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It had been

a question put by his Honour, said that they had no tained all that was material to the plaintiff, with a objection to the dismissal of the motions being with- view to enable him to get a decree,' the Court had not out prejudice to any fresh application to be made by forced the defendants to include in it burdensome acthe defendants after the answers had come in.

counts, which would be equally useful to the plaintiff if

furnished after the hearing. Perhaps De la Rue v. DickKINDERSLEY, V.-C., said that the defendants had inson (loc. cit.) was a case of that nature. But certainly utterly failed in proving that their application could the Court would not excuse defendants from answering be granted with justice. They had not shown that a in full, on the ground, that, if the plaintiff failed in different course to that adopted had been open to the proving the validity of the patent, such answers would plaintiff. If he had joined all or any number of the be useless to him. Nor could the number of suits make defendants together in one suit, his bill would have any possible difference. Each defendant would incur been demurrable. If, on the other hand, he had filed bills no expense, except about his own answer; and the in the first instance against only one or two, he would plaintiff had, as against each, a right to an answer as have been met, in subsequent suits against others, by the to all matters on which he might obtain a decree rule of this Court, that a patentee, seeking to restrain against him. an infringement of his rights, must not have slumbered His Honour put out of his consideration the question upon them. The difficulty of proceeding against all whether the previous actions Law had established the the 134 at once would not have been admitted then validity of the patent. He also assented entirely to as a sufficient excuse, for each one could have replied the abstract proposition, that, where a person having that he had nothing to do with the rest.

a single right had, either at Law or in Equity, proceeded put, that the plaintiff's course was grossly oppressive, against many separate individuals for infringement of both to the individual defendants, and to the public that right, this Court would struggle to prevent the at large. But the burden on each defendant was not mutiplicity of suits. But the defendants had made a increased by the fact that others were burthened mistake in making their application at the present equally (for his Honour could not take notice of any stage of the cause. The Court could not interfere at increased expense to which the plaintiff's course might present without infringing on the clear and elemenput the association which had been referred to); and tary right of the plaintiff. The motions must be as for the public grievance, the Court, though it dismissed with costs; but without prejudice to any would struggle against a multiplicity of suits, similar application to be made by the defendants, after must respect the plaintiff's recognised rights. Each their answers had been put in. of the four motions amounted substantially to this : That some one suit should be selected (whether by the

24 Nov. 1863. plaintiff, or, according to the fourth motion, by the A motion was this day made before the Lord defendants), and that the rest of the defendants Chancellor by way of appeal against the above deci. should not be compelled to answer till that one cause sion, when his Lordship directed the motion to stand had been decided. It had been argued, in support of over till the first day of sittings after term, in order the motions (though the point was not put forward in that the defendants might give such particulars of the notices), that an issue ought to be directed to try the machines manufactured, used, or sold by them as the validity of the patent; and it had been represented would enable him to ascertain the different classes of as a consequence which must follow from directing an alleged infringement. His Lordship intimated, that, issue, that the Court would deem it useless to go in when this was done, he would reduce the number of the mean time into the second of the two questions suits so as to correspond with such classes, and diinvolved in each suit, viz., the fact of infringement, rected, in the meantime, that all proceedings in the and to require answers from the different defendants. several suits should be stayed. Now, his Honour would assume that, at a proper time, the defendants might ask the Court to direct an issue. Even the plaintiff might consent to an issue, yet, without inconsistency, persist in requiring answers

Stuart, V.-C.

} BULKELEY V. STEPHENS. respecting every matter upon which he would be 13, 14, 16, 17 Nov. 1863. entitled to a decree as to the alleged acts of infringe- | Will, Construction—"Issue Living at my Death" ment, if he should succeed in proving the validity of Conversion-Income-Tenant for Life-Apthe patent. The defendants had urged that they

portionment. were ready, without answering, to give the plaintiff all the information of which he really stood in need Where a testator left his residuary real and personal at the present stage of the suit ; and that their answers estate to trustees upon trust, to convert and invest upon -if they should be compelled to answer-would con. Government or real securities, and the will authorised tain nothing as to the alleged infringements. But the the trustees to postpone conