2. By an indenture of assignment made and duly executed on the , day of , in the year , the said letters patent, and all the rights of the said X. thereunder, were, for the consideration therein expressed, assigned to the said plaintiffs, who are now the sole and absolute owners of the said letters patent and invention ; and the plaintiffs have, since the date of the said assignment, used and continue to use, the said invention, and to manufacture mules made according to the said invention. 3. The said invention consists of a. new eombination of parts, viz., of a clutch-box, a pin, inclines, and a spring, as shown by the aforesaid specification and the drawings thereto annexed ; by virtue of which combination, when the mule is set in motion by well known mechanical means, certain pauses er breaks are made at regular intervals in the rotation of the cam shaft, ia a novel manner. 4. In the month of of the present year and not before, the plaintiffs discoivered, as the fact is, that the defendants were ma,king and iising a combination ©f parts exactly the same as the combination of the plaintiffs, viz., a clutch-box, a pin, inelines, and a spring ; and applying tlie said combination to the same purposes as those to whieb the plaintiffs apply the combination patented by X., viz., to make similar pauses and breaks in the rotation of the cam shaft. 5. The plaintiffs have applied to and required the defendants to desist fi'om continuing to make and use such combination of mechanism in infringement of the said letters patent, granted to X., 'and assigned as aforesaid to the plaintiffs; but the defendants have refused to accede to such requests, and con- tinue to use the said combination and to apply the same to spinning mules. And by such user of the said combination, the defendants have made large profits. The plaintiffs claim : — 1. An injunction restraining the defendants from manu- factiiring and using the said combination described ,186 FORMS OF CLAIMS AND DEFENCES. in the speeificatian of the letters patent vested as aforesaid in the plaintiffs; and from otherwise in any manner infringing the said letters patent and inven- tion of X. 2. An account of profits, &c, (as in preceding forms). 3. Such further or other, &.c.. [Titfe] Statement of Dbpbkcb;. 1. The defendants, not denying the truth of the plaintiffs' statements in paragraphs 1, 2 and 3 of theiir claim, say, that the specification of the patent gramted toXl and the drawings thereto annexed describe mechanism composed of elements all separately perfectly well known, viz., a clutch-box, a pin, inclines and a spriag; all which mechanism is set in motion by well-known means.. The defendants adteit that they use the same well-known mechanics^ implements, viz., a clutch- box, a pin, inelines and', a spring. But the defendants arrange the said implements intheir mechanism, in>an order different from that adopted by the plaintiffi under the said letters patent granted to X. The inclines used in X.'s patent, are placed at the two ends of a vertical plate, suspended upon the cam shaft, and the pin? is acted upon by those two inclines. The defendants, on the other hand, place their inclines upon a circular disk, which, in its circular motion, is acted upon by the pin sO' as at intervals to stop, and then again release the motion of the disk. The result is, that whereas by the contrivance adopted by X. only two. actions of the pin can take place during one revolution of the cam shaft; by the defendant's arrangements of the parts, he can produce the relative action of the pin and inclines, four or more times (if need be) during each revolution of the cam shaft. And the defendants submit to the Court, that the right and title of the plaintiffs are confined to the particular order and combination of the aforesaid well-known implements which they have adopted; and that the defendants, in using the particular ACTIOSrS AS TO LETTERS PATENT. 187 combination and order of the said implements, different from the order and combination used by the plaintiffs, have not infringed and do not infringe the plaintiffs' said letters patent. " Kkplt. The plaintiffs submit to the Court, that the difference be- tween the plaintiffs' arrangement of the elements, of their said combination and' the defendants' arrangement, is not a substantial variation, but is a colom-able imitation ; and that the defendants have in feet Infringed the plaintiffs' patent. No. 33. (See Parkes «. Stevens, g L. E., Eq.358.) [Title.] Between A. B. Plaintiff, and CD Defendant. StATEMEKT op CJ.AIM. t. The plaintiff obtained on the day of . , in the year , her Majesty's letters patent for "certain im- provements in the manufacture of railway station and other • lamps." He has duly filed in the proper office a complete specification of his invention, and the said letters patent are good and valid in the law and well vested in the plaintiff. 2. A material part of the plaintiff's invention, consists in the applicaiion of a sliding door to his patent lamps ; the construction and arrangement of which sliding door, is par- ticularly described in the plaintiff's specifieation in the passage commencing with the words " the top ring" (line ) and ending with the words " in opening or closing the said door." The application of the said sliding door, had not been nsed before the date of the plaintiff's letters patent. 3. The defendant has conetructed and sold, and continues to construct and sell lamps with revolving or sliding doors, and in so using such sliding or revolving doors, the defendant has infringed and is infringing the plaintiff's letters patent. 188 FORMS OF CLAIMS AND DEFENCES. 4. The, plaintiff lias applied to and required the defendant to desist from infringing the plaintiff's patent, but the de- fendant has refused to comply with the plaintiff' s said demand, and continues to make and use lamps having such sliding or revolving doors, connected with and as part of the lamps constructed by him. The plaintiff claims : — 1. An injunction resti-aimng the defendant from further infringing the plaintiff's said letters patent and in- vention in manner aforesaid. 2. Damages for the injury, done to the plaintiff by such infringement as aforesaid of the plaintiff's patent by the defendant. 3. Such further, &c. f [Title.l Statesient of Defence. 1. The plaintiff's invention is not new in any one of its separate parts or conformation; and the defendant himself does not by his specification claim any particular part of the lamp patented by him, smd cMius only the arrangement and combination, of the parts described and represented in the drawings annexed to the specification. 2. X^e sliding door used by the plaintiff and used also by the defendant, is not new. It was known and' in use long before the date of the plaintiff's patent. 3. Even if the said sliding door can be proved' to be new, it forms but a small part of the plaintiff's whole combination of parts ; and the defendant submits to tlie Court that, having regard to the facts above stated and <» the terms of the plain- tiff's specification, the defendant has not infringed the plain- tiff's letters patent. Reply. The plaintiff joins issue, &c. ACTIONS AS TO LETTEES PATENT. 189 No. 34. — Forms of Issues on the Trial of a Patent Case. 1. Whether, at the date of the letters patent in the pleadings mentioned, granted to the plaintiff, the invention for which the same were granted, was a new invention within this realm. 2. Whether, at the date of the said letters, patent, the said invention was ^-ay manner of new manufotctwre within the statute in that behalf made and provided. 3. Whether the grantee of the said letters patent did by his specification, in the- pleadings mentioned, particularly describe and ascertain the nature of the said invention, and how and in what manner the same is to he performed. 4. Whether the said invention is oi &v:y-v,tilityto thepu'blic. 5. Whether the defendant has infringed the privileges granted by the said Jetters patent. No. 35. — jAnother Form of Issues. 1. Whether the letters patent in the plaintiff's claim and statement mentioned are "good, valid and subsisting letters patent in the law.'' 2. Whether the defendant has infringed the privileges granted by the said letters patent (af). (a) The form No. 34 is the form hitherto generally used in the trial of patent cases. The form No. 35 is proposed as a sufficient and proper form, under the regulations and expressed intent of the Judicature Acts, with reference to conciseness in pleadings. The object of the issues is, of course, to place before the Court what is the question in dispute, and to lay a foundation for the contentions on both sides. The first four issues in No. 34 used hitherto, seem (it is submitted) to involve tad be reducible to the single qnestioh, "whether the patent is vailid ?" For, if either of the four issues referred to in form No. 34 is answered in the negative, the patent fails. There maybe a specification, per ««,^oo«i and sufficient, and the invention may be new, and it may be useful. But, if it is not also a mami- faetwe, it will fail to support a patent. So, with regard to failure in meeting any one (tf the f onr propoxita ; if the invention fails to meet any one of thetti, the patent fails in toto. It is therefore submitted, that although the length of the four 190 FORMS OF CLAIMS AJfD DEFENCES. No. 36. — Form of Breaches of his Rights, complained of by the Plaintiff. Where the complaint is that the defendant has taken and imitated the whole invention, the notice of breaches may be as follows : — The breaches complained of by the plaintiff are, the using and vending by the defendant, of the invention in this cause nientioned, and described in the specification thereof, and the plans and drawings thereto annexed. No. 37. — Where only a part of the Invention has been tahen by the Defendant. The breaches complained of by the plaintiff are, the using and vending by the defendant, of «o much of the plaintiff's invention as is described in the plaintiff's specification, com- mencing with, the -words and ending with the words ^ and . claimed in the specification in the lines com- mencing with the words and ending with the words No. 38. — Form of Objections on behalf of the Defendwni, where the Defendant relies upon earlier Patents, as showing want of Novelty in the Plaintiff's In- venHon. The pJacintiff's alleged invention isi amtieipated in a patent granted to A. B., dated the day of , in the year , and numbered ;, and in another patent granted to C. D., dated the day of , in the year , and numbered distinct issues, usually tried under the defunct system of pleading, is not very great, yet, the form No. 35 is more in the spirit of the recent Acts of the Legislature, and will meet all the requirements of a patent cause; since, as above observed, if an invention fails either in ncrceXty or in utitity, or in being, a manufactn're,. or in. being pmperty described in the specification,, it fails in toto, and is not a. " good, valid and subsisting patent." ACTIONS AS TO LETTEBS PATENT. 191 Ifd. 39. — Where the Defendant relies on prior user, not under a Patent. Mechanism similar to that for which the plaintiff has obtained his letters patent, was well known before the date of the said patent, and was publicly used by several persons, viz., by A. B., in the year , at his factoiy, in the town of , and by C. D., who manufactured and sold at his factory, at ) in the year , a considerable number of machines similar to the machines which ai-e the subject of llie plaintiff's patent (6). " No. 40. — Form of Appeal by a Plaintiff from the find- ing of a Jury and the Decree or Order of the Court of first instance. Where tte caUse has been tried with a jtiry : — In Her Majesty's Court of Appeal. Between A. B. Plaintiff, and CD. Defendant. Take notice, that this Honourable Court will be moved by way of appeal before their lordships on the day of by the plaintiff, that their liordships will be pleased to declare that the findings of the j«ry on the day of in this cause on the issues, amd the consequential order of his Lordship (the V.-C. or M. R.) ought not to have been for and in favour of the defendant, but ought to have been in favour of the (appellant) ; and that their Lordships will be pleased to reverse the said findings of the jury and the said order of his lordship (V.-C. or M. E.), and to order and direct that a cer- tificate may be entered up and issued in this cause, upon the ( V) The objections as to novelty, made by a defendant, neceesarilj- vary so much, that it would be useless to multiply forms. The general rule is, that the defendant mast give snch an account of the alleged anticipation of the plaintiff's patent, as will enable the plaintiff to inquire into the truth and substantiality of the objections. 192 FORMS OF CLAIMS AND DEFENCES. said issues, in the affirmative for (the appellant) ; or that their Lordships will be pleased to make such further or other order as to their Lordships shall seem fit and proper. No. 41. — Another Form of Appeal. Where the trial has been without a jury, the fol- lowing form is suggested: — In Her Majesty's Court of Appeal. Between A. B Plaintiff, and CD Defendant. Take notice, that this Honourable Court will be moved by way of appeal and rehearing before their Lordships on by (the appellant), that their Lordships will be pleased to reverse the findings of his Lordship (the'V.-C. or M. E.) on the issues in this cause, and the order made thereupon by his Lordship ; and that their Lordships will be pleased to make a decree or order in favour of the (appellant), or that their Lordships will be pleased td make such further or other order in this cause as to theii- Lordships shall seem fit and proper. THE JUEISDICTION OF EQUITY AS TO PATENTS. 193 The jurisdiction of Courts of the Chancery Divi- sion to restrain infringement of patents is, Kke the jurisdiction in cases of nuisance, based on the assumption that the plaiatiiF has a legal right; and^ before the 25 & 26 Vict. c. 42 (1862), the Court of Chancery having no power to tiy the legal title of a patentee, usually took, on motions for injunctions to restrain infringement, according to the circumstances of the case, one or other of the following -courses. Sometimes, but very rarely, the Court would grant an injunction at once. That, however, was a course hardly ever taken, if the defendant raised a fair question as to the validity of the plaintiff's title, or as to the fact of infringement: the most usual course was, either . to grant an interlocutory injunction, putting the plaintiff on terms to bring an action at law ; or, what was more frequent, to suspend the in-, junction till the plaintiff had established his title at law; putting the defendant, in the interval, on terms to keep an account (a). Before the statute of 1862 above referred to, a trial of a patent cause throughout in equity, was almost unknown ; in fact, it could not be tried satisfa.ctorily, if the validity of the patent was put in issue ; a course almost always taken by the defendant. But an interim injunction would be granted if there had (ff) See on this Bacon v. Jones, 4 Myl. & Cr. 433; and Drewry on Injunctions, chap, iii., p^ 220 et seg. D, K 194 THE JURI8BIOTION OP EQUITY AS TO PATENTS. been long \ undisturbed possession, still putting the plaintiff on terms to bring an action at law. Under the Act of 1862, tlie Courts of Equity ac- quired ample jurisdiction to try tbe legal title of a patentee, as well as the question of infringement; and as a consequence of that Act, patent causes have been since very frequently tried in chancery from the beginning to the end of the Htigation, without -tiny resort whatever to a court of law. But in so trying pa,terit causes, equity has still always adopted and followed the laW, as to the legal right and title of the patentee. The 'practice, however, of the Court a-s to granting or reftising an injunction, does not now materially differ from the practice before tite Act of 1862, with this exception ; that as the Court has power to try the cause, at a reasonably early period- after the com- 'inencement of the litigation, it requires a very strong case of proved injujcy to the plaintiff, to obtain an injunction before the trial has tsken place. If, on the trial, the plaintiff establishes his legal right and the fact of infringement, then a perpetual injunction will be granted. If, on the other hand, the plaintiff fails on either of the above points, the bill (now the claim) would be dismissed. The usual course on the trial of a patent cause in equity was as follows: and there does not appear to be anything in the Judicature Acts, which alters the course of procedure, except as to the form of plead- ing, &c. The plaintiff, after filing his biU (now his claim), may wait for the coming in of the defence, before THE JUEISDICTIOIT OIF EQUITY AS TO PATENTS. 195 taking any fuxther step ; or he may more at once for an injiiHction upon affidavits, b^re the statement of defence has come in. If the latter course is taken, and the defendant raises questions as to the plain- tiff's legal right, or disputes the fact of infringement, or takes both courses; then the Court usually orders the motion to stand over till after the trial of the cause, and directs the plaintiff to giye notice within a given time, of the specific breaches of his right, of which he complains; and at the same time orders the defendant, within a given time after receiving notice of the breaches, to serve on the plaintiff a notice of his, the defendant's, objeetioms to the plain- tiff's claim. When the proceedings are so far completed, the Court wUl, on the application of either party, fix a time for the trial, and direct what issues ^re to be tried. The trial may take place either with or without a jury. If both parties agree in desiring a jury, the Court will in general allow a jury; but it is in the power of the Court to refiise a jury. That point is settled by the two cases of Bovill v. Hitchcock (S) and Patent Marine Inventions Company v. Chad- burn (c). Most frequently the parties agree to dis- pense with a jury, for the very sound reasons given by Lord Selborne, in the case of the "Patent Marine Inventions Compaaiy." The trial of a patent cause in equity has been most frequently, upon oral evidence in Court. But it (J) 3 L. R., Ch. Ap. 417. Ic) 21 W. H. 745. k2 196 THK JURISDICTION OF EQUITY AS TO PATENTS. might be tried, if the parties agreed, upon affidavits, the Judge consenting. The latter mode of trial is, however, not' in general to be recommended; and the Judicature Acts do not appear to alter this (see Order 37, sect. 1 of Sched. 1 of the Act of 1875), subject to the proviso at the end of that order. The notice of breaches given by -the plaintiff, should (according to the practice") state definitely when, where, and how, the defendant is alleged to have infringed the plaintiff's patent; and the ob- jections delivered by the defendant must with equal definiteness state the particular grounds, on which he, the defendant, -challenges the validity of the patent, or means to contend that there is no infringe- ment. If the objections are insufficient and unsatisfactory, the Court will order amended objections to be deh- vered; and where an objection alleges antecedent user of the invention, it should state when and where such prior user took place; and if the objection is iantecedent publication in any book or literary work, it should state the particular work, and liie volume of the work, in which the antecedent publication is to be found (e). The right of ordering inspection ©f the premises and machinery of (either party, which the Court of Chancery exercised before the Act of 1862, may still be exercised where a patent case is about to be tried in equity. The ground of that jurisdiction is, that it may be, that without such inspection, the (e) See Omrtis v. Piatt, 8 L. T., N. S. 657. THE JURISDICTION OP EQUITY AS TO PATENTS. 197 party applying for inspection, cannot without that aid, bring satisfactory evidence before the Court. The fundamental principle on which inspection is ordered seems, in fact, to be this, viz.; that the Court wiU make such an order, where the evidence adduced is such as to raise a strong presumption of the fact of infringement ; and where it appears to the Court that without such inspection, satisfactory evidence cannot be produced (/), The order in the Singer Company v. Wilson was in a special form, viz. that the defendant should verify on affidavit the several kinds of machines which he had sold or exposed for sale;: and that one of each class should be produced at his solicitor's office, for inspection by the plaintiff's solicitor, and two experts named. From what has preceded, it will- be seen that, under the jurisdiction exercised by the Courts of Equity, enabling them to try every question in the cause that could be tried at law, the necessity for an interlocutory injunction is extremely diminished ; so that, in fact, if there is a motion for an injunction, the usual course (except in; very exceptional cases) is, as before observed, to order the motion to stand over till after the trial. The foregoing pages will afford sufficient general information as to the exercise by the Court in patent cases, before the Judicature Acts, of jurisdiction to grant injunctions, and to try a cause entirely without any reference to a Court of law. (/) See on this, Drewry on Injunctions, Snp,, chap, iii., sect, 6. And see Singer Company v. Wilson, 13 W. R. 560, 198 THE JUEISDICTIOJT OF EQUITY AS TO PATENTS. With regard to lie effect of the Judicature Acts of 1873 and 1875 upon the proceedings in patent cases before a Court of the Chancery DivisioB, it is presumed that those Acts make no material clMinges, except as to the forms of pleading ; for, as equity and the common law are entifely (Taccord on the law affecting patents; equity in fact foUowii^ the law ; and as «quity and common law differed before the Acts, only, or at least principally, as to giving the remedy of an injimction ; lie Courts of Equity invariably gran1»ng an injiinctaon and an account of profits, if the patentee supported his title and proved infringement ; while on the other hand the Courts of law rarely granted an injunction or an account, but gave damages: — ^the only change ibat seems likely to foUow from the Judicature Acts wiU be, that pirobably under sects. 6 and 7 of clause 24 of the Act of 1873, it will be incumbent on a Judge of the Common Law Division, to grarat an injunction and account, if the plaintiff desires that remedy, and frames his pleadings accordingly. TTie observations made in p. 122, note (&), with reference to giving a somewhat fuller statement of the law of nuisance than on some of the other subjects dealt with, seem equally apjJicable to the case of patents ; for, as a patent case may be launched either in a Court of the Common Law Division or in the Chancery Division (as the plaintiff may elect); and as the judges of eidier division appear to be bound to apply both law and equity; it will (it is conceived by the writer) be convenient to refer the reader to some of the le9,ding modern authorities on the law of patents. NOTE AS TO THE LAW AFFECTIN© PATENTS. 199 The most material questions as to the lam, and those onlywhdch it is proposed; to consider in these pages, are: — (1) What is and what is not the proper subject for a patent. (2) What is and what is not infringement. (3) What is and what is not antecedent user or publication, invalidating a patent, (4) The title and specification, and the construc- tion thereof {g). Sect. 1. — What is and what is notthe proper sv^ect of a Patent. It has -long been settled by authority, that a new combination of old parts of mechanian, whereby a new and usefiil result is obtained, is a proper subject for a patent; for, in fact, such a combination con- tains invention {K). But the mere application of a known instrument, to purposes analogous to those for which it has been before used, is not the subject of a patent {i). But a patent may be supported for a very small invention, provided it is new and useful. This was held in a case of Walling ton v. Daie (K), where the {g) The anthorities quoted on the subject of the law, are confined to those decided both b£ law and in equity sluioe 18SS; the autho- rities of an earjier date being fully treated in Mr. Hindmarsh's valuable work, and in subsequent treatises of earlier date than the present work, gee also J^. A,gnew'a recent work on Patents. (ft) See Hindmarsh on Patents, p. 124 et ieq. (i) Hort&n v. Mabon, 12 C. B. Rep., N. S. 437; Barwood v. Great NortUrn Railway Co., 2 B. & S. 194 ; 29 L. J., C. B. 19.S; and 11 H. L.Cas. 654. (A) 7 Exch. 888. 200 NOTE AS TO THE LAW AFFECTING PATENTS, invention- was really all but infinitesimal. So in Booth V. Kennard, where the invention colisisted in making gas direct from seeds, leaves, branches, &c., and other oily substances, instead of the old process; which was first to get oil out of seeds, &c., and then to make gas from the oil — the process described by the patentee was, to project the seeds, &c,, into a red hot retort, and subject those materials for a proper time, to heat; but he stated that the gas might be made out of the seeds, &c., with the same ap- paratus as before used for making gas out of the oils; and his claim was " for making gas direct from seeds and the matters herein described," — and the patent was, assuming the invBntion to be new, upheld by the Exchequer Chamber (Z). The Court, it will be observed, asAj decided that, assuming the alleged invention to be new, it was a fit subject for a patent. On subsequent proceedings,, it appeared that the in- vention was not new, and a verdict for the defendant was supported (m). It need hardly be said, however, that in a case where crinolines, consisting of a number of hoops, were made oS steel watch springs attached to pieces of tape or riband, and suspended from a band round the waist; and it was shown that the same kind of arrangement had long before been used, only •wi\h.' whalebone instead of steel springs; it was held that there was no ground for a patent (w). So where there was a patent for dressing cotton and linen yams by machinery, and a subsequent (0 1 Hurl. & Nor. S27. (ot) 2 Hurl. & Nor. 84. (») Thovtpson V. James, 32 Beav. 570. NOTE AS TO THE LAW AFFECTING PATENTS. 201 patent was taken for an improvement in finishing yams-of tooo/ and hair, the mechanical process being the same as in the prior patent; the second patent was held void (o). In the case of Young v. Fernie-(jp), which was heard and argued at great length on, a trial of issues without a jury, by V.-C. Stewart {q):. it appeared from the evidence, according to the opening of the judgment, that the production of paraffin, oil, by treats ing bituminous substances, was not new either as to the process, or the material produced; and it was also known that a low temperature was necessary ; but the merit of the plaintiff, according to the judgment was, that though the production of paraffin oil from coal had been scientifically known before the date of the patent, the patentee had fixed upon the coal best adapted for the purpose, and upon the degree of heat best adapted for Ae purpose. "I find," said the learned Judge (r); "that the plaintiff has, by a course of laborious experiments, ascertained a particular class among many, and &■ particular process among many, which has enabled him to create and introduce to the public, a useful manufacture, which amply sup- plies the public with that, which until the use of the materials and temperature indicated by him, had never been applied for commercial purposes. This brings it within the principle of Hill v. Evans " («). Upon this decision it may be permitted to make a Co) Brook V. Aston, 8 El. & Bl. 478; 32 L. T. 341. ip) 10 L. T., N. S. 861; 4 GifE. 577. (a) This case occnpied 34 days. (;■) Page 866 of 10 L. T., N. S.; and p. 611 of 4 GifiE. («) 8 Jur., N. S. 525; 4 De G., F. & J. 288. £5 202 NOTE AS TO THE LAW AFFEGTING PATENTS. few dbservations, particalarly as it has not, it is be- lieved, met the general approbation of the profession. In the first place, what was laid down in Hill v. Evans, as a governing proposition, was this, that " the prior knowledge of' an invention, to avoid a patent, must be such knowledge as will enable the public to perceive the very discovery, and to carry the invention into practical use ; " and one question is, whether Young v. Fernie,xesAj feU within that principle. Mow, in Young v. Fernie, the evidence showed that paraffin was known and made in 1832, though it was not made in sufficient quantities to supply the market. The process of distilling tar and coarse oils from bituminous substances, had been discovered acai practised ; and there were several patents for that" purpose. It is true that most of the patent processes operated upon bituminous schists and shahs, and not upon coal. It was known, also, that a low tem- perature was necessary in order to produce paraffin in large Quantities; so that the invention of the plaintiff was really reduced to this : that it was the discovery that bituminous coal (of which the pro- perties were well known), teeated by processes known, and subjected to a temperature known to be necessary for the purpose, would produce paraffin in large quantities; whereas it had been previously produced, by. processes very similar, only in small quantities. The case, liierefore, seems very much like Crane v. Price(f), where large utility seems to it) 1 Weba. P. C. 393; i Man. & Gr. 580. NOTE AS TO THE LAW AFFECTING PATENTS. 203 have been held to involve novelty, though the novelty itself was of the most infipitesimj^l dimensions. Young v. Fernie was appealed to the House of Lords ; unfortunately without any satisfactory result as to the legal question involved; as the decree, though it set forth the issues and the findings, did not set forth or refer to the evidence on which the findings were based, an4 the House of Lords held, that it had no power to look at the evidence («/). A patent was taken out, the claim toeing for the application of a flame of gas, or other combustible fluid (as described in the specification), for softening the fibres of wood while being bent, in combination vith a clamping apparatus for securing the wood in its bent form untQ the fibrps were set ; so that the hook might remain permanent (as set forth in the specifi- cation); that process had been before q.pplied l)y coachmakers, and others, to bend wood, bv^t had not been applied (as described in the spepifie^tion) to bending walking sticks, umbrellas, parasol sticks, and the like ; and the Court held that the plaintiff's process was, the application of a general principle of mechanics, to a purpose to which it had not been before applied, producing a w^e/wZ manufacture; and, as-' suming it to be new, was a fit subject for a patent (a;). This decision is, it is submitted, scarcely reconcile- able with the cases of Hadson v. Mabon and Har- wood V. Great Northern Railway Company, referred to ante, p. 199 ; for certainly, bending wood by heat (») 1 L. R., H. L. 63. (a;) DangerfieU t. Jones, 13 L. T., N. S. 142. 204 NOTK AS TO THE LAW AFFECTING PATENTS. for the purpose of making walking sticks, seems a purpose analogous to ihat of bending wood by heat for the parts of a coach. In the case of The Patent Bottle Envelope Com- pany V. Seymer (y), it appeared that the use of a model or mandril, for producing forms of pliable materials, was quite old. The plaintiffs' patent was for making a motdd or cover for bottles, by fastening rushes or straws together' round the mould: llie process was likened to that of applying a well-known tool to work previously untried materials, or to pro- duce new forms ; and it was held not to be a manu- facture, and therefore not the subject of a patent. A patent was taken out by the plaintiff for "an improvement in the manufacture of cast tubular boilers,;" the specification, after describing the pro- cess, claimed " the casting of a boilerj such as de- scribed, in one piece." The Court of Exchequer Chamber (oil appeal fi:om the Common Pleas) was unanimous, that the casting of a boiler in one piece, was not the subject of a patent («)>. Sect. 2. — What is and what is not Infringement. If a portion of a patent for a new arrangement of machinery is in itself new and usefiil; and another person, for the purpose of producing the same effect, uses that portion of the invention, and substitutes for the other matters combined with it, another (i/) 5 C. B., N. S. 164. (z) OriMon V. Clarke, 14 C. B., N. S. 473. See the iudgment, p. 490. NOTE AS TO THE LAW AFFECTING PATENTS. 205 mechanical equivalent, that would be an infringe- ment {a). It may, however, be observed, that the judgment in the case of Sellers v. Dickenson, seems to have been founded on the assumption that the plaintiff's patent was for a new combination of old mechanical instruments ; and undoubtedly it was so in one sense, as all the mechanical instruments used — viz., levers, rollers^ breaks, &c» — were perfectly well known. But the Court appears to have either overlooked, or considered unimportant the fact, that the claim (see p. 316 of the Report) was for the novel arrangement of mechanism for stopping the loom, which was one distinct pieee of mechanism ;■ " and also for the method of bringing the break into connection with the fly wheel," which was also a distinct piece of mechanism, but was certainly not new per se and taken separately.. How far this consideration, if it had been taken into account, might have affected, the decision, it is not for the writer to discuss.. It is, however, obvious from the report of the case;^ that the Court read the claim as consisting of one part only (see p. 324), Upon that part of the judgment which proceeds upon the doctrine that the user of one new and usefiil part of a new combination of materials partly old and partly new is infringement, the authorities are numerous (see, among others, the case of Newton v. Great Junction Railway Company {b) ). The real (a). Sellers t. Dickenson, 5 Exch. Eep. 312. (*) 5 Exch. 331. 206 NOTE AS TO THE LAW AFFECTING PATENTS. question, however, in tellers v. Dickenson was, it is submitted — were there two combinations, or only one? It was decided so long ago as 1860, in Walton v. Lavater (c), that aellmff m England articles made abroad, which are the subject of an English patent, is infringement ; and, to a corresponding efifect, is the case of Betts v. Neiison (d). To a similar effect, also, though not .with reference to selling, but to using, is Caldwell y, Vanvlissengen (e). In that case' it was held, that foreigners using on board their ships in English waters, an invention patented in England, were infringing. The using, however, a patented English invention by foreign ships withiii English waters ig now legal, tmder the 15 & 16 Vict. cap. 83, sect. 26 ; but with this express exception, viz., *' when such inventioB is not used for the manufectjire of any goods or oommoditifes to be vended within o.r exported from her Majesty's dominions." See also Elmslie V. Boursier{f). In Betts V. Neiison and others, above referred to, the defendants were the managers of the business of certain brewers at Glasgow, and the defaidant Tennant, was their agent in Liverpool, and another defendant was their agent in London. The course of dealing by the defendants with bottled beer (the bottles being fitted with the plaintiff's patent cap- sules), was to send the eapsnled bottled beer to thes (f) 8 C. B., N. S. 162. illy 3 L. B., Ch. Ap. 429. (c) 9 Hare, 415. (/) 9 L. R., Eq. 217. NOTE AS TO THE LAW AFFECTING PATENTS. 207 agents in England, for transmiasion abroad, there to be sold ; and it was decided that that was a user in England by the defendants; and a decree of V.^C. Wood, granting an injunction and account, and an enquiry as to damages, was affirmed by Chelmsford, L. C. The case then went on appeal to the House of Lords, and the decree of the liord Chancellor was affirmed ; with this exception, that the direction of an account of profits, was struck out (g). The terms of letters patent are, that the patentee shall have " the sole privilege and authority to make, use, exercise and vend his invention in this realm." In the face of that language, it was gravely con- tended in Ehnslie v. Boursier (A) that the defendant was at liberty to import from abroad and sell in England, articles for the manufacture of which the plaintiff had a patent, and which articles were manu- factured abroad by the very process of the English patentee. Judgment was of course against the de- fendant, James, V.-C., adverting expressly to the language of the grant. In Parhes v. Stemns (i), referred to in p, 187, the plaintiff had taken a patent for a globular lamp, each piece being the segment of a sphere; and part of the combination consisted of a sliding door, instead of &,door on a hinge. The claim was " for the ar- rangement and combination of parts described." The defendant made a globular lamp with a sliding door, but did not copy in other respects the plain- {g) 5 L. R., H. L. Cas. 1. (A) 9L. R., Eq, 217. (i) 8 L. &., Eq. 368. 208 NOTE AS TO THE LAW AFFECTING PATENTS. tiff's combination ; and James, V.-C, held that there was no infringement (k). There is a distinction as to the right of a patentee between the case where an invention consists wholly of a new combination of oM parts; and where it con- sists of several parts, either all usefiil, or some more useM than the others. In the first case, it is no in- fringement to take one of the parts of the new combi- nation. In the second, it is an infringement to do so. Thus in Smith v. Londort and' North Western Rail- waif- Company (l)^ where the patent was for " an improved wheel for carriages of different descrip- tions," and the specification stated that "the said improved wheel is manufactured whoUy of bar iron, by welding wrought iron bars togetiier into the form of a wheel, whereof the na.ve, spokes and rim, when finished, will consist of one solid' piece of malleable iron; and the mode by which the said, bars of malleable iron are fashioned and united into the shape of a wheel, is as foUowsr" The method was then described, and the claim was, that the invention consisted "in the circumstance of the centre boss or nave, arms, and rim of the wheel, being wholly com- posed of wrought or malleable iron, welded into one solid mass in manner hereinbefore described." The defendant imitated the manner of forming the boss or nave into one piece of malleable iron -with the rest of the wheel. But the mode of forming and welding the spokes and rim was different. The {k) See also Jf Cormioli t. Qray, 7 Hurl. & Nor. 25. (0 2 El. & BL 69. NOTE AS TO THE LAW AFFECTING PATENTS. 209 Court held that, imitating the mode of welding the nave, was an infringement. But where a patent is for a combination of parts, it is not infringement to take one of those parts, even though it be new per se, if it is not applied to a similar or analogous purpose (wi). But, if a patent is for a combination consisting of several parts of one process, it is infringement to use a material part of the process which was new, for the same piurpose as that mentioned in the patentee's- prqeess, although the infringer does not use all the parts of the pro- cess specified («). In the case of Seed v. Higgins{6), the plaintiff had taken a patent for " improvements in machinery, or apparatus for preparing, slubbing and roving cotton and other fibrous substances." The specification described improvements applic- able solely to that part of the machinery called "a flyer," employed in connection with the spindle, for the purpose of winding the sliver, or roving, upon the bobbin. And the patentee went on to describe the specific application of centrifugal force in the flyers, for producing the desired effect; and he claimed " the application of the law of centrifugal force to flyers used for preparing, slubbing and roving cotton. " He afterwards filed a disclaimer, by which he dis- claimed all application of the law of centrifugal force, except only in the particular manner described in the specification. The defendant also applied the law of centrifugal (?«) Lister V. Eastwood^ 9 L. T., N. S. 766. ' In) Somll V. Keyrporth, 7 EI. & Bl. 725. (0) 8 EL & Bl. 755, 771; 8 H. L. Cas. 550, See also 37 L. T. 101, 210 NOTE AS TO THE LAW AFFECTING PATENTS. force;, but not precisely in the same manner as the plaintiff. On the trial, the Judge overinjled an objection by the defesdant, that the specification as altered by the disdaimer, described and claimed an invention different from that for which the patent had been granted; but reserved^ the point for the consideration of the Court. The defendant also contended that if the inTention described in the specifioatioa.- as altered by the dis- claimer, was limited to»the particufermode of apply-, ing oentrifagal force described^ in the disclaimer, spedffioatioB and drawings,- there was no evidence of infringement strictiy receivable for the jury (the only evidence of infringenaent tendered by the plaintiffj appearing to have been the- opinioES of scientifie witnesses). The Judge, however, left the question of infciiBgement to. the jury, and their verdict was for the plaintiff on all the issues, subject to the leave reserved by the Cburt. On a rule to show cause why a verdict should not be- entered for the defendants, the Court discharged the rule. The Exchequer Chamber, however, reversed the decision of theCaurt of Queer's Benohj.onthe ground that ihere was no evidence for the jury of infiinge- ment; and this judgment was affirmed by the House of Lcwds ; Lord Wensleydale in his judgment, stating his opinion, that the opinions of the scientific wit-^ nesses that tiiere was piracy, was a question not in their province to decide. " The opinion," said his lordship {p\ "of scientific witnesses is only {p) See p. 566, 8 H. L. Caa. NOTE AS TO THE LAW AFFECTING PATENTS. 211 admissible as prqof of Bicts. Their opinion as to whether there has been an infringement or not, though sometimes received to save time and trouble, is, strictly speaking, inadmissible, and if olgected to, ought to be rejected : the Court alone is to decide questions of law." The case of Lister v. Leather (q) is a case of con- siderable impcnrtance, as relates to patents for com- iinations. It has been stated in p. 199, with reference to combinations, that a new combinatioTi. oi old parts of mechanism, whereby a new and useful result is obtained, is a proper subject for a patent. If all the parts of the combination are, separately old, it would be clearly no iafi^ngement to copy one of those parts. But if one of the parts is separately a new and a usefiil part of the c»mhinatiom,, though it may be only a subordinate part, then taking that part alone > will he an imfriogement. That is the principle settled by Lister t. Leather, and it is consistent with the doctrine of Newton y. Grand Junction Railway^ Company and Sellers v. Dickinson, cited in pre^ ceding pages. In Gaucher v. Clayton (r), the only questioii pro- perly relating to patent law was this: whether, where a patent was for applying improved beaters to a thrashing machine (viz. beaters with grooves and channels on their surfeces), that was the sub- ject of a patent; and the improvement was held to be a proper subject for a patent. It was also held,, that to make the beaters in this country (?) 8E1..&B1. loot. (.?■) 13 h. T., N. S. 115. 212 NOTE AS TO THE LAW AFFECTING PATENTS. and to export them to a foreign country, there ta be fitted to thrashing machines, was an infringement. It was argued for the defendant, that making parts of a machine and exporting those parts, was not an infiingement of a complicated machine. But the Court said that might be so, where the invention is of a combination of wholly old parts ; but that in the case before the Court, where the invention rested on a specific new part, the making, of that new part was an iniringement. When A., a patentee, grants a licence to B. to manufiicture and sell articles made according to the patent, and C. buys articles, icaia. the manufacturer and, then resells, that is no infiingement of the patent (s). Counsel for the plaintifi"cited T^aZion v. Lavater {£) in support of his contention. But that case only decided (on this point) that where a person manufactures abroad patented articles, and ,then imports them to England and peUs them in England, that is infringement. In Thomas v. Hunt, the simple question was, whether the purchasers from a licensee are entitled to make a subsale; and it is clear (as observed by Williams, J.) that the vendee of a licensee has aU the privileges of a vendor, in* eluding that of selling again ; ' and that the very object of the Mcence would be fioistrated if it were not so,' Where the plaintiff had a patent for purifying coal gas from sulphurated hydrogen and cyanogen, more or less perfectly free from ammonia, by passing («) Tlwmas v. Bvnt, 17 C. B Eep., N. S. 183. (*) 8 C, B., N. S. 162. NOTE AS TO THE LAW AFFECTING PATENTS. 213 it through the precipitated or hydrated oxides of iron, or the sub-sulphates or oxycloyds of iron ; and the defendant used for the same purpose a natural substance called hog ochre : the plaintiff alleged that bog ochre contained a large quantity of precipitated oxide of iron ; this the defendant denied. And Westbury, L. C, held, that whether the bog ochre did or did not contain precipitated oxide of iron, the use of it by the defendants did not constitute an infringe- ment ; as, according to the specification, the oxides used and described, werevoxides precipitated or pre- pared artificially; and the patent was for that, and no more («). In the case of Unwin v. Heath {v), which was heard before the House of Loards on a writ of error from the Exchequer Chamber, the &cts were as follows : Heath, the plaintiff below, had taken a patent for "certain improvements in the manufacture of iron and steel." The specification described as one of the subjects of the invention, the use of carburet of manganese in any process wherelsy iron is converted into cast steel; the specification then proceeded to describe the process, and concluded thus: "I do not claim the use of any such, mixture of cast and malleable iron, or malleable iron and carbonaceous matter, as any part of my invention, but only the use of carburet of manganese in any process for the c) I L. K., C. P. 624. NOTE AS TO THE LAW AFFECTING PATENTS. 231 af ships and other vessels navigating on water." The specification described eleven improvements. The case turned on the first and sixth, which were slaimed as follows ; — 1. " For the construction of ships and other vessels that navigate on water with an iron frame, combined with an external covering of timber planking for the sides, bilges and bottomsJ' 6. " For the construction of iron frames for ships or other vessels navigating on water, adapted to an external covering of timber planking, for the sides, bilges and bottoms, as described." The Court held, as to the first claim, that it was in efiect a claim "for planking with timber any iron frame of a ship," and iron and wood being both of them materials long used for the construction of the frame and coating of vessels, the application of wooden planking to the iron frame oi 2b ship, without any peculiarity in the nature of the planking, was aot the subject of a patent. As to the sixth claim, it appears to have been saved by the words as de- scribed, and the validity of the sixth claim was, in fact, not disputed. But as-the patent was bad as to the first claini, a rule for a verdict for- the defendant was of course made absolute. A patentee may omit in his complete specification something which he has referred to in the pro- nsional, provided the difference is honestly made ; for if a patentee has something in his mind when he Sles his complete specification, and finds it useless or not new, he may disclaim it ; but as he cannot disclaim as regards the provisional, he may omit the 232 NOTE AS TO THE LAW AFFECTING PATENTS; particular thing mentioned in it, when lie comes ta file his complete specification (r). It is mostly usual, and generally advisable, in framing a specification, to conclude by a specific claim, distinguishing the particular things that. the patentee intends ,to define as his invention. This, practice, however, is not absolutely essential, if fi-oni the whole document (including drawings, if any) it can be clearly collected what the invention is; and therefore where the patentee had originally, after de- scribing certain mechanical arrangements in a sewing machine, concluded thus: " I would have.it under-! stood, that I do not confine myself to the precise details shown, so long as the peculiar character of uny part of the invention be retained;" and then followed six distinct claims. And afterwards, the patentee struck out by disclaimer all the specific claims and the above underlined words, any part of; so that in fact the specification remained only a description of a certain mechanical instrument called G on the drawing, and of its operation. The Court being satisfied that the operations of the in- strument G were sufl&ciently described, and that there was novelty in its application, supported the patent (r). But the specification and the drawings taken together must show distinctly what the inven- tion is, where there is no definite claim. That appears by the case otFoxwell v. Bostock («). That case is somewhat complicated, and the judgment is. (»•) Human V. Welch. I L. R., C. P. 192. («) 4 J)e G., Jones & S. 298-, 10 L. T., N. S. 144. NOTE AS TO THE LAW AFFECTING PATENTS. 233 an elaborate dissection of all the points in it. The substantial rule to be drawn from that case seems, however, to be this: that when a specification de- scribes an invention and refers to drawings, if it cannot be collected from the specification and the drawings taken together, what is the particular in- vention, the patent is void for insufficiency of speci- fication. As Lord Westbury, C, expressed it, that "in a patent for an improved arrangement or new combination of machinery, the specification must describe the improvement and define the novelty, otherwise and in a more specific form, than by the general description of the entire machine ; it must, to use a logical phrase, assign the differentia of the new combination." Wright v. Hancock (t) shows, however, the im- portance in general of making a defiaite and precise statement in the specification of what the patentee actually claims as his invention. The title of the patent was for " improvements in the manufacture of fi-iUs and ruffles ; and in the machinery or appu' ratus employed therein." The opening of the specification (as reported, , p. 38 of the report], if it had stood alone, would certainly have led the reader to collect, that the in- vention consisted, partly at least, in some peculiarity in the ruffles and frills themselves. Then the specification went on to describe the machinery and process ; and if it had stood there, it is at least probable that the decision would have (f) 5 L. B,, Exch. 37. 234 NOTE AS TO THE LAW AFFECTING PATENTS. been, on that part of the case, against the plaintiffs But the claims were (1) "for the general construc- tion, arrangement and combination of machinery, apparatus or means for producing crimped or plaited friUs or trimmings in a sewing machine as herein- before described ; (2) the application and use of a reciprocating inife for crimping fabrics in a sewing machine, substantially as hereinbefore described; (3) the peculiar manufacture- of crimped or plaited friUs or trimmings^ as hereinbefore described and illustrated by fig.. 8 of the drawings." In this there- was undoubtedly not a Word to lead to the conclusion that the plaintiffs had any idea of claiming the fctbrie per se. And the Court held that the patent was for an improvement in the manu- facture of fi-ills and ruffles, and not for an improve- ment in frills or ruffles themselves, and was a valid patent. In the case of Oxley v. Holden (m), the patent was takra* out for "certain improvements in the doors and sashes of carriages." In the specification the patentee described his invention, first, as a mode of applying; elastic pads; secondly, as a mode of applying certain metal fittings to sashes; and thirdly, a particular construction of hinges. In the speeificaAion, the patentee described his mode of applying^ certain metal fittings to the sashes, and the claim as to this part was : " I claim the metal fittings and the mode of applying the same, described herein as the second part of my invention." («) 8 C. B, N. b. 666. NOTE AS TO THE LAW AFFECTING PATENTS. 235 It was proved that the metal fittings per se were lot new, but that the mode of applying them was lew. And the question was, whether, in construing he claim, it was to be read as claiming the metal ittings separately, and the mode of applying them eparately? if so construed, the patent would be lad, as the metal fittings were old. The Court held, that the claim must be read as laiming, not the metal fittings separately, but the natal fittings and the mode of applying them as lescribed. If there had been nothing to consider lut that specific claim, as it stood, it is probable hat the view taken by the Court would have been a the opposite direction. But the Court read the pecification as a whole, and took notice, that in he part referring to the mode <^ applying elastic lads the patentee had claimed the construction of lastic pads as herein described separately ; and the wde of applying them as herein described, sepa- ately ; whereas, in the matter of the metal fittings e had made no such separate claim, but had claimed he metal fittings and the modes of applying them s one invention (x)- In the case of Cunnington v. Nuttall (y), the laintiffs were the proprietors of a patent granted to ne Pocheron, a foreigner, for "improvements in le inanufacture of glass." The specification, as riginally fi-amed, stated the invention to consist " in (a-) See the judgment in p. 705. (y) 5 L. K., H. of L. 205. 236 NOTE AS TO THE LAW AFFECTING PATENTS; the suppression of the fire-clay pots or crucibles hitherto used, and in placing the materials to be fused or melted, within the furnace itself, the usual inner form of the lower part of which is modified, by doing away with the sieges or banks, and the general ievelling of the bottom ; the lateral sides are con- structed of a hollow form, in such wise that a current of refi-igerating or cooling air, may be made to cir- culate around, and prevent any excessive heating of the sides which are to retain or enclose the materuds in flision." The specification, as altered by a dis- claimer, was confined to " farming the sides of the tanks or chambers containing the glass-making materials, hollow, in such wise that a current of re- frigerating air may circulate and prevent any exces- sive heating of the sides which retain or enclose the fused materials :", and it then proceeded to disclaim "all parts of the specification which claimed the suppression of fire-clay pots, and placing the mate- rials to be fused in the furnace itself," this being matter which was contained in the original speci- fication. The defendant's invention, according to his own description of it, was as follows : " It is a reverbera- tory furnace, with a tank, two fires, one at each end, and a cave or ash-pit below the tank. It has not an air-chamber round the tanks for the circulation of a current of refirigerating or cooling air, nor any similar appliance. On the contrary, my object being to get and retain as much heat as possible, the sides of my tank are solid all the way round, with the ex- NOTE AS TO THE LAW AFFECTING PATENTS. 237 ceptdon, that between each fire-place and the tank, but nearer the fire-place than the tank, there is a narrow aperture or flue, for the purpose of conveying air from the ash-pit through the bridge into the furnace " At the trial, upon issues with a jury, before the Master of the Kolls, his Lordship charged the jury that, as matter of law, he was of opinion that, not- withstanding the disclaimer of certain expressions in the specification by the patentee (Cannington was his assignee), the patent was for "the combination of several separate and distinct matters, of which the air-chamber was only one, and that the patent was -not aflfected by the circumstance, that each of the separate matters which went to make up that combination, might have been anticipated ;" and the jury found a verdict for the plaintiff; and afterwiards the Court refused an application for a new trial. Giffard, L. J., had, on appeal, held that there was misdirection of the jury, and ordered a new trial; On appeal to the House of Lords, their Lordships reversed the order of the Lord Justice, and affirmed the order of the Master of the Rolls: principally, as to the infiingement it would seem, on the ground, that the defendant did in a circuitous manner adopt the process of refirigeration, by means of the " flue For the purpose of conveying air from the cave or ish-pit through the bridge into the furnace." Their Lordships intimated, that possibly the defendant's irrangement might be the subject of a patent as igainst the rest of the world, but subject to the mor patent of the plaintiff. It is unnecessary to go into the details of the case 238 NOTE AS TO THE LAW AFFECTING PATENTS. of' De la Hue v. Dickenson {z), but the follomag general rules were laid down in that case : — 1. That where the specification, looking at the claims, describes means of conducting a usefiil pro- cess (assuming it, of course, to be new), resulting in a valuable manufacture, and the specMcation. dis- tinctly shows what portion of those means are claimed as new, and what are old, the patent is valid. 2. That if, on the question of infringement, the evidence has a tendency to show, that the defendant has used substantially the same means to obtain the same result as specified by the plaintiff; and scien- tific witnesses have sworn that the defendant has actually used such means, the question becomes one of feet, or of fact mixed with law, which the judge is bound to submit to the jury^ In the case of Simpson v. Holliday, the question of Validity of the patent, turned entirely on the con- struction of the specification (a). The specification commenced thus : " I mix ani- line with dry arsenic acid, and allow the mixture to stand for some time ; or, I accelerate the operation by heating it to, or near to, its boiling point, until it assumes a rich purple colour," &c., &c. The Vice- Chancellor, Sir W. P. Wood, had, upon a trial of issues without a jury, found on all the issues (includ- ing the issue of sufficiency of the specification) for tlie plaintiffs. It had been proved that the cold (z) 7 Bl. & B. 738. (o) 12 L. T., N. S. 99. NOTE AS TO THE LAW AFFECTING PATENTS. 239 process first described would not produce any colour at all, and the question was reduced to this : whether there were two processes described in the alternative, or whether the second branch was to be taken to obliterate, as it were, the first branch of the state- ment ? And it was held, on appeal from the Court below to the Lord Chancellor, that there was a clear claim to two processes; one of which, it was ad- mitted, would, if it stood alone, produce no effect. And the patent was declared void. In pUl V. Evans (6) it was laid down by Campbell, L. C, that the question of the identity of two specifications, for the purpose of ascertaining whether one is an anticipation of the other, is a double question ; one as to the meaning of technical terms or terms of art ; and the other as to the con- ■ struction of the language of the specification, when the true explanation of those terms is arrived at. The first part of the question is for the jury, the second for the Court. (See pp. 293 and 294 of the report.) In the case under consideration, the cause was- tried before the Lord Chancellor upon motion for decree ; and therefore his Lordship was both Judge jiud jury ; and he laid it down as a rule, to guide the mind in determining whether there is antecedent publication (whether by a book or by a specification), ;hat the publication must 'be such " that a person )f ordinary knowledge of the subject would at once jerceive, understand, and be able practically to ipply the discovery, without the necessity of making (J) 1 De G., Maher & Jones, 288 ; 8 Jnr,, N. S. 626. 240 NOTE AS TO THE LAW AFFECTING PATENTS. any further experiments, and gaining further informa- tion, before the invention can be made usefiil " (e). Sect. 5. — General Principles deducible from the Cases referred to in the preceding Sections, 2, 3, 4 and 5. It is submitted to the reader, that from the autho- rities referred to in the four previous sections, the following general rules or principles may be col- lected:^ 1 . That the language of letters patent, declaring that the grantee, and no other, shall and law- fully may make, use, exercise and vend the invention within our United Kingdom, &c., excludes the right of any other person to make abroad, and sell in this country ; or to use in this country the invention ; except so far as the 26th clause of the 15 & 16 Vict. c. 83, gives authority as to foreign ships, to use the invention in such manner and to such extent as that Act permits and provides. 2. That a patent for a new combination of purely old things or elements, is valid ; on the prin- ciple that a new combination of old things is substantially, and for manufacturing pur- poses, a new thing ; that, in such a case, it is not infringement ta use one or more of the items of the combination, so long as the whole combination is not touched. But that, where a patent is for a combination, and some one (c) Page aoo.of the Report. NOTE AS TO THE LAW AFFECTING PATENTS. 241 or more of the parts of the combination is or are to some extent new; then it is infringe- ment to copy such part or parts. The distinction seems rather fine; because it in effect treats a patent for a combination, as also a patent for some separate item or items of the combination. The rule appears, however, to be quite settled by the authorities. 3. As to the specification : that though it is most usual to conclude it by a specific claim, a claim is not absolutely necessary. However, it is in general prudent to insert a specific claim, 1st, because it narrows the ground of litigation; and, 2ndly, because, where there is no definite claim, there may be the danger that arose in Foxwell v. Bostock, viz., that the Court may be unable to say what is the invention to which the patentee claims an exclusive right. 4. That the language of a specification will be taken altogether, giving to the words used a fair and reasonable construction ; and it may, perhaps, not be going too far to say, that if an invention is shown to be of commanding utility, it seems, from the authorities, that the Courts will be somewhat astute to con- strue the specification in favour of the patentee. 5. That it seems quite settled that the provisional specification need not describe more than the nature of the invention ; and that it is the ^notion of the complete or filial specification D. M }42 NOTE AS TO, THE LAW AFFECTING PATENTS. to describe in what manner the invention is to be carried into effect. But the complete specification must not be inconsistent with the provisional {d). 6. That it appears from the authorities (indeed, it is obvious) that the question of novelty is, in general, purely one of fact, to go to the jury, when the trial is with a jury. In some -cases, however, viz., where the question is the quantity of novelty, it becomes a question for the judge. (See Harwoody. Great Northern Company (e-) ), .Z. That as to a disclaimer, it must be confined strictly to the elimination of some part of the "invention ; and that a disclaimer cannot im- ,port into the patent something which was not in it originally. S. That as to the question what is a fit subject for :a patent, the broad , result of the authorities seems to be this, that there must be some new and useful element in the invention, and 'that it must be a manufacture; but that the ■quantity of novelty will be very much measured by the quantity of utility ; or perhaps it will be more accurate to say, that if there is very great utility, a very small quantity of novelty will be sufficient to support a patent ; or, to put the proposition in another form, if there is manifest and great utility proved, novelty {d) If the bill referred to in p. 219 shonld become law, provi- tional speeifioations will no longer exist, (e) 2 B. & S. 209. a KOTE AS TO THE LAW AFEECTIXG PATENTS. 243 will be inferred, unless the facts render such inference impossible. The cases of Crane V. Price and Young v. Fernie, previously referred to, are marked instances of this doctrine. In these cases, the quantity of visible novelty was almost infinitesimal, but the quantity of utility was very great. 9. That an old contrivaiice applied to an analo- gous purpose, will not support a patent. 10. That as to prior publication, invalidating a patent ; that, may be by acts, or by books, or by other means of knowledge comtaunicated to the public. The broad rule seems to be, that any means of information accessible an- tecedently to the patent, which could enable the public to put the invention into practice, will be fatal to the patent ; though if Young V. Fernie is law, this doctrin^ must be taken cum grano. 11. That mere experimental user by an inventor, even in the presence of other persons, where such user is essential for the purpose of ascer- taining the nature and capacities of the in- vention, and such knowledge could not be otherwise satisfactorily obtained ; is not pub- lication which will avoid a patent. 12. That what constitutes infringement, is in fact a question of quantity of similarity ; and that that question depends, not so much on appa- rent similarity or apparent difference, as upon substantial similarity or difference in results. For invention A and invention B m2 244 NOTE AS TO THE LAW AFFECTING PATENTS. may be outwardly and apparently very similar, and yet may produce different effects ; or, vice versa, they may be apparently very different, and yet substantially similar in results. The governing principle in dealing with questions of infringement, seems to be this : that if there is scarcely more than a barely perceptible difference between invention A and invention B as to their respective ele- ments, the test whether B is an infringement of A, or whether B is a distinct and sub- stantive invention, is this; viz., whether in- vention B does just what invention A does, and no more ; or whether B does something more than, or different from, the result of A's invention ; that soniething more, being per se useftil. This kind of question mostly arises where the two conflicting patents are for new combinations of old elements. ( 245 ) APPENDIX. FORMS OF INDOESEMENT ON WRITS OF SUMMONS (a). Form of Indorsement on the Writ of Summons in Action No. \,p. 1 . The plaintiff's claim is for a declaration hj the Court, that the plaintiff and the defendants are tenants in common in equal shares, of the premises comprised in the deed executed by W. on the day of in the year . "■ fa) Ord. n. sect. 1, of the schedule to the Judicature Act, 1875, requires that the writ of summons " shall be indprsed with a state- ment of the nature of the claim made, or of the relief or remedy required in the action." This order leaves an open question, as to what is the extent of the information that the plaintiff is bound to give, or may give to the defendant, as to what the plaintiff claims, or what remedy he ieeks. Ord. m sect. 2, is somewhat more definite ; it states " that it ihall not be essential to set forth the precise ground of cdmplaintj )r the precise remedy or relief, to which the plaintiff considers limself entitled." The above somewhat conflicting directions, place the plaintiff's iraftsman in something very like a dilemma: If he gives a full itatement of what it is that he claims, and what is the extent of he relief that he asks, and does so at any length; then, although le complies with Ord; II. sect. 1, he would seem to be neglectful if Ord. HI. sect. 2, and may possibly be exposed to a liability in flsts, for giving more lengthy information than Order III. sect. 2, equires or tolerates. It is presumed, however, by the writer, that the object of the rders, taken together, is, that the defendant served with a writ, hall have the opportunity of knowing, with some degree at least f definiteness, what is the wrongful act with which he is charged, nd what is claimed against him; in order that he may, if he is 246 APPESDIX. Indorsement on Writ of Summons in Action No. 2, p. 3. The plaintiff's claim is for a declaration by the Conrt, that thb plaintiff is entitled to a certain snm of lO.OOOZ., Three per Cent. Consols, transferred by the plaintiff's father into the joint names ot himself and the plaintiff, in the year ; in addition to the other bequests made by the plaintiff's father by his will and codicils dated in favour of the plaintiff. Indorsement on Writ of Summons in Action No. 3, p. 12. The plaintiff's claim is for specific performance by the defendant of the agreement made between the plaintiff and the defendant on the day of in the year Indorsement an Writ of Summons in Action No. 4, 1). 14. The plaintiff's claim is for specific performance by the defendants^ ef the agreement made between the plaintiff and the defendants on the day of in the yeai ; and of the several covenants contained in the- said agreement. satisfied that he cannot make a valid defence, have the apportmiity of submitting at once, before any further expense is incurred. As, however, it must be assumed, that the two orders, taken together, intend something to be done by the indorsement on the writ, tending to in&rm. the defendant of the natwre of the com- plaint made, and also of the nature or class of the remedy sought, it is obvious that by following Ord. II. sect. 1, rather than Ord. III. sect. 2, the costs of litigation may be narrowed in some cases; and in all cases, misconception on the part of the defendant may be prevented. Conciseness, as faj as is practicable, is however clearly required l?y both the orders, and by the model forms given in App. A, Part II. And in preparing these forms of indorsement upon the writs of summons, to be served in the cases to which the forms of claims have reference, the writer has endeavoured to follow as nearly as possible, the rules which he conceives are deducible from Orders II. sect. 1, and m. sect. 2, and from the model forms given in App. A, Fart II. sect. 1, (title, General Indorsements.) FORMS OF JNDORSEMENT ON WRITS OF SUMMONS. 247 Indorsement on Writ of Summons in Action No. 5, p. 18. The plaintiff's claim is for an in j nnction restraining the defendants C. and D. from committing any breach of the agreement entered into between the plaintiff and the said defendants on the day of in the year ; and of the subsidiary agreement entered into between the defendant C. and the plaintiff on the day of in the year ; and also restraining the defendant C. from singing or performing at any theatre other thaJi the plaintiff's theati^ without the leare of the plaintiff; and also restraining the defendant D. from permitting the defendant C. to perform at the defendant E.'s theatre ; and restraining the defendant E. from accepting or using the services of the said C. as a singer at bis theatre (i). Indorsement on Writ of Summons itk Action JVo. 6, p. 20. The plain tlfE's claim is for specific performance by the defendant, of the agreement entered into between the plaintiff and the de.- fendant on the day of in the year , for the grant of an underlease by the plaintiff to the defendant, of premises /named in the said agreement) situate at Indorsement on Writ of Summons in Action No. 7, p.-28. The plaintiff's claim is for a declaration by the^ Court, that the settlement made on the marriage (rf the defendant C. D. with the defendant E. D., his wife, on the of in the year ,. was and is fraudulent as against the creditors of. the defendant C. D. ; and that the said settlement may be set aside, so far as regards the plaintiff's interest as assignee in bankruptcy of the defendant C. D.'s estate. (i) The above form of indorsement, No. 6, may also seem to exceed somewhat the laconism apparently aimed at by the orders ; but, if the case of Lumley v. Wagner, as reported, is carefully con- sidered, it would seem that unless each branch of the prayer of the claim is included in the indorsement on the writ, the defendants woald not be fairly informed what it is that the plaintiff really claims. 248 APPENDIX. •Indorsement on Writ of Summons in 'Action No. 8, p.ZQ. The plaintiff's claim is for a declaration by the Court, that the deed made and executed by and between the plaintiff and the defendant B., on the day of in the year , is void as against the plaintiff, (except as a security for what shall be found due to the said defendant in respect of advances made by the defendant to the plaintiff's late brother [name] ) ; for an account of what was so due by the plaintiff's said brother to the said de- fendant ; and an account of the rents of the land comprised in the said deed described received by the said defendant ; and that the said deed may be delivered up by the said defendant to the plaintiff: upon her giving a security on the said land, for what shall be found justly due to the said defendant (c). ., Indorsement on Writ of Summons in Action No. 9, p. 34. The plaintiff's claim is for a declaration that Mary H., deceased, late of was, at the timo when she executed n certain deed dated (conveying her property to the defendants C. D. and E. F.), incapable of exercising a rational volition, and was under undue influence exercised by the defendant C. D. ; and to have the said deed delivered up to the plaintiff to be cancelled. Indorsement on Writ of Summons in Action No. 10, p. 42. The plaintiff's claim is for a declaration that the amount due to him for professional services and expenses out of pocket, in certain proceedings taken by the defendant F. S. B. against her husband, in respect of property settled to her separate use on her marriage, («) This form may also appear at first sight not to be so concise as the letter of Orders II. and III. (referred to ante) would require. But it is conceived that it is within the spvrii: of those orders; for, unless the several branches of the claim are specified in the indorse- ment, the defendant might be led to make a fruitless defence; whereas if he is informed of the whole claim, he would know what is really the charge that he has to meet; and if advised that he had no defence, might yield without incurring further expense. FORMS OF INDOKSEMENT ON WRITS OF SUMMONS. 249 ought to be paid by the said defendant out of her separate estate, not sabject to a restraint upon anticipation ; and for a consequential decree; and for an injunction (until what is due to the plaintiff shall be ascertained) restraining the defendant F. S. B. from receiving such part of her separate estate as is not subject to restraint upon anticipation. Indorsement on Writ of Summons in Action No. 11, p. 45. The plaintifE's claim is for payment out of the separate estate of the defendant C, settled upon her, of the several sums of 200Z., 802. and 1001., with interest thereon, on account of bills of exchange accepted by the defendant C. and discounted by and properly indorsed to the plaintiffl ; and in case such separate estate shall be insufficient, then for payment to the plaintiff of the balance, by sale or otherwise, out of certain freehold estate of the said defendant C, comprised in her said settlement. Indorsement on Writ of Summons in Action iVo. .12, J9. 48. The plaintiff's claim is for a declaration that the sum of 3000Z., bequeathed to the defendant S. M. by the will of Mary , forms part of the estate of J. M. , her husband (a bankrupt), and that the defendants C. and D. (trustees of the said sum of 3000?.) may be ordered to pay the said sum into the hands of the plaintiffs as the assignees of the estate of the said bankrupt J. M. Indorsement on Writ of Summons in Action No. 13, p. 58. The plaintiff's claim is for an order directing the defendant, to cultivate the farm held by him under the plaintiff in the county of according to the custom of the said county, and for an account and payment of the damage suffered by the plaintiff, by the defendant's mode of dealing vrith the said farm; and for an injunc- tion restraining the defendant from cultivating and managing the said farm otherwise than according to the aforesaid custom. M 5 250 APPENDIX, Indorsement on Writ of Summons in Action No. 14, p. 60. The plaintiff's claim is for a declaration that certain representa- tions made by the defendants to the plaintiff, respecting certain lead mines situate at , and held by the defendants as lessees thereof, were and are nntrne, and were at the time when they were made to the plaintiff, known by the defendants to be nntrne; and that the sale by the ^aintiff to the defendants of the shares held by him in the said mines may be declared nnll and void; and that the defendants may be ordered to repay to the plaintiff, the monies paid by him to the defendants for the said shares held by the plaintiff. Indorsement on Writ of Summons in Action No. 15, p. 69. The plaintiff's claim is for an account of profits made by his partner, the defendant, by bartering his, the defendant's, own shop goods, in payment of goods purchased for the partnership, and making- profits thereby; and that the diefendant be ordered to carry suidh profits to tiie account of the partnership. Indorsement on Writ of Summons in Action No. 16, JO. 81. The plaintiff's claim is for a declaration, that the defendants are not entitled to take a certain sum of lO.OOOZ., charged'by the father of John S. on the land called " Hill's Farm," and also to take the other benefits bequeathed to the defendants by the said John S., bnt are bound to elect ; and for a decree accordingly. Indorsement on Writ of Summons in Action No. 17, p. 83. The plaintiff's claim is for the judgment of the Court, whether the defendant , the widow of the testator , is or is not bound to elect between her dower, and an annuity of £ per annum bequeathed to her by her late husband FOEMS OF INDORSEMENT ON WRITS OF SUMMONS. 25 1 Indorsement on Writ of Summons in Action No. 18, p. 104. The plaintiff's claim is for an injnnction to restrain the defen- dant from working collieries ander the plaintiff's land, and from allowing water to flow from his, the defendant's, collieries into the plaintiff's collieries ; for an account of profits, and for damages. Indorsement on Writ of Summons in Action No. 19, p.' 111. The plaintiff's claim is for damages for the injnry done to the plaintiff by the defendant foaling waters passing through his land into the plaintiff's land ; and for an injnnction restraining the defendant from continning so to foul the said waters. Indorsement -on Writ of Summons in Action No. 20, p. 113. The plaintiff's claim is for an injunction restraining the defendant from continuing to create a nnisance, by the noise and vibration caused by a certain steam eng^e and other machinery connected therewith, erected and used in his factory in Street, in the town of ; and from there erecting or using any other machinery creating a nuisance by noise and vibration. Indwsement on Writ of Summons in Action No. 21, p. 115. The plaintiff's claim is for an injnnction restraining the defen- dant from permitting certain buildings which he is erecting in Street, to continue raised beyond 32 feet from the ground; and from erecting any further or other buildings exceeding such height. Indorsement on Writ of Summons in Action No. 22, p. 117. The plaintiff's claim is for an injnnction restraining the defen- dant from continning to erect certain buildings commenced by him 252 APPENDIX. in his garden at No. 27 in Street, obstructing the plaintiff's light; and from permitting snch buildings as are partially erected, to remain in such a state as to diminish the plainti£E'3 said light. Indorsement on Writ of Summons in Action No. 23, p. 119. The plaintiff's claim is for an injunction restraining the defen- dant from permitting the buildings commenced by him on certain land at in the county of , to continue in their existing state; and from erecting any further similar buildings on the said land. Indorsement on Writ of Summons in Action No. 24, p. 148. The plaintiff's claim is for an injunction to restrdn the defen- dant from continuing to publish his work on passing bills through Parliament, containing passages copied from' the plaintiff's treatise on flie same subject; and for damages. Indorsement on Writ of Summons in Action No. 25, p. 149. The plaintiff's claim is for an injunction restraining the defen- dant from infringing the plaintiff's copyright in the opera called ,by publishing certain quadrille and waltz music, containing portions of the melodies of the said opera; and for damages. Indorsement on Writ of Summons in Action No. 26, p. 151, The plaintiff's claim is for an injunction restraining the defendant from continuing to publish and sell copies of a septett arrangement of the plaintiff's symphony in A minor, such symphony being the plaintiff's copyright; and for an account and payment of profits. Indorsement on Writ of Summons in Action No. 27, p. 163. The plaintiff's claim is for an injunction restraining the defendants from using, in the labels on their bottles of stout, the words FORMS OF INDORSEMENT ON WRITS OF SUMMONS, 253 " nourishing stont," and other words in imitation of the plaintiff's trade mark ; and for an account and payment of profits. Indorsement on Writ of Summons in Action No. 28, p. 166. The plaintiff's claim is for an injunction restraining the defendants from using on the labels on their mustard bottles the figure of an ox and the word Durham, or either of such marks, and from otherwise infringing the plaintiff's trade mafk ; and for damages (a). Indorsement on Writ of Summons in Action No. 31, p. 182. The plaintiff's claim is for an injunction to restrain the defendant from infringing the plaintiff's letters patent, by manufacturing awd selling red and purple dyes made according to the invention described in the specification of the plaintiff's patent and specifica|ion. Indorsement on Writ of Sum.mons in Action No. 32, p. 184. The plaintiff's claim is for an inj unction restraining the defendants from infringing the plaintiff's letters patent for improvements in " spinning mules," by using the combinatiou of mechanical imple- ments described in the specification of the plaintiff's patent ; arid for an account of profits. ' Indorsement on Writ of Summons in Action No. 33, p. 187. The plaintiff's claim is for an injunction restraining the defendant from infringing the plaintiff's letters patent, for improvements in lamps; by using revolving and sliding doors to lamps, similar to the revolving and sliding doors described in the plaintiff's specification ; and for damages. (a) For a form of indorsement on the writ of summons in a patent case, where the claim simply charges infringement generally ; see form No. 29, p. 179, ante. INDEX To the Notes on the Law affecting the Subjects of the several Forms. I No. 1.— TRUSTS. how a trust is created, 6. nsttnre of the estate vested in trustees, 6. distinction between the status of trnstees in equity and their status at common law, 6, 7. of the powers and duties of trustees, 7. ^ classification of trustees, 7, 8. what constitates implied trust, 8. constructive trust, 8, 9. what are breaches of trust, 9. of trust created by parol, 10. trustees cannot be removed by cestui que trust, 10. retire at will, 10. executors trustees, 10. powers of executors as trustees, 11. No. 2.— SPECIFIC PEEFORMANCE OF CONTRACTS, &c. jurisdiction of equity over specific performance, how originally formed, 23. equity will in general enforce performance, 23. exceptions to the rule, 23, 24. where equity would formerly not interfere if damages a remedy, 23, 24. where semble, that it will, under the Judicature Act, give damages, 24. where a decree for specific performance would be of little use, 24. where a mandatory injunction the proper remedy for breach of contract, 24. when specific performance enforced by mandatory injunction, 24. what sufiicient to constitute contract affecting personalty only, 25. what requisite in contract afEecting real estate, 25. laches a bar to specific performance, 25. effect of vagueness in contract, 25. no relief where laches on the part of plaintiff seeking it, 25. 256 INDEX. No. 2.— SPECIFIC PERFOKMANCE OF CONTRACTS, &c.— ooatinued. general rule as to laches, 25. time does not rnn, pending negotiations, 25. covenant equivalent to contract, and enforceable, 25. effect where defendant unable to perform contract, 25. effect where defendant has no immediate power to perform contract, but can obtain the means, 25, 26. effect of false representations by jiarty to a contract, 26. effect where vendor's statement snch as to put the purchaser upon inquiry, 26. where misrepresentation by vendor nb bar to performance, 26. no decree where a complete decree cannot be made, 26. contract by a party to build on his own land generally not > enforceable, 26. exception, where such a covenant will be enforced, 26, 27. effect of part performance of a contract, 27. No. 3.-FRAtJD. fraud of two kinds, positive and constructive, 38. jurisdiction as to fraud, 38. effect of false representation, 38. where capable of being made good, .S3. suppressio veri fraud as well as .mggegtio falsi, 38. •nature of fraud variable,. 38. fraud by taking a gnarantie under a composition with a trader, 39. neglect to give full information, 39. as between partners by concealment, 39. by giving imperfect information, 39., vendor concealing a defect, 40. antenuptial settlement made to defeat creditors, 40. what is fraud under Bankruptcy Laws, 40. by undue inflnence, 40, 41. depending on relation between parties, 41. parents presumed to have undue influence, 41. soliuitor presumed to have over client, 41. so as to medical man and patient, and guardian and ward, 41. No, 4. -MARRIED WOMAN'S SEPARATE ESTATE AND EQUITY FOR A SETTLEMENT. doctrine of separate estate and equity for a settlement ex- clusively a doctrine of equity, 50. restraint on anticipation, 50. married woman treated as feme sole in respect of her separate estate, 50. where married woman may alienate her separate estate, and where not, ,50. separate estate, by what language constituted, 51, 52. clause against anticipation does not bind before marriage, 52. INDEX. 257 No. 4.— MAREIED WOMAN'S SEPARATE ESTATE AND EQUITY FOR A SETTLEMENT— (!0«fiB?«e(«. se&us after marriage, 52. effect of claase against anticipation where married woman becomes discoverte, 52. where a separate estate clause is confined to a par- ticular marriage, 52, 58. where a married woman's separate estate is liable for her debts, 53. where not liable, 53. contract in writing not requisite to charge married woman's separate estate with her debts, 51. of equity for a settlement, 54. how the right arises, 54. effect where property accruing to married woman can be obtained at law by husband, 55. exercise of jurisdiction of equity, as to equity for a settlement, is matter of discretion, 55. mere filing bill does not complete married woman's title to her equity for a settlement, 56. how married woman may deprive herself of her equity to a settlement, 56. amount of settlement made by court discretionaiy, 56, 57. No. 5.-N0TICE. effect of direct notice to purchaser of a defect in the title of yendor, 64. what is constructive notice, and effect of, 64, 65. what constitutes constructive notice, 65. where a party entering into agreement for an underlease is affected by constructive notice of covenants in the lease, 66. what circumstances do not amount to constructive notice, 66, 67. definition of constructive notice by Wigram, V.-C, 67, 68. No. 6.— PARTNERSHIP. law of, a mixture of equity and common law, 71. example of the doctrine, 71. of damages obtainable at law for wrongful act of partner, 71. of dissolution of partnership in equity, 71. of injunction to restrain wrongful act of partner, 71. what is the nature of a partnership, 72. rule.s as to partnerships with respect to sharing profits, 72. of alterations by consent, 72. relation of partners to third parties, 72. what is and what is not necessary to constitute a partnership, 73. language of agreement must show intention to create partner- ship, 73. effect of agreement to take a given sum, in proportion to given quantum of profits, 78. effect of agreement for part of profits, 73. 258 INDEX. No. 6.— PAETNERSHIP— coTOWww^i. effect of 28 & 29 Vict. c. 86.-73. liability of a person holding himself out as partner, though not actually so, 74. effect where it is actually known that he does not share profits and losses, 74. effect where a person has been indnced by fraudulent repre- sentations to hold himself out as partner, 74. actual partnership not formed, where only contemplated on conditions, 75. where persons not partners, may be liable to third parties under law of agency, 75. partners must he of sound ttiind, 75. effect where partner is under age, 75, 76. married woman cannot, in general, be partner, 76. exceptions to the rule, 76. whether a married woman, baring separate estate, can be a partner, 76. how partnership may be formed, 76. if agreement verbal, terms of it reqjure strict proof, 76. effect of Statute of Frauds as to duration of partnership by parol, 76, 77. partners agents for each other, 77. every partner trustee for copartners, 78. partner cannot make separate profit, 77, 78. partner's right to account, 78, 79. partner .bound to adhere strictly to contract, 79. liable for neglect of acts agreed to be done, 79. as to power of partner to dissolve, where no fixed term agreed upon, 80. where there is a fixed term, partner cannot dissolve by mere notice, 80. dissolution in such case not decreed as of course, 80. No. 7.— EJECTION. doctrine of election, 85, 86. general rule as to election, 86, 87. cases upon, 86—91. general rule as to where the doctrine of election is applicable, 91. further authorities upon election, 91 — 93. rule as to application of the doctrine, 93. No. 8.— INJUNCTIONS GENERALLY. injunction a prohibitory writ issuing out of Chancery, 95. prohibitory injunction, what is, 95. mandatory injunction, what is, 95. distinction between the two classes, 95, 96. examples of each, 96. of interlocutory injunctions and perpetnal injunctions, 96. when mandatory injunction granted on interlocutory motion, and when not, 96, 97. INDEX. 259 No. 8.— rNJUNCTIONS Gm(ERAl.l.Y- continued. what are the principal sabjecta of injunctions, 98. of injunctions to restrain proceedings at law, 98, 99. apparently abolished by the Judicatare Acts, 98, 99. what was, before the Judicature Acts, the doctrine as to in- junctions to stay proceedings at law, 99 et seq. injunctions to restrain proceedings in other Courts than Courts of Common Law, 100 et seq. where the j urisdiction would not he exercised, 101. effect of Judicatare Acts on injunctions to restrain proceedings in Courts named in clause 16 of Act, 100, 101. cases in which equity would not restrain an action at law, 100. general rule on the head of injunctions to restrain proceedings at law, 101, 102. equity would not interfere if case one in which the circumstances could be as well exercised at law as in equity, 101. jurisdiction not exercised on the mere ground of hardship, 102. No. 9.-WASTE. definition of waste, 107. what persons are impeachable of waste, 107. tenant for life opening new mines is impeachable of waste, 107. cutting down ornamental timber is waste, 107. continuing to work a mine lawfully opened not waste, 107. rights of tenant for life not impeachable of waste, 107. will be restrained if the waste'ia destructive or malicious, 107. materially damaging buildings is waste, 107. tenant for life without impeachment of waste may cut down timber fit to be cut, 108. lecus, if the acts are acts of mere destruction, 108. waste by person claiming title to land, 108. where act purely trespass, injunction not granted to restrain it, 108, 109. course of equity as to cnttrng timber where title to land in dispute, 109. observations on the distinction, 109. permissive waste, what is, 110. Court will not interfere against permissive waste by tenant for life, 110. where Court will not interfere against cutting down timber, even when decayed, 110. No. lO.-NUISANCE. general definition of, 121. what is pnblic nuisance, 121. private nuisance, 121. public and private may be combined, 121. distinction between pnblic and private, 121. what are the different classes of nuisances, 121. of the remedies against nuisance, 122. jurisdiction of eqnily in nuisances, on what founded, 122, 123. 260 INDEX. ^0. 10.— WniSASCE- continued. principle in eqnity, that jurisdiction as to granting injnnctions is exercised only in aid of legal right, 122, 123. of nuisance by pollution of water, 124. discharging refuse from factories into a river is nuisance, 124. actual damage must be shown, 124. passing sewage into water is nuisance, 124. private water is nuisance, though it may be a public benefit, 125. , generally, in the absence of legislative aathority,.private rights not interfered with on ground of public benefit, 127. where power is claimed by public body to injure private rights, the language of the Act of parliament must be ex- press, 127. to support an injunction against nuisance the nuisance most be . actual and not merely anticipated, 1 27. apprehension of nuisance not ground for an injunction, 127. delay not in all cases a bar to an injunction, 128. to support injunction there must be such injury as wonld entitle complainant to a verdict for damages, 129. nuisaned by noise, smoke, smell, &c., 129, by noise, 130. special injury to an individual may be ground of injunction though it may be also public injury, 131. in such a case Attorney-General not necessary party, 131. injury by noise; causing substantial injury, is ground for in- junction, 131. 132. Court will in such cases consider the locality and surrounding circumstances, 131, 132. monster fetes with music and noise for long periods is nuisance, 133. noise arising from a national school is not nuisance, 133. practice of Court of Equity, before the Judicature Acts, as to trial by a jury, 134. as to giving damages, 134. observations on effect of Judicature Acts, 135. nuisance by brick burning, 136. rights of individuals as to unpolluted air, 136. cases upoh brick bui-ning, 136, 137. brick burning not necessarily a nuisance per se, 137. actual injury to complainant must be proved, 137, 138. conclusions from the authorities, 137, 138. ■ nuisance by interference with light and air, 138. slight interference will not justify injunction, 139, 140. there must be substantial injury, 139, 140. discussion of the cases of Yates v. Jaoli, Jacltson v. Dulte of Nemeastle and Lanfranehi v. M'Kenzie, 141—146. general rules to be deduced from the authorities, 146, 147. No. 11.— COPYRIGHT. copyright miknown to the common law, 153. INDEX. 261 No. U.- COFYmGKT— continued. a legal right by statute, 153. Court of Equity interferes only on ground of legal title, 153. what does and what does not amount to infringement, 153 —156. of piracy of road books, maps, &c., 164. of works of compilation, containing some imitations, 154, 155. order made where there are piratical passages, 155. effect of similarity of errors, 165. observations on the doctrine, 156. copyright in lectures, 156. sermons, 166. musical composition, 157. what musical works may be copyright .under statutes, 157, 158. registration of, 157, 158. right of foreigner to copyright, 159. discussion of authorities on musical copyright, 169 — 162. as to infringement of musical copyright by arrangement of a full score, 162. No. 12.— TRADE MARKS. doctrine of equity as to trade marks, 167. whether question of property or not, 167, 168. equity protects trade marks, 168. effect where imitation clearly fraudulent, 168. jurisdiction exercised where defendant has infringed trade mark, being ignorant of plaintiff's, trade nlark, 168, 169. general rule as to granting injunction, 169. where there is approximation and not actual copy, 169, 170. not necessary to show actual deception, 170. distinctions as to extent of jurisdiction, 171, 172. agents of persons infringing trade marks,. 172, 173. name of a place may be a trade mark, 173. to justify injunction there must be actual deception, 174. conclusions from the authorities, 175. reference to Act of 38 & 39 Vict. e. 91, 1875. .175 et seq. No. 13.— PATENTS FOR INVENTIONS. foundation of jurisdiction of equity to restrain infringement of, 193. course of proceeding before the 25 & 26 Vict. c. 42. .193. present practice under the statute, 194. perpetual injunction when granted, 194. course of trial of patent cause in the Equity division, 194 et seq. delivery of breaches and objections, 195. issues to be tried, 195. as to trial with or without a jury, 195. trial may he either on oral or on affidavit evidence, 195, 196. what the breaches and objections should state, 196. inspection pending trial, 196. 262 INDEX. No. 13.-PATENTS FOR INVENTIONS— «o»n. Bedford ... 20 Page International Law. Deane' 57 Hamel 55 Pbillimore 23 Intoxicating Liquors Act. Oke 48 Joint Stock Campanies. Collier 9 Shelford 18 , 'Accounis. Pulling 65 Judicature. Baxter 35 Bedford 20 Kogers 35 Trower 16 Webb 35 Jurisprudence. On Form of the Law. Holland ... ... 64 Webb 35 Justiceof Peace, oke 48 Labour Laws. Davis 5 Land Settlements. Bund 5S Landlord and Tenant. Fawcett 13 Lands Clauses Acts. Ingram 38 Shelfotd ' 17 Law Dictio^ary ... S6 Law Student's Mag. so Law Studies. Mosely... 22 Snqiith ... 42 Leading Cases, Heat Property. Tudor 26 Leases. Crabb 28 Rouse 32 LegacyDnties.shelford 39 Libel. Starkie 14 Licensing Laws. Oke 48 life Assurance. - Blayney 66 lights (Window). Latham 31 Lbical Board Election. Glen 39 Local Government. Glen 39 Locus Stiandi. , Clifford & Rickards 30 Lunacy. - Phillips ... 63 Magisterial Law. oke 48 Forms, Oke ... 49 a2 o- INDEX TO CATALOGUE. Page Marine Insurance, Ciump 8 Maritime Warfare. Deane ' 57 Hamel 95 Masters and Servants. Baylis Davis ... 40 ... 5 Masters and Workmen. Lovesjr 51 Mayor's Court Practice Brandon ... 42 Memoirsof— Lyndhuretse Talfouid 56 Militia Laws. Dwyer S8 Mines and Minerals. Eainbiidge 22 !3. FUber... 60 Rouse... 32 Municipal Law. Caches 14 Grant 45 Naturalization. Cutler 29 Negligence. Saunders 33 Parliamentarjr. Clifford & Stephens . 30 May 25 Partnership. Dixon . 3S Tudor's Fothier ... 57 Patent Cases. Higginsli Patents. Norman ... 57 Petty Sessions. Oke. 48 Pews. Heales 37 Pleading, Common Zaw.Cbitty 54 Greening 57 'Williams .' S3 Equity.. Drewry ... 40 Lewis 21 Poor Law, Order*. Glen 53 Page Precedents, Conveyancing, Barry 36 Crabb 28 Rouse 32 Pleading. Cllitty,jun. 54 Pieliminaiy Exami- nation cTonmal ... 52 Principal and Surety. Be Colyai 12 Private Bills. Clifford & Stephens . 31 May 25 Private Law. Nasmith 24 Prize Law. Lushington 43 Probate, Practice. Coote .,. 15 Tiistram 45 Porms. Chadwick 31 Dutiei. Shelford ... 39 Provident Societies. Brabrook 43 Public Health. Glen S9 Public Law. Nasmith 24 Railways. Shel&rd ... 17 Compeneatiom Ingrain 38 Real Property. Tudor 26 Chart. Feame ... 58 Seaborne 40 Referees' Court. Clifford & Stephens . SO Registration. Davis... 35 Religious, Doctrine. Burder v. Heath 59 Diaciplvne. Long v. Cape Town 59 Reporting Cases. Cutleir 56 Ritual. Bayford ... 59 Hamel ... 59 Roman Law. Gains . 4i Ortolan's 30 Tomkins 40 Tomkins & Jencken 34 Salmon Fisheries. Bund 46 Page Servants. Baylis ... 40 Sewers. ■Woolrych ... 41 Sheriff's Court. Davis 10 1 Short Hand. Gumey 56 Slander. Starkie ... 14 Specific Performance. Fry 53 Stamp Laws. Dowell ir Stock Exchange. Keyser 55 Succession Duty. Shelford 39 Suit inEquity. Hunter 12 Summary Convictions. Oke ,.• « Tariffs and Treaties. Hertslet 37 Tenancies, Agricul- tural. Bund ... 9 Time Table. 'Bedford 20 Tithes. Schomberg ... 59 Torts. Underbill ... 31 Trade Marks. Adams 30 Treaties. Hertslet ... 37 Trusts, Charitable. Tudor 38 Turnpike Laws, ofce 49 Vendors & Purchasers. Seaborne 40 Water Companies Acts. Michael and Will ...33 WUls. Coote 15 Crabb 28 Tudor 26 "Wigram ... 44 Winding-up. Collier 47 Shelford 16 Window Lights. Latham 81 Wrongs. UnderhiU... Si ( 5 ) f afo maxkB i^nUm^th % Itessrs. §uttztb3ssxt^. DAVIS'S LABOUR I.AWS OP 1875. THE LABOUR LAWS OF 1875, with Introduction and Notes. By J. E. Davis, 'Esq., Barrister-at-Law, and late Police Magistrate for Sheffield. 8vo. 125. cloth. "Mr. Davis has something to say, and he knows how to say it. He has brought to the task information which is the result of many years* practice as police magistrate at Stoke -upon-Trent and at Sheffield. Looking at the work as a ■whole, we do not doubt that its com- prehensire spirit and no less com- mendable accuracy wDl procure for it the desired favouraUe reception. The magistrate who has not upon his shelves Davis's Labour Laws will only have him- self to thank if he is foiled by any dif- ficulty which may arise in the course of his adpoinistration. No less sincerely do we advise the practitioner to arm him- self with what will probably be the standard work on the subject. He will find the arrangement good, and the ex- planation of the procedure exceptionally lucid." — Zais Magazine. " This is a class of book which is very much wanted, and should receive every encouragement. Mr. Davis says that his object has been to combine a popular comment witlfastrictlypractical treatise. In this he has succeeded. Tliebook is in every respect careful and thoughtful, it gives the best reading of the law which we have, and furnishes in extenso all the Acts of Parliament relating to the BUlfject." — Zow Times. ^ " Mr. Davis's book is not a reprint of the acts with a few notes, but an original and complete treatise, and it will be ap- preciated by those who are concerned in the vrorking of the labour laws."— Xaw Journal. " 'The Labour Laws' are the subject of a treatise by Mr. J. E. Davis which magistrates and practltionera -will find useful."— Z>a«Zy News. "A. good book on this subject should fulfil two distinct functions by no means easy to combine. Mr. Davis has, in our opinion, successfully fulfilled both these requisites, and may be congratulated upon having- produced a book which will probably become the standard work on this important subject." — Solicitors Journal. " The best exposition that we know of, of the labour laws of the country." — Echo, " There is an excellent index, which adds to the value of the book for re- ference. There is much information in the Labour Laws of 1875, which is of importance to ironmasters, colliery pro- prietors and all employers of manual labour, and to them .we recommend Mr. Davis's book with confidence." — London Iron Trade Exchange^ LAW WORKS PUBLISHED BY POWEIiZi ON HVIDENCE. By CUTLER and GRIFFIN.- Fourtli Edition. POWELL'S PRINCIPLES and PRACTICE of the LAW of EVIDENCE. Fourtli Edition. By J. Cutlee, B.A., Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London ; and E. F. GrRiFFiN, B.A., Barristers-at-Law. Post 8vo. 18*. cloth. *** This edition contains the alterations necessary to adapt it to tlie practice under the Jwdicetture Acts, as well as other material additions. * ' The editors of this work put fbr ward *no claim to that exhaustiveness which other works dealing with the law of evi- dence aim at,' Their desire, on the contrary, is to 'adhere to the principle' of their author "of not overloading the book with cases.' We heartily ap- prove the principle; which, however, is somewhat difficult of appUcatioh. We must add, however, that in xaost In- stances the cases are tersely abstracted, and the convenience of the reader Is consulted by references to more thau one set of reports. The plan of the book is to give pretty frequenjly^ and, as far as we can discover, in almost every chapter, a * rule' of general appli- cation, and then to group the j;ases round it. These rules or axioms are printed in a distinctive type. The work has been pruned and remodelled by the light of the Judicature Acts. The authors give in an appendix the Indian Bvldence Acta, with some Indian deci- sions thereupon, and occasionally notice these acts in the text. On the whole we think this a good edition of a good book. Ij: brings down the cases to the latest date, and 1^ constructed upon a model which we should like to see more generally adopted." — Solicitors' JowtmI. "The plan adapted is, we think, an admirable one for a concise handy-book on the subject. Such maxims as that * hearsay is inadmissible,' are given at the head of the chapter in laige type, and then follow the explanations. The Indian code of evidence given at tiie end of the book deserves to be read by every student, whether going to India or t>ot. The few rules of the English law uf evidence which are purely statu- tory are also given verbatim, including the two orders of the Judicature Aet, 1875, which appear to he corrpptly ap- preciated. The present form of Powell on Evidence is a handy; well printed and carefully prepared edition of a book of deserved reputation and ^Uthority."-^ Law Journal. " We have received the fourth edition of 'Powell's Principles and Practice of the Law of Evidence,' by Cutler and Griffin. We are informed in the preface that the results of the Judicature Acts as regards evidence have been duly noted, whilst the work itself has been rendered more comprehensive. It is an excellent summary of principles." — Law _ Times. •'" There is hardly any branch of the law of greater interest and importance, not only -to the profession, but to the public at large, than the law of evidence. On this branch, of the law, moreover, as well as on many others, important changes have been effected of recent years. We are, therefore, all the more in- clined to welcome the appearance of the Fourth Edition of this valuable work." -r—Law Examination Journal. "In Powell's Law of Evidence, of which a fourth edition by Messrs. Cutler and Griffin has now been published, the Indian, Evidence Act and the rules of evidence adopted in the Anglo-Indian courts occupy a prominent place, and while this must form a special recom- mendation of the work to students in- tending to go to India, It is a feature which others besides will find reason to appreciate. To the general practitioner, however, the main value of the work must consist in its treatment of the law prevailing in this country and in England, and in this respect we confi- dently recommend the work to our readers. The principles and practice of the law of evidence in equity are also more fully treated than in any modern work on evidence with which we ate acquainted, and the provisions of the Judicature Aet, as well as the new English rules, have been incorporated with this edition, besides many impbf- tant statutes passed since the date (Ufiflj) of the preceding edition. To the sttt- dent we know no work on the law of evidence we cbuld more strongly recom- mend, and both branches of the proftS- fiion will find Powell's Law of Evidence a work which can be consulted with, confidence."— JHiftXda) 2Vmej. MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 7 STEPHEN'S NEW COMMENTARIES.-7tli Edit. 1874. Mr, SERJEANT STEPHEN'S NEW COMMEN- TARIES ON THE LAWS OP ENGLAND, partly founded on Blackstone. The Seventh Edition, by James Stephen, Esq., LL.D,, Judge of County Courts, late Professor of English Law at King's College, London, and formerly Recorder of Poole. 4 vols. 8vo, 4^, 4s. cloth, " '^? * position of the Work in reference to the Judicature Act, 1873, also seems to call for some remark, as the profession will naturally wish to know whether the changes introduced hy that important measure will be found embodied in the present edition. To this question I reply that the chief enactments of that; Act will ' be found in these pages, and that I have explained their effect to the student throughout to the best of my ability."— ^xiroci^m the Fre/ace to the 1th JEdition. From the '*Law Journal." "It is unnecessary for us, on this occa- sion to repeat the eulogy which six years ago we bestowed, in 186S,not without just reason, on the Commentaries as they then appeared. It has been remarked that Stephen's Commentaries enjoy the spe- cial merit of being an educational work, not merely a legal text book. Their scope is so wide that every man, no matter wb^t his position, profession, ' trade or employment, uan scarcely fail to find in them matter of special in- terest to himself, besides the vast fund of general information upon which every Englishman of intelligence may draw with, advantage." From Oie "Solicitor^ Journal.*' " A work which has reached a Seventh Edition needs no other testimony to its usefulness. And when a Jaw book of the size and costliness of these ' Com- mentaries' passes through many edi- tions, it must be taken as established that it supplies a need felt in all branches of the profession, and probably to some extent, also, outside the profession. It is difficult indeed to name a law book of more general utility than the one before us. It is (as regards the greater part] not too technical for the lay reader, and not too full of detail for the law student, while it is an accurate and (considering its design) a singularly complete guide to the practitioner. This result is due tn no small degree to the mode in which the successive editions have heen re- vised, the alterations in the law being concisely embodied, and carefully inter- woven with the previous material, form- ing a refreshing contrast to the la- mentable spectacle presented by certain works into which succeesive learned editors have pitchforked headnotes of cases, thereby rendering each edition more unconnected and confusing than its predecessor. As the result of our examination we may say that the new law has, in general, been accurately and tersely stated, and its relation to the old law carefully pointed out." From the " Law Times.'* "We have in this Work an old and valued friend. For years we have had the last, the Sixth Edition, upon our shelves, and we can state as a fact that when our text hooks on p^ticular branches of the Law have failed us, we have always found that Stephen's Com- mentaries have supplied us with, the key lo what we sought, if not the actual thing we required. We think that these Commentaries establish one important proposition, that to be of thorough pracr tical utility a treatise on English Law, cannot b6 reduced within a small com-r pass. The subject is one which must be dealt with comprehensively, and ah abridgment, except merely for the pur- poses of elementary study, is a decided blunder. Of the scope of the Com- mentaries we need say nothing. To all who profess acquaintance with the English Law their plan and execution must be thoroughly familiar. The learned Author has made one con7 spicuous alteration, confining 'Civil Injuries' within the compass of one volume, and commencing the last' volume with • Crimes,' — and in that volume he has placeda Table of Statute*: In every respect the Work is improved, and the preaent writer can say, from practical experience, that for the- Student and the Practitioner there is no better Work published than * Stephen'd Commentaries.'" From the " Law Examination Journal.'* '*This most valuable work has now reached its Seventh Edition. Those who desire to take a survey of the entire field of English Law cannot do better than procure this work. For a general survey of the entire field of English Law, or, at least, for a comparative survey of different branches of law, Stephen's Commentaries are unrivalled ; and we may observe that these Com- mentaries should not be used merely as a book of reference, they should be care- fully studied." LAW WORKS PUBLISHED BY CRUMP'S PRINCIFIiES OF MARINE INSURANCE. THE PRINCIPLES OF THE LAW RELATING to MARINE INSURANCE and GENERAL AVERAGE in England and America, with occasional references to Frencli and German Law. By F. Octavius Crump, of the Middle Temple, Esq., Barrister at Law. In 1 vol. royal 8vo. 2U. cloth. "This is decidedly a clever book. We always -welcome cordially any genuine eifoit to strike out a new line of legal exposition, not merely because Buch effort may more effectually teach, law, but because it may exhibit a better method than we now possess of express- ing law. The author does not venture tq use the tenn 'codification' in speak- ing of the design of this book. He is content if he has made a single step in advance towards simplification, and so much merit we have no hesitation in awarding to him. From the extracts ve have made it is manifest that the author has followed the fashion neither of the ordinary text book nor the plan of a digest of cases, but that he has developed a method nearly approaching to ' codification.* We have been at pains to search the book for many of the most recent cases in marine insurance, and although some of them are exactly of a character to puzzle and embarrass a codifier, Mr. Crump has dealt success* fully with them. We think we may fairly congratulate the author upon the production of a work original in design, excellent in arrangement, and as com- plete as could fairly be expected." — Law Journal. " The principles and. practice t>f general average are included in this admirable summary."— ^StoncZard. ** Mr. Crump, we may observe, in this treatise of the law of average and in- surance, has supplied a ready armoury of reference." — Shipping and Mercantile Gazelte. " Alphabetically arranged this work contains a number of the guiding prin- ciples in the judge-made law on this subject, which has got, into sucb a tangle of precedents that a much less careftil digest than that under the above title would have been welcome to stu- dents as well as merchants. Mr. Crump has made a very commendable effort at brevity and cleame8s."^£KQ(montM^. "There are many portions of it well arranged, and where the law is carefully and accurately stated."— £aw Magazine. "We rejoice at the publication of the book at the head of this notice. Mr. Crump is a bold man, for lie has positively made an innovation. Instead of a ponderous tome, replete with obso- lete law, useless authorities, and anti- quated quotations, we have a handy, clearly written, and well printed book, seemingly containing the whole law on the subject, in the shape of a digest of decided cases, in the very words of the judges, and leaving nothing doubtful and misleading to beguile the readei^. It is true that such a plan increases the trouble of the author, but as it diminishes that of the reader he may pardon th^ irregularity. Seriously speaking, Mr. Crump's book seems very perfect, and !b certrtinly very clear in its arrangement and complete in its details, conscien- tiously going into the most minute points, and omitting nothing of import- ance." — Irish Law T^mes, "It is at once a treatise and a dic- tionary on the difilcult and complicated branch of the law with which it deals, and to which Mr. Crump has in this volume done something to give an orderly simplicity."— 2)a^ JVew«. _" Considering the narrow compass within which it is comprised, we have been surprised to find how complete and comprehensive it appears to be, and If further experience should justify the expectations which our perusal of it induces us to form, Mr. Crump will not be disappointed in his hope that he has made a step in advance towards simpli- fication—not to u-se the term codification — of the law."— Solicitor^ Journal. " His design is to compile a digested summary of rules tersely expressed and easy of reference, and, though such a work can never supersede treatises like those of Arnould, Phillips or Duer, he has produced what will be a very useful manual of reference, and will guide the practitioner to the sources where he will find the principles more fully developed. The work, which must have involved great labour, appears to us to have been executed with fulness, accuracy and fidelity, and its value is much increased by references, not only to English and American decisions and text writers, but to the French and German law on the same s\ibiect."—SolicUorrjournai. ®- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 9 Cramp's Principles of Marine Insurance— continuefZ, "The plan of the book differs mate- rially, and, we think, advantageously, from the ordinary text book. By this system several advantages are secured. "We have examined several of Mr.Crump's propositions in order to test him on these points, and the result is decidedly in his favour. We have no hesitation in com- mending the plan of Mr, Crump's book. Its use in actual practice must of course be the ultimate gauge of its accuracy and completeness, but from the tests that we have applied we have little doubt that it will stand the ordeal satisfac- torily."^4(AeBfl?um. " The volume by Mr. Octavius Crump on the Principles of the Law of Marine Insurance and General Average- at- tempts what, we believe, has never be- fore been attempted in legal literature — namely, under an alphabetical classi- fication of subjects, to state principles without argument in such a manner as to dispense with the necessity for an index. The experiment is one which, if successful, seems to point the way to codification. This mode of treatment makes it easy for any one to follow the law from the beginning to the end of a marine risk." — Times, BUND'S AGRICUZiTURAI. HOLDINGS ACT^ 1875. The LAW of COMPENSATION for UNEXHAUSTED AGRICULTURAL IMPROVEMENTS, as amended by the Agricultural Holdings (England) Act, 1875. By J. W, Willis Bund, MA., of Lincoln's Inn, Barrister-at-Law, Author of " The Law relating to Salmon Fisheries in England and Wales," &c, 12mo. 5». cloth. " We think this design has-been well accomplished. The provisions of the new law are, on the whole, accurately stated and so clearly explained fhat the unprofessional reader will find it easy to understand their meaning and effect. In the Appendix he provides a series of useful forms." — Solicitorif Journal. **The chapter on the application of the act(Chap. 7) is clearly and concisely written, and the summaiT' at the end of the chapter, setting out the most im- portant points to be attended to by both l;mdlords and tenants, will be found very useful. The book is a good sup- plement to. any treatise on the law of landlord and tenant. The index is ex- haustive, and the collection of forms supplies all that can be required."— Zmo Magazine. *• It will be found very serviceable to all those who have to administer the Agricultural Holdings Act of last ses- sion, and by all practically interested in it, whether as landlords, tenants or valuers."— i?a«2y News. ' ' A more complete volume never came under our notice."— Worcester, fferald. " This is a simple and useful summary of the provisions of the present statutes on this subject, with orders and forms for practical application." — Standard. "It will enable any farmer or land- owner to understand precisely what are the conditions at present existing as to compensation for improvements by law and by custom of the country."— CAom- ber of Agricultture JouttuU. "He intends it for landowners, far- mers, land stewards and the like. ^ AH who have any interest in landed pro- perty may read it to advantage." — Land and Water. "We hope that this little book may realize the anticipation of its author and be of service to the classes for whose use it has been specially de- signed."— The Field. " Mr. Willis Bund has compressed into a simple and convenient form the information needful for understanding the bearing of the Agricultural Holdings Act on the law of compensation for un- exhausted improveinents."— >S ' We may congratulate Mr. Bund on having laid the law down very clearly to the lay mini.'*— QardeTier^ Chromcle, 10, LAW WORKS PUBLISHED BY DAVIS'S COUNTY COURTS PRACTICE AND EVIDENCE. —Fifth Edition. THE PRACTICE AND EVIDENCE IN ACTIONS IN THE COUNTY COURTS. By James Edward Davis, of the Middle Temple, Esq., Barrister-at-Law. Fifth Edition. 8vo. 38s. cloth. *»* This is the only work on tlte Counii/ Courts which gives Forms of Plaints and treats ftiUy of the liom (md Evidence in Actions and .other Proceedings in these Courts. Now published, uniform with the above, SUPPLEMENT TO DAVIS'S COUNTY COURTS. COUNTY COURT RULES AND ACTS OF 1875 and '1876. THE COUKTT COUET RULES, 1875 and 1876, with Forms and Scales of Costs and Fees; together with the County Courts Act, 1876, the Agricultural Holdings Act, 1875, and the Provisions of the Friendly Societies Act, 1875, and of other recent Statutes affecting the Jurisdiction of the County Court's, ■Forming a SUPPLEMENT to DAVIS'S COUNTY COURT PRACTICE and EVIDENCE, as also to the same Author's Practice in Equity, Banki-uptcy, &o. 8vo. 16«. cloth. *»* This work contains the important County Court Rules of 1876, affecting costs and various other matters, taking effect from the 3rd April, 1876, and lias been so arranged as to render it compl^ in itself, cmfit being also furnished with a com- plete amalgamated index as well as references to Sams's Practice in the County Courts (2 VoU ), it brings down the last published edition of that work to the present time. ' ■ • "The sweeping alterations in proce- Act, the Employers and Worjkine^ Act dure and in substantive matters of lavr and the Agricultural HoWin^s^Actf after compelled Mr. Davis either to prepare a which the Rules of 1875. a^d of the new edition ot his work or to edit a present year, with' Eorirrsi fables of Supplement. He has chosen the latter Costs, Court Fees, and the like, are course. Such disadvantages as are in- printed in exienso. The volUmSnsin hereut to a Supplement he has reduced a neat and handy form and well adapted to a minimum by numerous references for general use."-— ^w Journal, April and a full index to the whole work. ISA, lii76. The constant tinkering of rules both in "We have here in good type and con- the High Court and in the County Courts veniently arranged all the new legisla- affords but little encouragement to the tion, whether parliamentary or judicial, ' construction ofnew and complete works, relating to County Oourt6. The book and go far to justify the temporary ex- opens with the act of last session, shortly pedient of a Supplement. Some notion annotated; then follow the portions of can be gained of the extent of the new other acts passed last session which re- matter with which Mr. Davis has had late to County Courts; and, after these to deal from the fact that the volume the Consolidated Rules issued last year! before us contains, exclusively of the and the new Rules which came in force , index, 326 pages of matter. First is on Monday last. A very full index is given the text of the County Courts added, containing references, not only Act, 1875, with notes; then follows an to the present volume, but also to the analysis of several acts, amoiig wMch work to which it is intended as 4«upple- aie the Public Health Act, the Judica- meat." —Solicitors' Journal, April Sth, ture Act, 1875, the Friendly Societies 1876. DAVIS'S EQUITY AND BANKRUPTCY IN THE COUNTY The JURISDICTION and PRACTICE of the COUNTY COURTS in Eqiiity(including FriendlySocieties), Admiralty, Probate of Wills, Administration, and in Batftrnptcy. By J. E Davis, of the Middle Temple, Esq., Barrister-at-Law. 1 vol. 8vo. 18«. cloth. »,« Tills work, although issued separately, forms a Supplementary, or Second Volume to Dams's County Courts Practice and Evidence in Actions, ' MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 1 1 HIGGINS'S DIGEST OF PATENT CASES. A DipEST OF THE EEPORTED CASES relating to the Law and Practice of LETTERS PATENT for INVEN- TIONS, decided from the passing of the Statute of Monopolies to the present time. By Clement Higgins, M.A., F.C.S., of the Inner Temple, Barrister at La"w. 8vo. 21s. cloth. " Mr. !Higgins tell3 us in his preface that no opinion is expressed upon the cases digested, and no attempt is made* to reconcile conflicting decisions. Such an attempt would have failed, and have been out of place in a digest. Mr. Hig- gins's work will be useful as a work of reference. Upwards of 700 cases are digested: and, besides a table of con- tents, there is a full index to the subject matter; and that iadex, which greatly enhances the value of the book, must have cost the author much time, labour and thought." — Law Journal, *' ' This is essentially/ says Mr. Hig- gins in his preface, 'abook of reference.' It remains to be added whether the compilation is reliable and exhaustive. It is only fair to say that we think it is ; and we will add, that the arrangement of subject matter (chronological under each heading, the date, and double or even treble references being appended to every decision), and the neat arid care- fully executed index (whichis decidedly above the average) are such as no reader of 'essentially a book of reference * could quarrel with." — Solicitors* Journal. " Mr. Higgins has, with wonderful and accurate research, produced a work which is much needed, since we have no collection of patent cases which does not terminate years ago. There is not any brauch of the law in which analysis is so likely to prove the safe mode of exposi- tion as the patent law. The woik is well arranged, and gives brief, though comprehensive, statements of the various cases decided. We consider, too, if an inventor furnishes himself with this Digest and a little treatise on the law of patents, he will be able to be as much his own patent lawyer as it is safe to he."— Scientific and Literary Review. "The very elaborate Digest just com- pleted by Mr. Higgins is worthy of being recognized by the profession as a tho- roughly useful book of reference upon the subject. Mr. Higgins's object has been to supply a reliable and exhaustive summary of the reported patent cases decided in English courts of law and tfquity, and this object he appears to have attained. The classification is ex- cellent, being, as Mr,. Higgins very truly remarks, that which naturally suggests itself from the practical work- ing of patent law rights. The lucid 'style in which Mr. Higgins has written his Digest will not fail to recommend it to all who may consult -his book; and the very copious index, together with the table of cases, will render the work especially valuable to professional men." -^Mining Jowrnal. " The appearance of Mr. Higgin'9 Digest is exceedingly opportune. Th6 plan of the work is definite and simple. We consider that Mr. Higgins, in the production of this work, has met a long felt demand. Npt merely the legal profession and patent a^^ents, but pa- tentees, actual or intending inventors, manufacturers and their scientific ad- visers, will find the Digest an invaluable book of reference." — Chemical News. *' The arrangement and condensatioi^ of the main principles and facts of', the cases here digested render the work in- valuable in the way of reference."— Standard. " The work constitutes a step in the right direction, and,i5 likely to prove of much service as a guide, a by ho means immaterial point in its favour being that it includes a number of comparatively recent cases." — Engineer. "^ "Mr. Higgins has given us in a very natural and convenient order the re- curded decisions of the courts of law and equity in every branch of this great and diflicult subject. From these decisions the state of the law upon any point .connected with patents may be deduced. In fine, we must pronounce the book as invaluable to all whom it may concern." — Q^rterly Journal of Science. " On the whole, Mr. Higgin's work has been well accomplished. It has ably fulfilled its object, by supplying a reliable and authentic summary of the reported Patent Law Cases decided in English Courts of Law and Equity, while presenting a complete history of legal doctrine on the points of law and practice relating to its subject."— /rwA Law Times. 12 MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. DREAVRV'S FORMS OF CIiAIMS AND DEFENCES. POEMS of CLAIMS and DEFENCES in CASES i^tended for the CHANCERY DIVISION of the HIGH COURT OP JUSTICE. With Notes, containing an outline of the Law j-elating to each of the subjects treated of. By C. Stewae50 Drewry, of the Inner Temple, Esq., Barrister at Law, Author of a Treatise on Injunctions, and of Reports of Cases in Equity, temp. Kindersley, V.C, and other works. Post 8vo., cloth. (Jimt ready.) ROBSON'S BANKRUPT IiAVT.— Third Edition. A TREATISE on the LAW of BANKRUPTCY; containing a full exposition of the Principles and Practice of the Law as altered by the Bankruptcy Act, 1869. With an APPENDIX of the Statutes, Rules, Orders and Forms. By George Yotjng Robson, Esq., of the Inner Temple, Barrister at Law. Third Edition, thoroughly revised, and with the latest decisions. Svo. ^ (Very nearly ready.) HUNTER'S SUIT IN EQUITY.— Sixth Edition. An ELEMENTARY VIEW of the PROCEEDINGS in A SUIT IN EQUITY. With an Appendix of Forms. By S. J. Hunter, B. A., of Lincoln's Inn, Barrister at Law. Sixth Edition by G. W. Lawrance, M. A., Barrister at Law. Post Svo. 12s. cloth, DE COIiYAR'S LAW OF GUARANTEES. A TREATISE on the LAW of GUARANTEES and of PRINCIPAL and SURETY. By Henry A. De Colyak, of the Middle Temple, Barrister at Law. Svo. 14s. cloth. ."Mr. Colyar's work contains internal " The book is clearly -written, and the evidence thathe is quite at home with his author appears to have expended upon subject. Hisbook has the great merit of it much labour and thought. It is, -thorbughnesfi. Hence its present value, altogether, an admirable text book, and and hence we venture to predictwill be its lucidity deserves to be imitated b* its enduring reputation "—Law Kmes. the writers of law books." Echo. " The whole work displays gre*t care "The toangement of the work- is, in its production ; it is clear in its good, the subject is treated fully yet statements of the law, and the result of concisely, and an excellent index is the many authorities collected is stated added. The subject is one of consider- with an intelligent appreciation of the able importance, and its importance is subject in hand."— /wfece of the Peace. likely to be increased hy the operation " The vo ume before us is a very cleat of the Guarantee Companies Act 1867, and trustworthy statement of the pre- which, under certain conditions, enable* sent beating and scope of the law on all companies to provide for the guarantee such qaestiOBS."— Standard. of persons holding situations of trust " So far as we can judge, Mr. De under Government. ' The book will Colyarhasdonehisworkverythoroughly we think, be found of use ttf la* ato- indeed, and the treatise that he has pro- dents as well as legal practitioners "— duced is one likely to be of great value." Athentaim, ' • — Morning Advertiser, ©- o— LAW WORKS PUBLISHED BY 13 CHITTE'S EQUITY IN REIiATION TO COMMON IiAW. EQUITY UNDER THE JUDICATURE ACT, or the Relation of Equity to Common Law. By Ch'aloner William Chute, Barrister at Law ; Fellow of Magdalen College, Oxford ; Lecturer to the Incorporated Law Society. Post 8vo. 9s. cloth. " Mr. Chutt has a chance qf prolon$id existBHce, His book is not on tne Jtuttca- tvreAct, His nianDer is euiiueotly philo- sophical, and proves the capacity of the aalhor for the position of a lecturer, while it is just die kind of teaching by which atodeots are attracted to the light. Stu- dents may here coa^ratalate themselves on the possibility ot finding, within tha^ limits of two hundred pages, many of th^ chief doctrines of Equity, set forth briefly, lucidly and completely." — Law Journal. "All the more important branches of Equity are fully discussed by Mr. Chute ; and we may add that his style presents a very agreeable contrast to the general style of law books. In conclusion, we would heartily recommend this most in- structive and interesting wort to the perusal of the student, regretting that the limits of our space confine us to so brief a notice of it." — Xmp Examination B^orter^ '* Mr. Chute's lectures on Equity at- tracted considerable attention when they were delivered before the Incorporated Law Society, and he has done wisely in making them the basis of the present volume, which can scarcely fail to become a standard work on the subject of which it treats."— JMbrMiiv Post, ** The book is deserving of praise, both for clearness of exposition and for the in- terestinfjT way in which modern cases are used to illustrate the doctrines expounded. As it stands it appears to us to be a useful Kuide to the leading principles of Equity Jurisprudence. The oook is written in easy and familiar language, and is likely to prove more attractive to the student than many formal treatises."— ^/icitorj' Journal, " To the student commencing to study under the new system Mr. Chute's treatise may prove of sfrvice. He thinks clearl^i^t writfs very well. As a small and meri- torious contribution to the history of juris- prudence it deserves to be welcomed." — Law Times. " The work is conscientiously done, and will be useful to the student at the present moment ." — Echo. " Mr. Chute's book is founded upon lectures delivered by him to the students at the Law Institution. The object of it is to point out concisely the principles on which the doctriuesuf Equity depend, and to show the relation of equity to the common lawi and the work is a useful one for the class of persons to whom the lectures were delivered."— 4(A«ieKni. FAWCETT'S IiAW OF IiANDIiORD AND TENANT. A COMPENDIUM of the LAW of LANDLORD and TENANT. By William Mitchell Fawcett, Esq., of Lincoln's Inn, Barrister-at-Law. 1 vol, 8vo. 14s, cloth. " This new compendium of the law on a wide and complicated subject, upon which information is constantlyrequiied by a vast number of persons, is sure to be in request. It never wanders from the point, and being intended not for students of the law, but for lessors and lessees, and their immediate advisers, wisely avoids historical disquisitions, and uses language as untechnical as the subject admits." — Law Journal. " Mr. Fawcett takes advantage of this characteristic of modern law to impart to his compendium a degree of oirfAen- (tci^ wMch greatly enhances its value as a convenient medium of reference, for he has stated the law in tjie very words of the authorities."— Zaw Magtusine. ** The amount of information com- pressed into the book is very large. The plan of the book is extremely good, and the arrangement adopted has enabled the author to put together in one place the whole law on any particular branch of the subject, and to avoid repetitions. In this respect, though probably from its smaller size it must contain less informal tion than Woodfall, it wiU be found far more convenient for ordinary use than that treatise."— Soiiciior** Journal. '* Above all, it has been his purpose to state the law in the language of the authorities, presenting the principles enunciated in the very words of the judges. Another excellent feature is a concise summary of the effect of each enactment in the marginal notes. It will be seen ifom this that the book is thoroughly practical; and as such will doubtless find a favorable reception from the profession."- Zow Times, -© «?- 14 LAW WORKS PUBLISHED BY FOLKARD ON SIiANDER AND IiIBEIi.— Fonrtb Edition. THE LAW OF SLANDEE AND LIBEL (founded upon Starkie's Treatise), inclnding the Pleading and Evidences Civil and Criminal, adapted to the present Procedure; alsq MALICIOUS PjfeOSECUTIONg.and CONTEMPTS of COUETj By H. C. PoLKAED, Barrister at Law, In One thick vol. Eay. 8vo. 45s. cloth. CACHES' TOWN COUNCIIiIiORS AND BURGESSES IMANUAI.. THE TOWN COUNCILLORS AND BURGESSES MANUAL : a poptdar Digest of Municipal and Sanitary Law, with information as to Charters of Incorporation, and a useful Collection of Forms, especially adapted for newly Incorporateli Boroughs. By Louis G-aches, L.L.M., B.A., of the Inner Templ4 Esq., Barrister at Law. Post 8vo. 7s. cloth. ; \ HUNT'S LAW OF FRAUDS AND BII.I.S OF SALE. THE LAW relating to FRAUDULENT CONVEY- ANCKS under the Statutes of Elizabeth and the Bankrupt Acts; with Remarks on the Law relating to Bills of Sale. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law, Author of "A Treatise on the Law relating to Boundaries, Fences and Fore- shores." Post 8vo., 9s. cloth. " Mr. Hunt has brought to beat upon In reviewing that boolt last year we the subject a clearness of statement, took occasion, while praising the in- an orderliness, of arrangement and a dustry and care with which it was cora- subtlety of logical acuteness which piled, to remark on the obscurity of its carry him far towards a complete sys- style. In this respect its younger rival tematization of all the cases. Neither has considerable advantage. Mr. Hunt's has his industry been lacking : the cases book is as readable as a treatise on so that have arisen under " The Bank- technical a subject can well be made, ruptcy Act, 1869," and under the Bills Mr. Hunt's arrangement of his materials of Sale Act, have been carefully and follows an orderly and intelligible plan, completely noted up and disposed by The index is apparently carefully pre- him in their ippropriate places. The pared, and the table of cases shows that index also is both accurate and carefuX, rone of the recent cases have been over- and secures ijaueh facility of reference looked. Mr. Hunt has produced a really to the various matters which are the useful book unencumbered by useless subjects of the woik."— law Atagaaim. matter, which deserves gieat success as " Though smaller in size, Mr. Hunt's a manual of the law of fraudulent diS^ book deals with fraudulent conveyances positions of property."— Xow Journals under the Bankruptcy'Acts, a subject "The author has collected with in- which Mr. May in his work left almost dustry and care the authorities beailnK untouched, although his book has the on the question he has undertaken to undoubted inerit of being the first to deal with. The matter is conveniently break fresh ground in treating fraudu- broken up, and the readeris assisted by lent conveyances in a separate volume-. a good index."— SoKcitori" Journal ■ 0- MESSRS. BUTTER WORTH, 7 FLEET STREET, B.C. 15 COOTE'S PROBATE PRACTICE.— Seveath Edition, The COMMON FORM PRACTICE of the HIGH COURT of JUSTICE in granting Probates and Administrations. By Henry Charles Coote, F.BA., late Proctor in Doctors' Commons, Author of " The Practice of the Ecclesiastical Courts," &c. &c. Seventh Edition, In 1 vol. 8vo., 25s. cloth. *** The Forms as printed in this work are in strid accordance with the Orders of Court and. Decisipns of the RigTU Hon, Sir James Mannen and are those whidi are in ttse in the Principal Registry of tfie Probate Divisional Court. " The above is arother name forwhat is eommoDly known to the profession as Coot^'s Probate Practice, a work about us indispensable in a ^licitor's office as any book of practice that is known to us. The seventh edition is chiefly dis- f tinguishable from the sixth edition in thisi that certain important modifica- tions and alterations are effected which have been rendered necessary by the Judicature Acts. Judicial decisions subsequent to the last edition have been carefully noted, up. We notice several new and useful forms ; and the author haa not only attempted, but has in the main succeeded in adoptingr the forms and directions \inder the old Probate practice, as embodied in previous edi- tions of the work, to the new procedure under the Judicature Acts. Solicitors know that the difficulties in the way of satisfying the different clerks at Somerset Mouse are frequently great, and there is nothing so likely to tend to simplicity of practice as Mr. Coote's book." — Law Times. *' In less than twenty years the work has reached a seventh edition, and this new edition finds its raison d!Ure in the changes introduced by the Judicature Acts. Mr. Coote has set forth so much of the recent legislation as merged the Court of Probate in the High Court of Justice, and has explained the effects of such legislation as regards the subject matter of his book. He has also amended his forms in obedience to the new law. The edition , so far as t^ommon Form Business is concerned, maintains the reputation of the work, and in the present day, when every solicitor con- ducts Probate Business, will doubtless command the same popularity as those editions which have preceded It." — haw Journal. *' Nearly five years have elapsed since the publication of the last edition of this book, which has long held a high reputa- tion among solicitors, but we find little change in its contents. The Judicature Acts, which have rendered obsolete so many works of practice,, have le(t this almost untouched. The chief changes in this edition appear to be the altera- tion of the headings of many of the forms ; the insertion of several new cases and of some of the judgments of Dr. Bettesworth ; of the fees to be taken by solicitors and paid to the Court in Common Form Business, as directed by the Rules of 1874; and a considerable increase in the " number of forms in Non-contentious Business." — Solicitors' Journal. KEIiIiY'S CONVEYANCING DRAFTSMAN. THE DRAFTSMAN: containing a Collection of Concise Precedents and Forms in Conveyancing; with Introductory Observa- tions and Practical Notes. By James H-. Kelly. PostSvo. 6s. cloth. "Mr. Kelly's object is to give a few pre- cedents of each of those instraments which are most commonly required in a solicitor s office, and for which precedents are not always to be met with in the ordmary books on conveyancing. The idea is a good one, and the precedents contained m the boot are, generally speaking, of the character contemplated by the author's design,. We have been favourably impressed with a perusal of several of the precedents in this book, and practitioners who have already adopted forms of their ownwill probably find it advantageous to collate them with those given by Mr. Kelly. Each set of pre>- cedents is prefaced by a few terse and prac- tical observations,''— 5o/ici(oyj' Journal. " Such statements of law ana faces as are containeri in the work are accurate."— r X.aw Journal. . , . , " It contains matter not found in the more ambitious works on conveyancing^ and we venture to think that the student will find iea useful supplement 'to his read- ing on the subject of conveyancing."— Law Examination Journal. -o 16 LAW WORKS PUBLISHED BY TROVTER'S PREVALENCE OF EQUITV. A MANUAL of the PREVALENCE of EQUITY, under Section 25 of the Judicature Act, 1873, - amended by the Judicature Act, 1875. By Charles Francis Trower, Esq., MA., of the Inner Temple, Barrister at Law, late Fellow of Exeter College, and Vinerian Law Scholar Oxford, Author of ** The Law of Debtor and Creditor," "The Law of the Building of Churches and Divisions of Parishes," &c, 8vo. 5s. cloth.' SHELFORD'S JOINT STOCK COMFANIES.- Second Edition by PITCAIRN and LATHAM. SHELFORD'S LAWof JOINT STOCK COMPANIES, containing a Digest of the Case Law on that subject; the Companies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies; the Orders made under those Acts to regulate Proceedings in the Court of Chancery and County Courts ; and Notes of all Cases inter^ preting the above Acts and Orders. Second Edition, much enlarged, and bringing the Statutes and Cases down to the date of publicatioii. By' David Pitcairn, M.A., Fellow of Magdalen College, Oxford, and of Lincoln's Inn, Barrister at Law, and Francis Law Latham, B.A. Oxon, of the Inner Temple, barrister at Law, Author of " A Treatise on the Law of Window Lights." 8vo. 2l5. cloth. intelligent adhereuce to his propospd order and metbod. All decisions are noted and epitomised in tlieir proper places, tlie piactice-decisionsin the notes to Acts and Rules, and the remainder in the introductory account or digest. Id the dige.sl Mr. Fitcairn goes into every- thing with original research, and nothing seems to escape him. It is enough Torus that Mr. Pitcairn's perlbrmance is ab[e aod exhaustive. Kothiug is omitted, and everything is noted at the proper place. Id conclusion, we have great pleasure in recommending this edition to the practitioner. Whoever possesses it, and keeps it noted up, will be armed on all parts and points of the law of joint-stock companies " — Solicitor*' Journait ** Although nominally a second edition of Mr. Sheiford's treatbe it is in reality an original work ; the form and arrange- ment adopted by Mr. Shelford have been changed, and, we think, improved, by Mr. Pitcairn. A full and accurate ind ex also adds to the value of the work, the merits of whicA we can have no doubt will be fully recognized by the profes- siou,"— Xaiv MagaxiMw " We may at once state that, in our opiuion, the merits of the work are very grent, and we confidently expect that it will be, at least for the present, the standard manual of joint stock company law. That great learuiog and research have been expended by Mr. Pitcairn no one can doubt who reads only a few pages of the book; the result of each case which has any bearing upon the &ul>- ject under discussion is very lucidly and accurately staled. We heartily con- ^gratulate him on the appearance of this Vork, for which we anticipHte a great ituccess. There is hardly any portion of the law at the present day so important as that which relates to joint stock com- panies, and that this work will be the stand- ard authority on the subject we have not the shadow of a doubt." — Lata Journal. "After a careful examination of this work we are bound to say that we know of no other which surpasses it til two alt-important attribiUes of a law book ; first, a clear conception on the part of the author of what he intends to do and how he intends to treat his subject ; and secondly, a consistent, laborious and ©- SHEIiFORD'S RAII.1VAYS.— Fourfb Edition, by Glen, SHELFORD'S LAW of RAILWAYS, containing the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland. With Copious Notes of decided Cases upon the Statutes, Introduction to the Law of Railways and Appendix of Official Documents, Fourth Edition, by W. Cunningham Glen, Barrister at Law, Author of the **Law of Highways," "Law of Public Health and Local Government," &c. 2 vols, royal 8vo. 63s. cloth. ** Though we have not had the oppor- tanity of goios conscientioiisly through the whole of this ^aborate compUatioa, we have been able to devote enaueh time to it to be able to speak in the highest terms of the judgmeut aod ability with which it has been prepared. Irs execu-^ tion quite justifies the reputation which Mr. Ulen has already acquired as a legal writer, and proves that no one conld have - been more properly singled out for the duty he has so well discharged. TAe vtork Hiust take its unquestionable jjosition as the leading Manual of the Railwap Lazo pf Great Britain The cases seem to have been examined, and their effect to be stated with inach care and accuracy » and no channel from which in- formation could be gained has been neg- lected. Mr. GleDt indeed, seems to be saturated with knowledge of his subject. . . . The value of the work is ^eaily in- ereased by a number of supplemental de- , cisions, which give all ihe cases up to the lime of publication, and by an index which appears to be thoroughly exhaustive." — iiABr Magazine, '* Mr. Glen has done wisely in preserving that reputation, and, as far as pos:iibIe, the text of ."^hel ford— though very extensive alterations and additions have been re- quired. But he has a claim of his own. fie is a worthy successor of the original author, and possesses much of the same industry, skill in arrangement and astute- ness in enumerating the points really de- cided by cited cases. But we have said enough of a work already so well known." •~£aB7 Times. '^'M.^ Glen has modestly founded his work as a superstructure on that of Mr. Leonard Shelford, but he has certainly claims to publish it as a purely indepen- dent composition. The toil has been as great, and the reward ought to be as complete, as If Mr. Glen had disregarded all his predecessors in the production of treatises on railway law Since the year 1864 he has been un- ceasingly engaged in collecting materials, and though ae has been ready for the printer for some time, and has delayed the appearance of the volumes in the expecta- tion of legislative changes in railway law, yet he has expended full five years of care and attention on his work. Let us hope that he will have no cause to thiuk His labour has been in vain. At 0713/ rate we may venture to fredictftliat Mr. Cunning- ham Glen's edition ofShelford on Hallways loill be the standard work of oar day in that department oflawJ^—Laa Journal. " Far be it from us to uoder value Mr. Shelford's labours, or to disparage his merits. But we may nevertheless be per- mitted to observe that wAa< has hitherto been considered as ' the best work on the subject ' CShel ford), has been immeasurably improved by the application of Mr. Glen's diligence und learning, . . . Sufficient, however, has been done toshowthatitisineveryrespect worthy of the reputation which the work has always enjoyed."— Jtudce of thePeace, *'The practitioner will find here col- lected together all the enactments bearing on every possible subject which may come before nim in connection with railways or railway travelling. Whatever yues- tioDs may arise the lawyer, who has this bonk upon his 5he1ve3,''^ay sa^ to him- self, ' If there has been anv legislation at all connected with this branch of the subject I shall at once find it in Shel- ford ;' and it needs not to be said that on this account the book will be a very * com- fortable' one tu possess. The collection is equally exhaustive in the matter of rules, orders, precedents mid documents of official anthoiity."— &/i«'/o«* Jbttmfl/. HOWEJmIm'S stamp duties and stamp IiAWS. A HISTORY and EXPLANATION of the STAMP DUTIES, containing Remarks on the Origin of Stamp Duties, a History of the Duties in this Country from their commencement to the present time, Observations on the past and the present State of the Stamp Laws, an Explanation of the System and the Administration of the Tax, Observations on the Stamp Duties in Foreign Countries and the Stamp Laws at present in force in the United Kingdom ; with Notes, Appendices and a copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Kevenue. 8vo, 12s. Gd, cloth. "O 18 LAW WORKS PUBLISHED BY GRANT'S BANKERS AND BANKING COMFANIES, hf R. A. Fisher. \ GRANT'S TREATISE on the LAW RELATING TO BANKERS AND BANKING COMPANIES. Third Edition. With an Appendix of the Statutes. By R. A. Eisher, Esq., Judge of County Courts. 8vo. 28». cloth. " Eight ye the canons of legal authorship, and never gives a statement without an au- thority or offers a conclusion which is not manifestly deducible from established facts or authoritative utterances, yet so lucid is his style, we had almost said so popular, 80 clear is the enunciation of principles, so graphic the historical uortions. that the book may be read with pleasure as well as profit."— iaw Journal. ' " it is tbe most complete repository of Sntters bearing upon international law at we have in the language. We need not repeat the commendations of tbe text itself as a treatise or series of treatises which this journal expressed upon the appearance of the two first volumes. The repntatiou of the Author is too well established and too widely known. We content ourselves with testifying to the fulness and thoroughness of the work as a. compilation after an inspection of tbe three volumes (second editidn>."— JSor/on (.Untied States^ Daily Advertiser. "Sir Kobert Phillimore, may well be Etoud of this work as a lasting record of is ability, learning and his industry. Having read the work carefully and critically, we are able to highly recom- mend it. Usually when such a work reaches a second edition critical com- meodation is superfluous, but the present is an exceptional case, because Phillimore's Comoientaries will be of the greatest use to many uon-professioual readers who, as public men and public writers, find it necessary to study ioternationat law. It is in itself a well digested body of laws." —Uiw Journal (secofid notice^. " We have withtn a short period briefly noticed the previous volumes of the im- portant work of which the fourth volume is now before' us. We h"»v6 more than once recognized the ability and profouod research which the learned author has brought to bear upon the subject, but this last volume strikes us as perhaps the most able aud lucid, and, in addition to these merits, it deals with a division of inter- national jurisprudence which is of very great interest, namely, private interoa- tional law or comity. Ibe iiisue of a second edition proves that it ha» attained a position of authority and is favourably received by international jurists. We have no grounds for impugning its accuracy, and as a compilation it must receive our acknowledgment that it is able and learned." — Law Times. " The latest arrivals bring us Vol. 4 of this great work, it is the close of the second edition begun a few years ago. Sir Kobert Phillimore has one great advantage over new commentators on International Law,,, in that he is and has always been a work- ing publicist, judge and parliamentarian, and not a mere student oithe closet Itis his life-long habit to look at things in a practical way in tbe concrete and to judge of propositions by their adaptation tried or probable to the working world of public transactions. The reputation and autho- rity of Dr, Phillimore on tbis side of the water are too well known and established to require any general commendation of this work. It is enough to recognize the fact that private international law is be- coming 01 mure and more importance with the vastly increased opportunities for pri- vate dealings between citizens or inhabi- tants of different nationalities and to changings of domicil and habitaucy, aud to express gratitude that the learned, expe- rienced and thorou|;h commentator has made the latest contribution towards peace and good understanding among civilized men.*'— Bosion (.United States) Daily Ad- vertiser, Dec, 3, 1874 (second notice). 24 -~< LAW WORKS PUBLISHED BY MASMITH'S INSTITUTES. THE INSTITUTES of ENGLISH PUBLIC LAW, embracing an Qjitline of General Jurisprudence, the Development of the British Constitution, Public International Law; and the Public Municipal Lavf of England. By Uavid Nasmith, Esq., LL.B., of the Middle Temple, Barrister at Law, Author of the Chronometrical Chart of the History of England, &c.. Joint Translator of Ortolan's History of Roman Law. Post 8vo., 1 vol. 12s. cloth. " We believe the plan of the book is the right one." — Law Magazine. THE INSTITUTES of ENGLISH PRIVATE LAW, I embracing an Outline of the Substantive Branch of the Law of Persons and Things, adapted to the New Procedure. By David Nasmith, LL.B., of the Middle Temple, Barrister at Law, Author of " Institutes of English Public Law," &c., &c. In 2 vols, or books, post 8vo. 21s. cloth. *Mr. Nasmlth's * Institutes of Pri- vate Law ' is a very careful and popular compilation."— 2>o«7y yews. " In these Tolumes, dedicated to the Iiord Chancellor, Mr. Nasmith gives an elementary, though detailed, exposition of the substantive branch, of English private law, the subject being divided into two books, which treat respectively of the law of persons and the law of things. Altogether the treatise is a capital Qne."~Standard* " It is an admirably arranged and most useful manual, and — which, can certainly be said of few law books— is written with so much literary skill and felicity of illustration that it may be read with, interest by others than law students. Mr. Nasmith is evidently a thorough master of hi^ subject, and his book, as far as we are competent to judge of th.e matter, leaves absolutely nothing to be desired." — Echo. " In his account of tenures, titles and estates, Mr. Nasmith is particularly happy, and yre think his second volume, treating of things, is, for its size, more complete and clear in its exposition of the law of property than any other work with which we are acquainted. The plan and exception of the work in its material and essential parts are excel- lent."— /rwA LeoB Times. " As a scientliic text-book it well de- serves the attention of the student."— The Scotsman. " llisbook is the result of much labour and learning, and is a worthy successor to his ' Institutes of English Public Law.' " — Glasgow HercHd. ,- * ; "This book will be like its pxedeir> cesser, not only a great boon to th^ student of law,. but will also assist .1il^^^,;:: reading of all who desire to add someaib^ j,.- quaintancewithEng1i5hlawtotheiT8tQc!ici^ of general information."— 77ie JRecorA..-''t " Mr. Nasmith is thoroughly fajidfiaj^::^ with the fundamental legal princiSlBls^ by which our daily life is regulated, SB^', \ in these Institutes he has produced,|St' work which may be read with advant^i|(. < by University law students and all ^Ob/.^ are engaged in the study of English" juiisprudence." — Oa;ford Chronicle^ -"Jf,- CIiARK'S DIGEST OF THE HOUSE OF IiORDS CASES. A DIGESTED INDEX to all the REPORTS in the HOUSE of LORDS, from the Commencement of the Series by Dow, in 1814, to the end of the Eleven Vohimes of House of Lords Cases; with references to more recent decisions. By Charles Clark, Esq., Q.C., Reporter by Appointment to the House of Lords. 1 vol., royal 8vo. 31s. 6rf. cloth. " The decisions of the supreme tribu- nal of this country, however authorita- tive in themselves, were not, until of late > ears, at all familiar to the great body of the legal profession ; the early reports of them being in the hands of but few persons. In that tribunal, more than in any'other, questions can be con- sidered, as they have been, upon purely legal principles, freed from the fetters and obstructions of mere precedent* The acknowledged eminence of the noble and learned persons by whom the decisions have been pronounced, gives them a value beyond their official autho- rltativeness. It is hoped that this Di- gest will have the effect of making the profession at large familiarly acquainted with tliem,"—Pr^Ie extent to have passed out of t^e ralige of criticism. It is quite unnecessary to point out the ex- cellent arrangement, accuracy and com- pleteness which long ago rendered SirT. iL, May's treatise the standard work on the law of Parliament, ^ot oulyare points of Parliamentary law discussed cr decided since the publicatiou of the last edition duly noticed in their places, but the matter thus added is well digested, tersely pre- sented and carefully interwoven with the text."— iSo/iciVorj* Journal, " Fifty pages of new matter have been added by sir Thomas May in his sevenih edition, thui comprising every alteration in the law and practiceof ParfiameDC, and all material precedents relating to public and private business since the publication of the sixth edition. We need make no com- ment upon the value of the work. It is an accepted authority and is undeniably the law of Parliament. It has been brought up to the latest date, and should be in the hands of every one engaged in Parlia- mentary life, whether as a lawyer or as a senator."— Zaw Times. FUIiTON'S MANUAZi OF CONSTITUTIONAIi HISTORY. A MANUAL OF CONSTITUTIONAL HISTORY, founded on the Woi'ks of Hallam, Creasy, May and Broom: comprising all the fundamental principles and the Leading Cases in Constitutional Law, By Forrest Fulton, Esq., LL.D., B.A., University of London, and of the Middle Temple, Barrister at Law. Post 8yo. 7s. 6d. cloth. roughly useful and xeliable."— CiwV Ser- vice Gautie. '*The general reader will be much pleased with the ch^ters on the privileges of parliament."— 5ra»jrforrf- A good reference book, as well as a book that ought to be read in the first iu- stance straight through."— JuAn Buii. " 'i'he author has spared no paios, and has succeeded in the somewhat difficult tank of Dresentinp th*! results of a wide range of reading in a well digested form. Air. Fulton may be congratulated upon the very successful accomplishment of a by no means easy task: his book supplies a felt v/aBt."^PuAlic Opinion. ** Mr. Fulton fans compiled a Manual of Conslitntional History to aid beginners in their studies: the extracts he has given from his authorities appear to be well chosen,"— UfliVi/ News. . " It is Useless for an ordinary student simply to read a ponderous work on the Constitution, unless at the same timf; he is able to assimilate its results. Mt. Fulton hSs recognized this dlfhcult/r and the re- suft is the truly admirable little manual to whichwe call the attention of oar readers.^' -^Canadian News., ' '* AfUr carefully looking through the several chapters, we may fairly say the book is well done, and that the object of iidingthe student in his first entry on the wide study of Constitutional Xaw and History is attained."'— Ti(e Law. " Copious use has been made by Mr. Fatton of all the leading, authorities on Ihe subject, and he writes clearly and intelligibly. There is a full andcarefully prepared Index."— Xa» Timea. " The method of its arrangement js decidedly original and well calculated to meet the object with which the book was written, namely, to assist law students in preparing fur their examinations, as his- tory now very properly forms an impor* tant part in all legal examinations, Mr. Fulton's, for practical information, and for student's purposes, is by far the best Manual of Constitution at History with which we are acquainted." — Irish Lavf Times. ** So far as it goes it is not without merit. The former part is written with care and cleaniesa-"- &/i«Vffr/ Journal, •* The work before us is one which has long been wanted, and Mr. Fnlton appears to have taken great pains to make it tho- 26 LAW WORKS PUBLISHED BY TUDOR'S LEADING CASES ON REAIi PROPERTY. Second Edition. ' A SELECTION of LEADING CASES on the LAW relating to REAL PROPERTY, CONVEYANCING, and the CONSTRUCTION of WILLS and DEEDS; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister at Law, Author of "Leading Cases in Equity." Second Edition. One thick vol. Royal 8vo. 425. cloth. " The Second Edition is now before us, find we are able to say tliat the SHtne ex- tensive knowledgeand the same laborious industry as have been exhibited by Mr. Tudor on former occasions chiiracterize this latpr production of his legal autlioi- ship : and it is enouah m this moment to reiterate an opinion that Mr. Tudor has well maintained the high Irgal reputation which his st»ndard works have achieved in all countries where the English Ian. guage is spoken, and the decisions of our Courts are quoted." — Laa Magaune and Jteviea. *' The work before us comprises a digest of decisions which, if not exhaustive of all tlie principles of our real property code, will at least be found to leave no- thing untouched or unelaburated under the numerous legal doctrines to which the cases severally relate. To Mi.Tudor's treatment of all tliese subjects, so com- plicated and so varied, we accord our entire commendation. There are no umis- sions of any important cases relative to the various branches of the law comprised in the work, -nor are ther^e any omissions or defects in his statement of the law itself applicable to the cases discussed by him. We cordially rrcommend the work to the practitioner and student alike, but especially to the former."— &/i«lorj* Journal and Reporter* " In this new edition, Mr. Tudor has carefully revised his notes in accordance with subsequent decisions that liave modi- fied or extended the law as previous!^ expounded. This and the other volumes of Mr. Tudor are almost a law library iu themselves, and we are satisfied that the student would learn more law from t!ie careful reading of them, than he would acquire from double the time given to the elaborate treatises which learned pro- fessors recommend the student to peruse, with entire forgetfulness that time and brains are limited, and that to do what they advise would be the work of a life." -~Lau Timet, " Tins well-known work needs no re- commendation. Justice, however, to Mr. Tudor requires us to say that familiarity with its pages from its first appearance have convinced us of its value, not only as a repertory Qf cases, but a judicious summary of tlie law on the subjects it treats of. So far as we can see, the author has brought down the cases to the latest period, and altogether there have been added about 170 pages- of notes in the present edition. As a guide to tlie present law the book will now be of great value to the lawyer, and it will be especially useful to him wh@n away from a large library." — Juritt, BROWNING'S DIVORCE AND MATRIMONIAIi PRACTICB. THE PRACTICE and PROCEDURE of the COURT for DIVORCE AND MATRIMONIAL CAUSES, including the Acts, Rules, Orders, Copious Notes of Cases and Forms of Practical Proceedings, with Tables of Costs. By W. Eenst Browning, Esq., of the Inner Temple, Barrister-at-Law. Post Svo. Bs. cloth. CUTIiER AKD GRIFFIN'S INDIAN CRIMINAIi liAlV. An ANALYSIS of the INDIAN PENAL CODE, in- cluding the INDIAN PENAL CODE AMENDMENT ACT, 1870- By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of English Law and Jurisprudence^ and Professor of Indian Jurispru- dence at King's College, London, and Edmund Fuller Griffin, B. A.^ of Lincoln's Inn, Barrister at Law. 8vo. 6s, cloth. " It may lie added that the Code la just, at present, out of print, so that the ' j^roduction of an analysis at the present moment is especially opportime. Messrs. Cutler and Griffin have produced a use- ful little book, and produced it at ia. time ■when it will he especially useful," — Solicitor^ Journal. GOIiBSMITH'S EQUITV.— Sixth Edition. THE DOCTRINE and PRACTICE of EQUITY: or a concise Outline of Proceedings in the High Court of Chancery, de- signed principally for the Use of Students. Sixth Edition, according to the recent Statutes and Orders. ?y George Goxdsmith, Esq., M.A., BaiTister-at-Law. Post 8vo. 18s. cloth. " A well-tnown law student's hoofc, the best, because the most thoroughly complete,yet simplified, instructorin the principles of equity that has ever been provided for him, and that its value has been recognized by those who have made use of it is proved by this, that their commendations have carried it to a sixth edition."— Zaw S^mes. "The whole work ia elaborated by Mr. Goldsmith with evident care and a determination to deal with all that can come within the scope of the title. It is characterized by comprehensiveness and at the same "time conciseness, by clearness of diction and attractiveness of style and avoidance of technicalities which might prove embarrassing to the student, and a close adherence to the purpose as expressed in the preface.— Lata Jourual. " Altogether the author's method and his execution are alike commendable — and we are of opinion that the lawyer, who, as a student, avails himself of the primary intention of Mr. Goldsmith's work by finding in it Ms first equity reading book or primer, will afterwards verify the anticipation of the author by making of it dileetu Juvenili or vade mecum in his later practice." — Law Magazine. "It is difficult to know which to praise most, the excellence and dignity of the style, or the exhaustiveness of the information furnished to the reader. Mr. Goldsmith's plan corresponds to some extent with that adopted by Mr. Hayces in hia excellent * Outlines of Equity,' but his work is more com- plete than that of Mr. Haynes." — Law Examination Journal. "If a student were confined to the selection of one book on equity, both fur its doctrine and practice, h6 could hardly do better than choose the one before us." — Solicitors* Journal. CHRISTIE'S CRABB'S CONVEVANCING.— Fifth Edition, liy Shelford. CRABB'S COMPLETE SERIES of PRECEDENTS in CONVEYANCmG and of COMMON and COMMERCIAL FORMS in Alphabetical Order, adapted to the Present State of the Law and the Practice of Conveyancing; with copious Prefaces, Obser- vations and Notes on the several Deeds. By J. T. Christie, Esq., Barrister-at-Law. The Fifth Edition, with numerous Corrections and Additions, by Leonard Shelford, Esq., of the Middle Templej^ Barrister-at-Law. Two vols. Royal 8vo. 3/. cloth. *»* Thi£ worh, which embraces both the Prineiptes as well as the Practice of ConveyaneiHf, ■- contains likewise every description of Form wanted for Commercial Purposes. General Table of Heads of Fhefaces and Fobus. AbBtracts. — Accounts, — Acknowledgments. — Acquittances. — Admittances. — ^Affl da- vits, Affirmations or Declarations'.'^Agreements : to relinquish Business ; to Guarantee : for a Lease : before Marriage ; lor a Partition : between Principal and Agent : for the Sale and Purchase of Estates : for Sale of Copyhold Estates- : for Sale of Leaseholds ; for Sale of an Advowson. — Annuity : secured on Copyholds^ — Annuities ; Assignments of. — Appointments : of Guardians. — Apportionment^ — Apprenticeship : to the Sea Service : to an Attorney : Assignment of. — Arbi- . tration ; Award. — Assignments : Bonds ; Leases : Patents : Pews : Policies of Insurance : Reversionary Interests. — Attestations. — Attornments. — Auctions : Particulars of Sale.— Bargains and Sales : of Timber.— Bills of Sale of Goods.— Bonds; Administration; Receiver pending Suit : Post Obit: Stamps on.— Gei> tificates.— Composition; Conveyances in Trust for Creditors.— Conditions ; of Sale. — Confirmations. — Consents. — Copartnership : Dissolution of Copartner- sliip.— Covenants : Stamps on : for Production of Title Deeds.— Declarations.— Deeds : I. Nature of Deeds in General : II. Requisites of a Deed : III. Formal ' ■ parts of Deeds : IV. Where a Deed is necessary or otherwise ; V. Construction of Deeds ; VI. Avoiding of Dpeds : VII. Proof of Deeds : VIII. Admission of Parol Evidence as to Deeds : IX. Possession of Deeds : X. Stamp Duty on Deeds. — Defeasances. — Demises. — Deputation. — Disclaimers. — Disentailing Deeds. — Distress : Notices of.— Dower. — Eni^anchisements. — Exchanges.— Feoffments. —Further Charges.— Gifts.— Grants.— Grants of Way or Road.— Indemnities.— Leases ; I. Nature of Leases in General : II. Requisites to a Lease : III. Parts ofaLease: IV. Incidents to a Lease : V. Stamps on Leases.— Letters of Credit. — rLicences. — Mortgages: of Copyholds: of Leaseholds: Transfer of : Stamp Duty on.— Notes, Orders, Warrants, &c.— Notices: to Quit.— Partition Powers : of Attorney.— Presentation. — Purchase Deeds : Conveyance of Copy- holds : Assignments of Leaseholds : Stamps on. — Recitals. — Releases or Convey- . ances: or Discharges. — Renunciations or Disclaimers. — Resignatiojns. — Revoca-* tions.-Separation.— Settlements : Stamp Duty on.— Shipping : Bills of Lading : Bills of Sale : Bottomry and Uespondentia Bonds ; Charter Parties.- Surrenders. —Wills : 1. Definition of Will and Codicil : 2. To what Wills the Act 7 Will. 4 & 1 Vict. c. 26 does not apply : 3. What may be disposed of by Will: 4. Of the capacity of Persons to make Wills : 5. Who may or may nM be Devisees: 6. Exe- cution of Wills : 7. Publication of Wills ; 8. Revocation of Wills : 9. Lapse of Devises and Bequests : 1 0. Provisions and Clauses in Wills : 1 1. Constructloh of Wills. 'Incsrefulnesswehave inhim asecood ation of it to the notice of those for whose Crabb, in erudition Crabb's superior; and service it has been so laboriously com- the reaalt is a work of which the origioal piled."— £aa) Times, author would have been proud, could it " Mr. Shelford has proved himself in have appeared under his own auspices. It this task to be not nnworthy of his former IS not a book to be Quoted, nor indeed reputation. To those familiar 'widi his could its merits be exhibited by .quotation. other wmls it will be a sufficient recom- It IS essentially a book of practice, which nieodation of this work that Mr. Shelfbrd'i can only be described in rode outline and name appears on the title-paKe: if there dismissed with applauscand arecommend- be any who are not well acquainted with MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 29 ChriBtie's Crabb's Conveyancing— continued. them, we venture to recommend to such effected valuable ^ improvementa."— Xau Uie work before us. as the most generally Magaxins and Review. lueful and convenient collection of prece- ** It possesses one distinctive feature in denta in conveyaucing, and of commercial devoting more attention than usual in such forms for ordinary use, which are to be works to forms of a commercial oaturbw had in the English language."— &/i«.>^.a -■ V ■-••*»^— — - ^- - _-.- J j.^-.-^ ^ — ^ J ** 1 — have already beeD able Co afford this work, very numerous precedents ; indeed we know we are able to affirm, that the learned of no book so justly entitled to the ap- editor has been eminently successful and pellBtioo of ' handy' as the fifth edition of Mr. Crabb*5 Precedents,"— £awCAr«iic«. CXTTIiER'S IiAW OF MATURAIiIZATION. THE LAW of NATURALIZATION as Amended by the Actof 1870. By John Cdtier, B,A,, of Lincoln's Inn, Barrister at Law, Editor of " Powell's Law of Evidence," &c. 12mo, 3s.6<2.c1oth. " Professor Cutler's book is a useful able the reader fully to compreheiid the aummary of the law and of the changes present state of the law Uptth this most Trhich have been made in it. The act is important subject."— JiMftoeo/ttePeoce. riven in full withauselU index."— iaw "The author's position as Professor Magazine. of English Law and Jurisprudence 19 a "Mr Cutler, in the work before us, guarantee ofhis legal competence, whilst lucidly explains the state of the law pre- his literary abilities have enabled him vious to the recent statute, and shows to clothe his legal knowledge in lan- tbe alterations produced by it, so that guage which laymen can understand s careful perusal of his hook will en- without being misled by it. —John Bull. COOTE'S ADMIKALTY PRACTICE.— Second Edition. The PRACTICE of the HIGH COURT of ADMI- RALTY of ENGLAND: also thePractice of the Judicial Committee of Her Majesty's Most Hon. Privy Council in Admiralty Appeals, with Forms and Bills of Costs. By Henry Charles Coote, F.S.A,, one of the Examiners of the High Court of Admiralty, Author of ••The Practice of the Court of Probate," &c. Second Edition, almost entirely re-written; and with a SUPPLEMENT conlaimg the County Court Practice m Admiralty, the Act, Rules, Orders, SfC. 8vo. 16s. cloth. ..» ThU mn-h amiaim etiery Comrnm Form in me tg the PracHlioner in Admiralty, «» ,^tt> every detorqMm of Bill 0/ Cont. in that Court, a feature poiseiml by no ttOier tcort on the Practice in Admiralty. ■■ Mr. Coote. b«"f " j^^rjulo?* lKd.?Jli'fS!i'g%hkt'A\''!;rS'.'«o .^,S?.^?pVn.'n\T£tT.t".fwE*h''£. ?heTraititio/er."iz.»JU«,«.«. — — B- 30 , - LAW WORKS PUBLISHED BY ADAMS'S I.AW OF TRAbE-MARKS. A TREATISE on the LAW OF TRADE-MARKS ; with the Trade-Marks Regulation Act, 1875, and the Rules issued in pursuance tljerebf by the Lord Chancellor. By P. M. Adams, of the Middle Temple, Esq., Barrister at La-w. 8vo. a. clothe CLIFFORD & STEPHENS' REFEREES' PRACTICE, 1873, THE PRACTICE of the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT; with Reports of Cases as to the Locus Standi of Petitioners decided during the Sessions 1867-72. By Frederick Clifford, of the Middle Temple, and Pembroke S. Stephens, of Lincoln's Inn, Esquires, Barristers; at Law. 2 Vols. Royal 8vo. 3/. 10s. cloth. Jnst published, royal 8vo., Vol. L Part I., price 31«. 6d. ' In contihnation of the above. CASES DECIDED DURING THE SESSIONS 1873, 1874, and 1875 by the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT. By Frederick Clifford and A. Gr. RiCKARDS, Esqs., Barristers at Law. "As to the mode in which Heasrs. "This is avoluiae of Reports which CliSbrd and Rickards have executed we think will prove of very great :use to the work, it will be sufficient to say everyonepraclisingorinterestedincases that these JEleports area continuance hefore the Referees. The hook is really of the series of ' Cliiford and Stephens' a very useful one, and will doubtless Reports,' which began in 1867, and seem commend itself to Parliamentary prac- to be marked by the same care and titioners." — Law Times. accuracy which have made these Re- " The Reports themselves are very ports a standard for reference and well done. To parliamentary practi- quotation by practitioners and the Court tioners the work cannot fail to be of itself." — Times, very great value." — Solieittn^ii' 3lntmal. ORTOIiAN'S ROMAN LAW, Translated by PRI CHARD and NASMITH. The HISTORY of ROMAN LAW, from the Text of Ortolan's Histoire de la Legislation Romaine et Generalisation du Droit (edition of 1870). Translated, with the Author's permission, and Supplemented by a Chronometrical Chart of Roman History, By I. T. Prichard, Esq., F.S.S., and David Nasmith, Esq , LL.D., Banisters at Law. 8vo. 28s. cloth. " We know of no work, which; in our to that great work, it ig enough to say, opinion, exhibits so perfect a model of that English writers have been con- what a •ext-book ought to be. Of the tinually in the habit, of doing piecemeal translation before US; it is enough to say, what Messrs. Prichard and Nasmith that it is a faithful representation of have done wholesale. Hitherto we have the original." — Law Magazine. had but gold dust from the mine;- riow "Thistranslaiion,fromitsgreatmerit, we are fortunate in obtaining a large deserves a warm reception from all who nugget. Mr. Nasmith is already known desire to be acquainted with the history as the designer Of a chart of the history and elements of Roman law, or have its of England, which has been generaUy interests as a necessary part of a sound approved, and bids fairly for extensive legal education at heart. With regard adoption." — Law Joumai. << >.~'.;;7 «- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.C. 31 UNDERHIItli'S I«AW OF TORTS. A SUMMARY OF THE LAW OF TORTS, OR WRONGS INBEPENDENT OP CONTRACT. By Arthtjk Undeehill, B.A,, of Lincoln's Inn, Esq., Barrister at Law, Vq&t 8vo. 6s. cloth. ' He has set forth the elements of the lav with clearness and accuracy. 7 he little work of Mr. t 'nderhill le inexpensive and may be relied on."— ioM Times. ** The plan is a good one and has been honestly carried ont, and a good index facilitates reference to the contents of the hottk."— Justice ,0/ the Peace, ' **Mr. Underhill's ability in making a Gl'e&T digest of the subject treated of in this volume is conspicuous. Aiany works would have to be consulted for the infor- mation here concisely given, so that prac* titioners as well as students will find it useful."— A'tfa'* of the Worid. ** His book is so clearly written that it 18 easily comprehensible. To the law student, for whom it is more particularly written, it may be recommended hnth for iAWS. THE INCOME TAX LAWS at present in force in the United Kingdom,' -with Practical Notes, ApJ)endices and a copious^ Index. By Stephen Dowell, MA., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. 8vo, 12s. Qd, cloth. *' To commissioners and all concerned "We 'can honestly commend Mr. In the working of the Income Tax Mr. Dowell's work to our readers as being Doweirsbookw)ll be of great value." — well done in every respect." — Laa Law Journal. " * We cannot doubt that the work will **Mr. Dowell's official position emi- prove of much service to persons en- nently fits him for the work he haa gaged in the administration of the In- undertaken, and his h^tory of the come Tax laws." — Solicitor^ Joiimal. Stamp Laws shows how careftUly and " For practical purposes the compila- conscientiously he performs what he tion must prove very useful."— Zato undeita.^eB"—JtuticeqfthePeace» Times. VOVTELUIm'S IiAVT of inland CARRIERS.-Second EdLtton. THE LAW OF INLAND CARRIERS, especially as regulated by the Railway and Canal Traffic Act, 1854. By Edmund Powell, Esq., of Lincoln College, Oxon, M.A., and of the Western Circuit, Barrister at Law. Author of " Principles and Practice of the Law of Evidence.*' Second Edition, almost re-written, 8vo. 14«. cloth. "The treatise before ns states the law of riers."— Z«» Timet, ' , which it treats ably and clearlv, and coo- " The subject of this treatise isnotiudees taips a good ina^T>.J'— Solicitors^ Journal; a laree one. but it has been got ntt hYWrf. . * Mr. Powell's wriciag is siogularly pre- Powell with considerable care, BDdcoamm ciseaodcoiidensediwithoutbeingataUdry, ample notice of the most recent caslis^^ . asthose who have read his admirable Book auihorities.*'— JiiriV/. ^-^ of Kvidence will attest. It will be seeo, "The two chapters on the Hallway iand from pur outline of the contents, how ex- Canal Traffic Act, 185G.are quite neir;^and haustivelvthe subject has been treated, and the recent cases under the provisidos of that it is entitled to be that which it aspires that statute are analyzed t^ lucid laapr- to become, the text book on the law of Car- gnage."— Xau Magazine, TOMKINS AND JENCREN'S MODERN ROMAN LAW. COMPENDIUM of the MODERN ROMAN LAW. Founded upon the Treatises of Puchta, Von Vangerow, Arndts, Franz Mohjer, and the Corpus Juris Civilis. By Frederick J. ToMKiNs, Esq., M.A., D.C.L., Author of the " Institutes of Roman Law," Translator of " Gaius," &c., and Henry Dibdricr Jencken, Esq., Barristers at Law, of Lincoln's Inn. 8vo. 14s. cloth. MESSRS. BUTTERWORTH, 7 FLEET STREET, B.C. 35 JUDICATURE ACTS. By LOCOCK WEBB, Q.C. THE SUPREME COURT OF JUDICATURE ACTS, 1873 and 1875, with the Rules, Orders and Forms. Contents : — I. The Judicature Acts, 1873 and 1875, and Orders, &c.— II. Con- solidation of those Statutes and Rules and Practical Conimentaries on the Rules of Law— the Jurisprudence and Judicature of the Supreme Court — the Practice of Appeals to the Court and Appeals to the House of Lords. A most copious Index. By LococK Webb, Esq., one of her Majesty's Counsel. 8vo. 21s. qloth. , (In preparaUon.') BAXTER'S JUDICATURE ACTS AND RULES, 1B73-S. Second Edition. THE LAW AND PRACTICE of the SUPREME COURT of JUDICATURE, comprising the Supreme Court of Judicatm-e Acts, 1873 and 1875 ; Rules of Court, Forms, Notes arranged section by section. Statutes referred to, and a very copious Index. By Wynne E. Baxter, Solicitor of the Supreme Court. Second Edition. Rewritten and much Enlarged, and with a SUPPLEMENT containing the Table of Fees to be taken under the Act. Crown 8vo. 10s. cloth. "o" The SUPPLEMENT separately, 6c/. sewed. ROGERS'S JUDICATURE ACTS, 1873 and 1875. The LAW and PRACTICE of the SUPREME COURT of JUDICATURE. By Arundel Rogers, Esq., of the Inner Temple, Barrister at Law, Author of " The Law of Mines, Minerals and Quarries." 1 vol., demy 8vo. 21s. cloth. Just published, price 3s. sewed, Fommmg a SUPPLEMENT to the above, ROGERS'S DECISIONS UNDER THE JUDICATURE ACTS, 1873, 1875. DECISIONS under the JUDICATURE ACTS, 1873, 1875 ; together with Additional Orders and Rules : being a Supr , plement to the Law and Practice of the Supreme Court of Judica- ture. ^By Arundel Rogers, Esq., of the Inner Temple, Barrister at Law. ■ *i* The origmal Work, including the Supplement, may be had, price 21s. cloth., — • DAVIS'S L&W OF REGISTRATION AND EI.ECTIONS. A MAJSIUAL of the LAW of REGISTRATION and ELECTIONS : with a SUPPLEMENT comprising the Cases on Ap- peal, 1868-1869 ; the Rules and Cases relating to Election Petitions; the Poor Rate Assessment Act, 1869 ; and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister at Law. 12mo. 15s. cloth. •»• The SUPPLEMENT may be had separately, price Ss. sewed. -© 36 LAW WORKS PUBLISHED BY MOZLEY Ac WHITEIiBY'S CONCISE JmAW DICTIONARY. A CONCISE LAW DICTIONARY, containing short and simple definitions of the Terms used in the Law. By Herbert Newman Mozley, M.A., FelloTv of King's College, Cambridge, and of Lincoln's Inn, Esq., and G-eorge Crispe Whiteley, ma., Cantab, of the Middle Temple, Esq., BaiTisters- at-Law. In 1 vol. 8vo., 20«. cloth. *** This work, which has been far some time in pr^Mxration, gives short and simple epcpkmaiions of the technical terTrts and phrases used in the La^^ including both those found in the older legal worts and those of moi'e modern and every-dap ocemTence; the object being to produce a book which shall be useful not only to Law Students and to members of both branches of the Legal ProfessUmt but also to magistrates and the general public. "Though devoting lesa space to ex- "A most useful, concise and plainly positions of the law than Wharton and explanatory book, the object of which is his editors allow, will yet be found use- to give an exposition ot legal terms and ful for precise definitions of law terms. phrases of past and present use. The In many cases its greater brevity is an compilers being scholars and gentlemen, advantage, enabling the book to be have taken pains and made their book a consulted with more rapidity and valuable one, of which we can prophesy promptitude. The legal are better than new and even improved editions."— the philosophic definitions." — Daily Bookseller, yews. ' BARRY'S FRACTICB OF CONVEYANCING. A TREATISE op the PRACTICE of CONVEY- ANCING. By W. Whittaker Barrt, Esq., of Lincoln's Inn, Bar- rister-at-Law, late holder of the Studentship of the Inns of Court, and Author of " The Statutory J urisdiction of the Court of Chancery." 8vo. 18s. cloth. "This treatise supplies a want which his criticism will meet with general a{^ has long been felt. Mr. Barry's work is proval.*'— Xaw Magazine, essentially what it professes to be, a '* Readers who recal the instruction treatise on the practice of conveyancing, they gathered from this trratise when iu which the theoretical rules of real published week by week in the pagcsof property law are rererred tn only for the the ' Law Times* will be pleased to learn puipose of elucidating the practice.. Tlie that it has been re-produced in a hand- treatise is tiie production of a person of some volume, which will be a welcome great merit and still greater promise." addition to the law library. Theinfonna* — Solicitors' Journal, tion that the treatise so much admirec) We feel bound to strongly recom- may now be had in the more convenient mend It to the practitioner as well as the form of a book will suffice of itself to student. The author has proved himself secure a large and eager demand for it." to be a master of the subject, for he not — Law Timet, onlygivesamostvaluablesupply of prac- "The work is clearly and agreeably tical suggestions, but criticises them with* written, and ably elucidates the subject much ability, and we have no doubt that in hand.*'~Jf(f(ic« of the Peace, BARRY'S FORMS IN CONVEYANCING. FORMS and PRECEDENTS in CONVEYANCING,' with Introduction and Practical Notes. By W. Whittaker Barry, of Lincoln*s Inn, Barrister-at-Law, Author of a " Treatise on the Practice of Convejancing,"' 8vo. 21*. cloth. ©- MESSRS. BUTTER WORTH, 7 FLEET STREET, ^.C. 37 HERTSLET'S TREATIES. » HERTSLE'fS TREATIES of Coniraerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c , at present subsisting between Great Britain and Foreign Powers Compiled from Authentic Documents by Edwabd Hertslet, Esq., C.B.,-.Librarian and Keeper of the Papers of the Foreign Office. 12 vols. 8vo. HI. 5s. boards. •«• yol. 1, price 12*.; Vol. 2, price, 12*.; Vol. 3, price 18s.; Fol. 4, price \8s.; Fol. 5, price 20s.; Vol. 6, price Us.; Vol.7, price 30s.; Vol. 8, price SQs. ; Vol.9, f rice 30s.; Vol. 10, price 3Qs.; Vol. U, price 30s.; Vol. 12, price 40«., may be had separately to complete sets. Vol. 12 includes an Index of Subjects to the Twelve published Volumes, which Index is also sold separately, price 10s. cloth. HERTSIiET'S TREATIES ON TRADE AND TARIFFS. TREATIES AND TARIFFS regulating the Trade between Great Britain and Foreign Nations, and extracts of the Treaties between Foreign Powers, containing "Most Favoured Nation" Clauses applicable to Great Britain in force on the 1st January, 1875, By Edwabd Hektslet, Esq., C.B., Librarian and Keeper of the Papers, Foreign Office. Part I. (Austria). Eoyal 8vo. 7s. M. cloth. Part II. (Turkey). 15«. cloth, SMITH'S PRACTICE OF CONVEVANCIN6. An ELEMENTARY VI EW of the PRACTICE of CON- VEYANCING in SOLICITORS' OFFICES, with an Outline of the Proceedings tinder the Transfer of Land and Declaration of Title Acts, i862,forthe use of Articled Clerks. By Edmund Smith, B.A.,lateof Pembroke Coll. Cambridge, Attorney and Solicitor. Post 8vo. 6j. cloth. HEAIiES'S HISTORY AND LAW OP PEWS. THE HISTORY and the LAW of CHURCH SEATS or PEWS. ■ By Alfred Heales, F.S.A., Prrctor in Doctors' Commons. 2 vols. 8vo. 16s. cloth. " Altogether we can commend Mr. dence of the author's industry, talent Heales's hook as a well conceived and learning."— £ow Journal. and well executed work, which is evi- 38 LAW WORKS PUBLISHED BY INGRAM'S LAW OF COMPENSATION.— Second Edition. COMPENSATION TO LAND AND HOUSE OWNERS : being. a Treatise on the Law of the Compensation for In- terests in Lands, &c. payable by Railway and other Public Companies; with an Appendix of Forms and Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law, now Professor of Jurisprudence and Indian Law in the Presidency College, Calcutta. Second Edition. By J . J. Elmes, of the Inner Temple, Esq., Ba^rister- at-Law. Post 8 vo. 1 2s. cloth. «* " Whether for companies taking land or conclusive manner that Mr. Ingram has holding it, Mr. Ingram's volume wil] be a rightly measured the requirements of the . welcome ^nide. With this in his hand the profession when Be desigtied the monognph ~ legal adviser of a company, or of an owner before us. The appendix contains no less and occupier whose property is taken, and than sixty forms required in the practice of who demands compensation for it. cannot this branch of the law and the statutes and fail to perform his duty rightly." — Laa partsofstatntesinwhichiti^embodied. The Timea. index is very ample. Thus it will be seen ; " This work appears to be carefully pre- to be a book very valuable to all solicitors pared as regards its mntter. This edition who may be concerned for railways or for ^ IS a third larger than the first ; it contains the iiersons whose properties are affected twice as many cases, and an enlarged by them." — Laa Timei,tecimdnoliee. index. It was much called for and doubt- " His explanations are clearand accurate, less will be fotittd very Ubeful by the prac- and he constantly endeavoitcs not only tn titioner." — Lavi Magazine^ state the effect of the law which he is " The appearance upon the title page of enunciating, but also to show the principle thewordsSecondE^itionattests inthemost upon which it rests." — Athenaum, SCRIVEN ON COFYHOIiDS.— Fifth Edition by Stalman. A TREATISE ON COPYHOLD, CUSTOMARY FREEHOLD, and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet. By John Scriven, Serjeant at Law. The Fifth Edition, containing references to Cases and Acts of Parliament to the present time. By Henry Stalhan, Esq., of the Inner Temple, Barrister-at-Law. Abridged in 1 vol. roval 8vo. 30s. cloth. ' ' ' TUDOR'S CHARITABLE TRUSTS.— Second Edition. THE LAW of CHARITABLE TRUSTS; with the Statutes, including those to 1869, the Orders, Regulations and Instruc- tions issued pursuant thereto, and, a Selection of Schemes, with Notes. By Owen Daties Tudor, Esq., of the Middle Temple, Barrister-at- Law, Author of ' Leading Cases in Equity.' Second Edition, contain- ing all the recent Statutes and Decisions. Post 8vo. 18s. cloth. " No living writer is more capable than Themain featureof thework Isthemanner Mr. Tudor of producing such a work : his in which Mr. Tudor has dealt with all the Leading Cases in Equity, and also on the recent statuus relating to this subject."— Law of Heal Property, have deservedly Solicitors* Journal. earned for him the highe:it reputation as a " Mr. Tudor's excellent little book on learned, careful and judicioos text-writer. Charitable Trusts "—Laa Tinw. 6- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 39 GIiEN'S FUBI.IC HEAIiTH AND I.OCAI. GOVERNMENT Eighth EdiUon. The LAW relating to PUBLIC HEALTH and LOCAL GOVERNMENT: including the Law relating to the Removal of Nuisances injurious to Health, the Prevention of Diseases, and Sewer Authorities^ With Statutes and Cases. By "W. Cunning- ham Glen and Alexandbb Glen, B.A., LL.B., Barristers at Law. Eighth Edition. Post 8vo. 30s. cloth. "The Public Health Act, 1875, ren- authorities, and other acts of analogous oered the production of a new edition of character, including the recent Act for this standard work imperative, and it the Improvement of Artisans and rorms an important feature, it being Labourers' Dwellings. The notes to the given in extenm with appropriate notes sections show that great csre and in- and decisions of the courts upon the re» dustry have been bestowed upon them, lative sections of the repealed acts in- all the recent cases being annotated. ■J^ ™*' "^ ""* '"=f"<"i8 The Messrs. Glen have made this edition remainder of the work comprises acts thoroughly worthy of the reputation expressly referred to by the Public longsinceacquiredbythesenioreditor." Health Act as giving powers to local From the" Law Times" March 18, 1876. GLEN'S IiOCAI. BOARD EIiECTION MANUAIi. The CONSTITUTION of LOCAL GOVERNMENT DISTRICTS and ELECTION of LOCAL BOARDS under the Public Health Act,.187o (38 & 39 Vict. c. 55).^ By Alexander Glen, M.A., LL.B., Cantab, of the Middle Temple, Barrister at Law. PostSvo. 3«.6d. cloth. SHELFORD'S SUCCESSION, PROBATE aad LEGACY DUTIES.— Second Edition. THE LAW relating to the PROBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOT- LAND, including all the Statutes and the Decisions on those Sub- jects: with Forms and Official Regulations. By Leonard Shelford, Esq., of the Middle Temple, Barrister atLaw. The Second Edition, with many Alterations and Additions. 12mo. 16s. cloth. "The treatise before ns. one of the most been arready tested by most of thenii"' usefu] and uopmar of his productious, Law Timet. being now the text book on the anbject, " Mr. bhelford's book appears to ns to nothing remains but to make known its ap. be the best^and most complete work on this pearance to our readers, its merits have extremely intricate subject."— Xniv Maga- ttne. DAVIS'S CRIMINAI. I.AW CONSOLIDATION ACTS. THE CRIMINAL LAW CONSOLIDATION ACTS, 1861 ; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appeal. Together .with alphabetical Tables of Offences, as well those punish- able upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punishment; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. 12mo. 10«. cloth. C2 ©_ 40 LAW WORKS PUBLISHED BY SEABORNE'S IiAVT OF VENDORS & PURCHASERS. A CONCISE MANUAL of rhe LAW of VENDORS AND PURCHASERS OF REAL PROPERTY j with a Sup- plement, including the Vendor and Purchaser Act, 1874, with Notes. By Heney Seaborne. Post 8vo. 9s. cloth. *«* This loorA u designed to/umUh Practitioners with an easy means of reference to the Statutory Enactments and Judicial Decisions regulating the Transfer of BeaH Property, and also to brmg these aiuthoriiies in a compendious shape wider the attention of students. *' The book before us contains a good the most important branches of the deal, especially of practical information law. The student will find this book -a as to the course of conveyancing matters useful introduction to a dry and difficult '. in solicitors' offices, whigh may be use- subject," — Law Examination JoumaL ^ ful to students." — Solicitor^ Journal. *' Intended to furnish a ready means " We will do Mr. Seaborne the justice of access to the enactments and deci- to say that we believe his work will be sions governing that branch of the law." of some use to articled and other clerks — 77te Times. in solicitors' offices, who have not the *' The book will be found of use to the opportunity or inclination to refer to;the legal practitioner, inasmuch as it will, standard works from which his is com- so far as regards established points of piled." — Law Journal. law, be a handier work of reference than " The value of Mr. Seaborne's book the longer treatises we have named."— consists in its being the most concise Athenceum, Summary ever yet published of one of TOMKINS' INSTITUTES OF ROMAN IiAW^. THE INSTITUTES pf ROMAN LAW. Part L, con- taining the Sources of the Roman Law and its External History till the Decline of the Eastern and Western Empires. By Frederick ToMKiNS, M.A., D.C.L., Barrister at Law, of Lincoln's Inn. Royal 8vo. 12s. cloth. (To be completed in Three Parts.) DREWRV'S EQUITV PLEADER. A CONCISE TREATISE on the Principles of EQUITY PLEADING, with Precedents. By C. Stewart .Drewry, Esq., of the Inner Temple, Barrister at Law. 12mo., 6i. boards. BAYIiIS'S I.AW OP DOMESTIC SERVANTS, l»y Monckton. Fourtb Edition. THE RIGHTS, DUTIES AND RELATIONS OF DOMESTIC SERVANTS AND THEIR MASTERS AND MISTRESSES. With a short Account of Servants' Institutions, &c , abd their Advantages. By T. Henry Bavlis, M.A., Barrister at Law of the Timer Temple. Fourth Edition, with Considerable Addi- tions, by Edward P. Mokckton, Esq., B.A., Barrister at Law of the Inner Temple. . Foolscap. Svo., 2t. cloth, ©- MESSRS. BUTTERWORTH, 7 FLEET STREET, E.G. 41 WOOLRYCH ON SERVERS. -Third Edition. A TREATISE on the LAW OF SEWERS, including the Drainage Acts. By Humphry W. Woolrych, Serjeant at Law. Third Edition, with considerable Additions and Alterations. 8vo. 12s. cloth. " Two editions of it have been speedily been added to the literature of the profes- exhausted, and a third called for. The siou. It is a work of no slight labour to author is an accepted authority on all sub- digest and arrange this mass of legislation jects of this clasa."— Xav 'limes. —this task, however. Mr, Serjeant Woo\- ** This is a third and greatly enlarged rych has undertaken, and an examination feditioD of a book which has already ob- of his book will, we think* convince the tamed an established reputation as the most most exacting that he has tully succeeded, complete discussion of the subject adapted ,l4o one should attempt to medd, cloth. SMITH'S BAR EDUCATION. A HISTORY of EDUCATION for the ENGLISH BAR, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Bar- 'risteratLaw. 8vo. 9s. cloth. MESSRS. BUTTER WORTH, 7 FLEET STREET, B.C. 43 BKABROOK'S NE\7 ^K^ORK ON CO-OPERATION. - THE LAW and PRACTICE of CO-OPERATIVE or INDUSTRIAL and PROVIDENT SOCIETIES ; including the Winding-up Clauses, to which are added the Law of France on the same subject, and remarks on Trades Unions. By Edward W. Brabrook, F.S.A., of Lincoln's Inn, Esq.j Barrister at Law, As sistant-Registrar of Friendly Societies in England. 6s. cloth. " A volume ■which will he very cor- tained in it are valuahle and intere^t- dially welcomed by the associations of ing." — -Zow Magazine. which it treats and hy their legal advi- " The fullness of knowledge is exhi- sers." — Law Tima. bited throughout this practical unpre- " At the present time when so much tending and handy little book of infor- attention is directed towards the working mation for all whom it ponceius." — of Industrial and Provident Societies MortwiffPost. and Trades Unions, with all their unen- " The author spea^ .with practical viable notoriety, Mr. Brabrook*s little experience and authority." — Observer, work on these societies is opportune, ** The little volume is comprehensive and the statistics and Infbrmation con- and valuable." — Hews of the World, IiUSHINGTON'S NAVAIi PRIZE IiAVT. A MANUAL of NAVAL PRIZE LAW. By Godfrey LusHiNGTON, of the Inner Temple, Esq., Barrister at Law. Royal 8vo. 10s. 6d. cloth. TROVnSR'S CHURCH BUILDING IiAVTS, Continned to 1874. THE LAW of the BUILDING of CHURCHES, PARSONAGES, and SCHOOLS, and of the Division of Parishes aiiid Places. By Charles Francis Trower, M.A., of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late Secretary of Presentations to Lord Chancellor Westhury. Post 8vo. 9s. cloth. The Supplement may be had separately, priee Is., sened. " A good book on this subject is calcn- mea are concerned with glebes, eodoW- laud to be of considerable service both to meets, district chapelries, parishes, eccle- lawyers, clerics and laymen; and on the siastical commissions and such like matters, whole, after taking a survey of tfad work aboat which the public and notably the before as, we may pronounce it a nsefal clerical public seem to know bat littler but work. It contains a great mass of iofor- which it is needless to say are matters of mation of essential import to those who much importance."— ito/iciVor*' Jourjutl, as parishioners, legal advisers or clergy- WIIiIiS ON EVIDENCE.— Fourth Edition. AN ESSAY on the PRINCIPLES of CIRCUMSTAN- TIAL EVIDENCE. Illustrated by numerous Cases. By the late William Wills, Esq. Fourth Edition. Edited by his Son, Alfred Wills, Esq., Barrister at Law, 8vo. 10s. cloth. 44 LAW -WORKS PUBLISHED BY WIGRAM ON VriliZiS.— Fourth Edition. An EXAMINATION of tlie RULES of LAW respecting the Admission of EXTRINSIC EVIDENCE in Aid of the INTER- PRETATION of WILLS. By the Right Hon. Sir James Wigram, Knt, Tlie Fourth Edition prepared for the press, with the sanction of the learned Author, by W. Knox Wigram, M.A., of Lincoln's Inn, Esq , Barrister at Law. 8vo. lis. cloth. " In the celebrated treatise of Sir James Wigram, the rules of law are stated, dis- cussed and explained iu a manner which has excited the admiration of every iud(;e who has had to consult it."— Zorif kinjes- doiBn, in a Privy Council Judgment, Jwjf Sth, 1858. " There can be do doubt that tbe notes of Mr. Knox Wieram have enhanced the valne of the work, as affording a ready reference to recent cases on the subiects embraced oi arisiofir out of Sir James \Vigram's propositions, and which fre- quently give additional sanport, and in some instances an extension to the original text." — Law Chronicle. " Understood as general guides, the propositions established by Sir Jatnes Wigram's book are of the highest value. But whatever view may be entertained., the book is one which will always j^g highly prized, and is now presented lil a very satisfactoi? shape, thanks to thit industry and intelligence displayed in thi^ notes by the present editor "—Solicitarjfi Journal and Reporter, . COOMBS' SOIiIGITORS' BOOKKEEPING. A MANUAL of SOLICITORS' BOOKKEEPING: comprising practical exemplifications of a concise and simple plan of Double Entry, with Forms of Account and other books relating to Bills of Costs, Cash, &c., showing their operation, giving directions for keeping, posting and balancing them, and instructions for drawing costs. Adapted for a large or small, sole or partnership business. By W. B. Coombs, Law Accountant and Costs Draftsman. 1 vol, 8vo. 10s. 6rf. cloth. *#• The various Account Books described in the above work, fke Forms of which are Copyright^ may he had from, the Publisfters, at the prices stated in the work at page 274. " The author of the above, relying on the well-known fact that solicitors do not .like intricate bookkeeping, has pre- sented to that branch of the profesBion a work in which the really superfluous has been omitted, and that only which is necessary and useful in the ordinary routine, in an attorney's oflace has been retained. He has performed hia task in a masterly manner, and in doing so has given the why and the wherefore of the whole system of Solicitors' Bookkeeping. The volume is the most comprehensive we remember to have seen on the sub- ject, and f^om the clear and intelligible manner in which the whole has been worked out it will render it unexcep- tionable in the liands of the student and the practitioner." — Law Magazine. " Throughout the j^ formd account books most of the different matters of business which usually arise in a solici- tor's office have been passed from their commencement to their ultimate con- clusion. The bill book contains. pref- cedents of bills of costs illustrating the correspondence between that and the disbursement book, and so with the, cash book, ledger, and other books ; every item has its reference and any intricatepoints have been explained, which are merits which no other work on the subject possesses; indeed so clear do the in- structions appear that a tyro of average skill and abilities with application could under ordinary circumstances open and keep the accounts of a business; aud so far as we can judge the author has suc- ceeded in his endeavour to divest solici- tors' bookkeeping of complexity, and to be concise and simple without being inefficient. We cannot dismiss this volume without briefly commenting upon the excellent style in which it is submitted to the profession."— Xaw JoumcA, MESSRS. BUTTERWORTH, 7 FLEET STREET^ E.G. 45 DR. TRISTRAM'S PROBATE CONTENTIOUS PRACTICE. Seventh Edition. . The CONTENTIOUS PRACTICE of the PROBATE . DIVISION of the HIGH COURT of JUSTICE. By T. H. Tristram, D.C.L., Advocate and Barrister-at-Law (and one of the compilers of the Rules and Orders under the Supreme Court of Judicature Acts). Seventh Edition, 1 vol. 8vo. cloth. {Very nearly ready.) HUNT'S BOUNDARIES, FENCES AND FORESHORES. Second Edition. A TREATISE on the LAW relating to BOUN- DARIES and FENCES, and to the Rights of Property on the Sea Shore and in the Bed of Public Rivers and other Waters. Second Edition. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law. Second Edition. 12mo. 12s. cloth. "There are few more fertile Bources of litigation than those dealt with in Mr. Hunt's valuable book. It is suffi- cient here to say that the volume ought to have a larger circulation than ordi- narily belongs to law books* that it ought to be found in ev.ry country gentleman's library, that the cases are brought down to the latest date, and that it is care- fully prepared, clearly written, and well edited.'" — Law Magazine. ** It speaks well for this book, that it has so soon passed intoasecondedition. That its utility has been appreciated Is shown by its success. Mr, Hunt has availed himself of the opportunity of a second edition to note up all the cases to this time, and to extend considerably some of the chp-pters, especially that which treats of rights of propcrtyon the seashore and the subjects of sea walls and commissions of sewers."— Law Times. '* Mr. Hunt chose a good subject for a separate treatise on Boundaries and Fences and Rights to the Seashore, and we are not surprised to find that a second edition of his book has been called for. The present edition contains much new matter. The chapter espe- cially which treats on rights of property on the -seashore, which has been greatly extended. Additions h£tve been also made to the chapters relating to the fencing of the property of mine owners and railway companies. All the cases which have been decided since the work first appeared have been introduced in their proper places. Thus it will be seen this new edition has acdnsiderably enhanced value." — Solicitors* Journal., GRANT'S XmAVT OF CORPORATIONS IN GENERAIi. A PRACTICAL TREATISE on the LAW of COR- PORATIONS in GENERAL, as welJ Aggregate as Sole; including Municipal Corporations, Railway, Banking, Canal and other Joint- Stock and Trading Bodies, Dean and Chapters, Universities, Colleges, Schools, Hospitals, with quasi Corporations aggregate, as Guardians of the Poor, Churchwardens, Churchwardens and Overseers, &c., and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, &c. By James Grant, Esq., of the Middle Temple, Bar- rister at Law. Royal 8vo, 26s. boards. c 5 ©- 46 LAW WORKS PUBLISHED BY BUND'S ImA^V of SALMON FISHERIES. THE LAW relating to the SALMON FISHERIES of ENG-LAND and WALES, as amended by " The Salmon Fishery Act, 1873 ;" with the Statutes and Cases, By J. W. Willis Bund, MA., LL.B., of Lincoln's Inn, Barrister at Law, Vice-Chairman Severn Fishery Board. Post 8vo. 15a. cloth. From the Thirteenth Annual Report of Inspector Buctiand on Salmon Fisheries, 1874., ' I would wish in this place to express my approval of ' Bnnd^s Law of Salmon Fisheries in England and Wales, with Statutesand Cases.' This work will afford great assistaace to those engaged in administering the law, while it affords valuable iDformatiun on the theory and practice of Ssilmon legislation in general." JF>«» the Thirteenth Annual Report of Inspector Walpole on Salmon Fisheriet, 1874. * Mr. Willis Bund, the Draftsman of the new Act, has published an important treatise on the whole of the Salmon Fishery Acts, which has already been accepted as a com- plete exposition of those Statutes.*' Doubtless all the law will be found between his covers, and we have not been able to detect any erroneous statements. We can recommend the book as a disqai- sition,— it is conscientiously executed, '— Xaar Timet, ** With Mr. Bund*s work at his elbow, the inquirer will find it tolerablv easy work, for Mr. Bnnd has with greiitskiUanalabour done all the most troublesome work for him. and each point of law is markied out so that there can be no difficulty in under- standing it, for not only are the points nn- ravelled and discussed, bnt the cases which have come before thesuperiorcourts npon the various points are distinctly set forth. end the decision upon each made plain. Mr. Bund has done the work excellently well, and nothing fnnher in ihis way can be desired."— TAtf Field, . ** We have always fonod his opinion sound, and his explanations clear and lucid, lliis volume must of deoessity be- come a handbook to salmon fishers m gene- ral, and especially to boar^s^of cooserva- , tors, who will thereby be much assisted in the formation of the new boards of comet* vators, under the Act of -1873; also the operation of the Act's of 1861 and 1665, as amended by the Act otlti7^"—I^nd and Water, ROUSE'S COPVHOIiD ENFRANCHISEMENT MANUAIi.— Third Edition. The COPYHOLD ENFRANCHISEMENT MANUAL; enlarged, and treating the subject in the Legal, Practical and Mathe- matical Points of View; giving numerous Forms, Rules, Tables and Instructions for Calculating the Values of the Lord's Rights; Sugges- tions to Lords* Stewards, and Copyholders, protective of their several Interests, and to Valuers in performance of their Duties; and inclu- ding the Act of 1858, and Proceedings in Enfranchisement under it. By RoLLA Rouse, Esq., of the Middle Temple, Barrister at Law. Third Edition, much enlarged. 12mo. 10s. 6d. cloth. fesBlon, we feel sure the legal world will greet with pleasure a new and improved edition of his copyhold manual. The third edition of that work is before uS. It is a work of great practical value, suitable to lawyers and laymen. We can fteelyand heartily recommend this volume to the practitioner, the steward and the copyholder." — Law Magazine. . " NoWf however, that copyhold tenures are being frequently converted into free- holds, Mr. Rouae's treatise will doubtlesif be productive of very extensive benefit ;. for it seems to us to have been veiy care- fully prepared, exceedingly well com- posed and written, and to indicate much, experience in copyhold law on the part of |he author." — SoUcitors' Journal, *' This new edition follows the plan of its predecessor, adopting a fivefold divi- sion:—!. The Law. 2. The Practice, with Practical Suggestions to Lords, StevrardB and Copyholders. 3. The Ma- thematical consideration of the Subject in all its Details, with Rules, Tables and Examples. 4, Forms. 5. The Statutes, with Notes. Of these, we can only re- peat what we have said before, tiiat they -exhaust the subject ; they give to the practitioner all the materials required by him to conduct the enfranchisement of ■a copyhold, whether voluntary or com- {tulsory," — Law Times. " When: we consider what favor Mr. House's Practical Man and Practical O0nveyw)icei have found with the pro- COIiIiIER'S IiAVr OF CONTRIBUTORIES. A TREATISE ON THE LAW OF CONTRIBU- TORIES in the Winding-up of Joint Stock Companies. By Robert Collier, of the Inner Temple, Esq., Barrister at Law, PostSvo. 9s. cloth. "Mr, Collier's general arrangement appears to have been carefully devised, and is probably as neat as the nature of the subject admits of. It is impos- sible alter a perusal of the book to doubt that the authot has honestly studied the Object, and has not contented himself with, the practice of piecing together head notes from reports."— iSo^tcttorf' JowwA. ^ " lU^.Camer has not shrunk from point- ing out his views as to the reconcilability of apparently conflicting decisions or as to many points on which the law is still unsettled; without making any quota- tions for the purpose of illustrating the above remarks, we think we are Justi- fied in commending this treatise to, the favourable consideration of l^e profes- sion." — LaaB Joia-md. ** Mr. 'Robert Collier's treatise on the subject deserves attention beyond the limits of his profession. The chapter showing the modes in which liability may be incurred is full of instructive warning."— jSiatfwnfc^ Reoieuf^ " The perplexity of the laws relating to personal liability, naturally suggests a cpllection of precedents and cases which may b&considered settled, and of direct application to the generality of cases; and this the author 'appears to have done with success, as far as we can judge of the merit of the work." — ^andard. " This is a valuable legal work, which should be in the hands of all speculatoi^ in the formation of new ventures in the shape of joint stock companies and associations. It is important that such persons should know the exact position they assume, in a legal point of view, and this they will be enabled to do by a perusal of this work, written by a bar- rister of some repute."— £u22»onwt. "This worfc he has done very tho- roughly, and the scope of the treatise is far wider than the author has laid down in his preface. . There is probably' no; branch of the law of contracts more difficult and intricate than this of con- tribution, and the cases quoted by Mr. Collier are treated with great discrimi- nation, BO that the book enables a man who has not made the subject a matter of special study to advise with compara- tively small trouble to himseir. This is the advantage of writers devoting thein- selves to what we may call the byeway? of the law— a dangerous track for the weakly, the infirm, or the unaccustoiped, but light and easy enough with sucl;i a. guide as Mr. Collier. Laymen may also learn from the work the exact liability which they Incur before entering into contracts, and thus avoid the cl^ance of ruin." — Irish lAxm Times. " The work is clearly and vigorously written, and Mr. Collier has managed to put a great deal of Information into a small space. The book will be found to be a usef^ addition to the list of treatises on a branch of the law which has grown immensely since 1862." — Athenaeiim. "Mr. Collier has carried out bis In- tention, and has produced a work of great utility." — The Law, BUIiX-EV AND BUND'S N£W BANKRUPTCY MANUAZi. A MANUAL of the LAW and PRACTICE of BANK- RUPTCY as Amended and Consolidated by the Statutes of 186&: with an APPENDIX contamiug the Statutes, Orders and Forms^ By John F. Bulley, B.A.,and J. W. Willis-Bund, M.A., LL.B., Barristers- at-Law, ]2mo, 16if. cloth. With a Supplement including the Orders to April, 1870. •j^* Ths Swp'plement may "be had separately , Is. sewed. '**Thi8 is a treatise, not an edition of the acts, and where the law is to a-l^rge extent new, this is the best, though the most troublesome, mode of dealing with it. A very complete index makes, the work all that the practitioner, be he bar- rister or solicitor, can require."— iaw Times. 48 LAW WORKS PUBLISHED BY Oke's Laws as to Licensing Inns, &c. Second Edit. 1874 ; containing the Licensing Acts, 1872 and 1874, and the other Acts in force as to Ale-houses, Beer-houses, Wine and Refreshments houses, Shops, &c., where Intoxicating Liquqrs are sold, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke, late Chief Clerk to the Lord Mayor of London. Second Edition, by W. C. GliEtr, Esq., Barrister at Law. Post 8vo. 10s. cloth. "It is superfluous to recommend any we should say a treatise on it. Every- work on magisterla'Uaw which bears the thing appears to be given whicli can name of Mr. George C. OXe on the title by possibility be required, and the forms page. This treatise, which Mr. Oke are abundant" — Law Times, modestly describes as little, is a com- " The arrangement in chapters by prehenaive manual. The law is cited in Mr. Oke seems to us better than the a manner easy of rererence. There are plan pursued by the authors of the rival explanator_ynotes,atableof forms, some work; and we think that Mr. Glen has of them original, a table of offences, and t donewelltoleaveinmanycasesa con- a copious index. Mr, Oke also gives a cisestatementof the effect of the legisla- very clear exposition of the much dis- tion repealed by the late act. He also puted sections 45 and 46 of the new gives a useful list of places beyond the Licensing Act." — Law Journal. metropolitan district and in the policy " Mr. Oke has lately brought out by district." — iSolicitor^ Journal, far the best edition of the act, or perhaps Oke's Magisterial Synopsis; a Practical Onide for Magistrates, their Clerks, Attornies, and Constables ; Summary Convictions and Indictable Oflfences, with their Penalties, Punish- ments, Procedure, &c.; being alphabetically and tabularly arranged: with a Copious Index. Eleventh Edition, much enlarged. By George C. Oke, late Chief Clerk to the Lord Mayor of London. In 2 vols. 8vo. cloth. . "We earnestly recommend to the by him on the legal profession, the higher classes of this country Mr. Oke's magistracy, and the whole community Synopsis, not as a mere reference index by his Synopsis, which now, as on a for- ot dictionary to be snatched up at a mer occasion, we venture to designate as moment of pressing need, but as a sub- the standard guide of the magisterial ject of quiet study. In conclusion, we bench, and the indispensable companion beg to tender ou^ warmest thanks to of every justice of the peace," — Law Mr, Oke for the immense boon conferred Journal, Oke's Handy Sook of the Game Laws ; containing the whole Law as to Game, Licences and Certificates, Poaching Preven- tion, Trespass, Rabbits, Deer, Oogs, Birds and Poisoned Grain throughout the United Kingdom. Systematically arranged, with the Acts, Decisions, Notes, Forms, Suggestions, &c. By Geob&e C. Oke, Author of "The Magisterial Synopsis," &.c. Tliird Edition. By J.W.Willis Bund, Esq., BarristeratLaw. 12mo. {In the Preis.) Oke's Fishery Laws; comprising Private and Salmon Fisheries in England. Second Edition, By J. "W. Willis Bund, Esq., Barrister at Law. 1 vol. 12mo. (In the Press,) -^ MESSRS. BUTTERWORTH, 7 FLEET STREET, B.C. 49 Mx. ®fee*0 jfttagigtcrial WSSit^tk^— continued, Oke*s DIagisterial Formulist; being a Goinplete Collec- tion of Forms and Precedents for practical use in all Case^ out of Quarter Sessions, and in ^Parochial Matters, by Magistrates, their Clerks, Attornies and Constables. By George C. Oke, Author of "The Magisterial Synopsis," &c, JFiftk Edition^ enlarged and improved. By Thomas W. Saumdebs, Esq., Barrister at Law, Recorder of Bath. In 1 vol. 8vo. 385. cloth. "The progress of the legislature with reference to subjects within the jurisdic- tion of magistrates has been rapid dur- ing recent years, and consequently the labours imposed upon authors and edf^ tors of works dealing with such subjects have been proportionately increased. In Mr. Saunders' preface will be found an enumeration of statutes which were not even in embryo at the time when M-. Oke brought out the last edition of his valuable Formulist. Therefore Mr. Saunders has not been called upon to perform the functions of an annotator merely, he has had to create, just as Mr. Oke created when be wrote his hook. This, of course, has necessitated the enlargement and remodelling of the index. No work probably is in more use in the offices of magistrates than '^Oke's Formuli&t.' That it should be reliable and comprehend recent enact- ments is of the very first importance. In selecting Mr. Saunders to follow in the steps of Mr. Oke the publishers exercised wise discretion, and we con- gratulate both author and publishers upon the complete and very excellent manner in which this edition has been prepared and is now presented to the profession." — Law Times, " In noticing the fifth edition of the companion work to the ' Synopsis,' we cannot forbear to express again our regret that the original author of these two famous books is no longer among us, able and witling to give to the legal world new editions of those treatises which are likely to preserve their reputa- tion as long as the law which they teach ' lasts. . The duty of editing anew the 'Magisterial Formulist' has fallen upon Oke^s Law of Turnpike Eoads ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acta as to Union of Trusts, for facilitating Arrangements with their Creditors: as to the interference by Railways with Roads, their Non- repair and enforcing Contributions from Parishes, &c., practically arranged With Cases, copious Notes, all the necessary Jorms, and an elaborate Index, &c. By George C. Oke. Second Edition^ 12mo. 1 S». cloth. the Recorder of Bath, whoBe experience and industry ought to furnish a guar- ant^q that in his hands a work of so much value and celebrity will not lose any of its former attributes. Everyone acquaipted with the subject is well aware that in practice a multiplicity of forms is required in the enforcement of the provisions of statutes appertaining to magisterial matters. Modem statutes usually supply some of the more im- portant forms, but these are not readily available unless grouped under the pro- per heads in some handy treatise. Apart firomthe statutory forms, there is a daily and hourly need of forms pressing upon clerks to justices, and their time is too valuable to admit of the labour of draw- ing' what is wanted on an emergency. There is not a member of this most im- portant and intelligent class of men who has not learned to look upon Oke's * Formulist' as a trusty friend and safe guide in the moment of need, and who will not welcome an edition which em- braces the novel matter required byfiesh legislation. When we find that 900 pages are occupied with these forms, and that the index alone consists of 1 00 pages, we can form some idea of the task which Mr. Saunders has undertaken, the per- formance of which ought to add to his repute. Mr. Saunders has compiled a new table of statutes connected with the forms, an addition which will certainly be' found useful. The edition is with much propriety dedicated to the Secre- tary qf State for the Home Department* whose ability and impartiality in mat- ters magisterial is ^universally acknow- ledged." — Law Journal. 50 LAW WORKS PUBLISHED BY THE UW EXAMINATION JOURNAL. Edited by HERBERT NEWMAN MOZLEY, M.A., F£LLOW OF king's COLLEGE, CAMBRmOE ; ANI> OF LINCOLN'S INN, ESQ., BABBISIER-AT-LAW. Pi^lU?ied on the morning of the second da/y afUr ecuh rapective Final Examination ui EUa/ry, Easter, lenity and Mtckaelmaa Terms, in each year. Each Number price !«., by post 1«. Id. ; or annual st^cript%on, payable in advance, 4s., by post 4$. 4d. All back numbers may be had. No. XXVII.— Easter, 1876, I. NoticH for the June and Novembe'- Examlnatloni), 1876. II. Further Extracts from the Rules nf November 2, 1875. III. Statutes of 1875 (Third Notice). IV- Digest nf i ases. V. Intprnied>ate Exinifnation, January, lH7f!: Q estions and Answers. VI. Fiual Exammatlon, April, 1876: auestiotitt and Answera, VII. Tlie New Law OlctiDnary. VIH. Aerlevts of Buoka. IX. Corre- spondeDce and Notices. No, XXVI.— Hilary, 1876, ' I. The New Rules relatinir to ExaminationB. II. The Statutes of 1B75 (Second Notice). III. Di»«t of Cafes, IV. Iniermedlate Examination, Michaelmas SitUne*. IB75: auesUons and Anxueri. V, Final Examination, Hilary tUttings, 1876: aueations and Answers. VI. Reviews. VII. Corr«- jipondence and Notices. Ko. XXV,— Michaelmas, 1875. I. Statute of Fraudulent Conveyances, 13 Bllz. c 5. II. Statutes of 1875 : First Notice. III. Digest of Case^ IV. Iniermedlate Examination, Trinity Term, 1875: Qnestlonti and Answer*. V. Final ExanilDatiou, Mfchaelma* Term, 1875: Questions and Answers. VI. Reviewa of Books. Vll, cur- resfioudeuce and Notices. No. XXIV.— Trinity, 1875, I. The Statute of Uses, continued. U. DlKCSt of Cases. III. Intermediate Examination, Easter Term, 1875: Quesiloiis and Aiiawers. IV, final Examination, 'I riaity Term, 1875 : anesuoasaod Answers, V. A New Law Dictionary. VI. Corre»|iondence abd Notices, No. XXIII.— Easter, 1875. I. The Statute of UWB, II. Thp Statutes ori874 (Third Notice), m. Digest of Cas&t. IV. Inter- mediate l^xaiiiinaiiun, Hilary Term, 1875: Questions and Answerh. V. Fioal Exauiiuatiuu, Easter 1 eim, 1875 : Queadons and Answers. VL Correapoodeuce and Notices. No, XXII.— Hilary, 1875, I. The Statute of Frauds In relation to Comracte of ^e : Sale v. Lambert, and Potter v. Duffield II. The Statutes of 1874 (Second NoHce). HI. Ukest of Cabo. IV. In eroiedlate BaamfDailon^ Michaelmas Term, 1874: Quektlons and Answers. V. Final Examination, Hilary Term 1875- Quetion& VEl. A Review : Hunt^sLaw of Fraudulent Conveyance and Bills of Sale. VIlI. Answers to Correspondents. No. XL— Easter, 1872. f.'The Study'of theLaw. IL Leelslstive Prosppcts'of the Session: Married Women's f>roperly Act Amendment Bdl : imperial Court of Appeal. HI. DifSftt of Canes. IV. Intermediate Examlnatluit Quesuons and Ansuen (Hilary Term, 1872>. V. Final ExamlnaUon QuesUous and Anbwers (Esbter 'J erm. 1872). VL Answers to Correspondents. No. X.— Hilary, 1872. / I. Notice of the late Editor. IL The Study of the Law. IIL Die;e8t of Cases. IV. Intermediate Ex- amioailoD Qne»tf ons and Answers (Michaelmas, 187l>i V. Final Examination Questions and Answers (Hilary, 1872). VI. Answers to Correspondents. No, IX.— Michaelmas, 1871. r On Examinations. II.TbeSuI^ectof Pub»cProsecutors,continue'l. HI. Dlg^tofCases. IV. Inter- medlaie Examination Quesiionfa oo Chitty, Williams andSmltn (Trinitv, 1671), with Answen:. V. Final Examination Questious and Answers (Michaelmas Term, 1871). VI. Reviews of Books. VIL Answers to Currespoudents. No, Vm.— Trinity, 1871. I On theNecessiiyof providingaPubllcProsecutor: bytbeEditor. I. 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C- &- 62 LAW WORKS PUBLISHED BY THE BAR EXAMINATION JOURNAI.. THE BAR EXAMINATION JOURNAL, containing . the Examination Papers on all the subjects, with Answers, set at the ■ Greneral Examination for Call to the Bar. Edited by A. D. Tyssbn, B.CL;, M.A., Sir E.K. Wilson, Bart., M.A., and W. D. Edwakds, LL.B., Barristers-at-Law. Published in Numbers, 8vo., 3s. each, by post, 3«. Id., after the respective Examinations for Calls to the Bar in each year. Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 Trin. 1871 to Mich. Hil. 1876, both inclusive, may now be had. %* Copiei of Vol.1, of the Bar Examination Journal, contavni/ng 2ibi. 1 to 6, complete with Indexes, ^o., man/ ie liad, price 18«. chth. Copies of Vol. II. of the same, containing Nos. 7 to 11, co?nplet& mitJt Indexes, ^c, inay also ie had, priee 16«. cloth. "MeBBTS. A. D. Tyssen and W. 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Id: " The Imperfections of the Orthography of the Eng1i;,h Language." " Lectures, on the Origin of the English Language." " What Endowments are essential to those aspiring to become Barristers and Solicitors ?" " The Study nf the English, French and Latin Languages." "How to become an Orator; with Selections from the Speeches of Lord Brougham, Pitt, Curran, Daniel O'Connell, the late Earl of Derby, Mr. Gladstone, Mr. Disraeli, and others." "How many Hours a Day do you recommend me to study J" "The Improvement of the Memory." " What leads to Success in Life ?" "Brains; Quantity or Quality." " The Power of Imagination." " The Amalgamation of the Two Branches of the Profession." " The Advantage of Education." " Common Sense." "The New Jury Bill." " Ladies as Lawyers "■ " Psychological Enquiries." "Eminent Lawyers." " Rhetoric." " Quotations by Authors and Advocates." ''Men of Genius deHcient in Conversation." " The Choice of a Profession, and its Influence on the Mind." 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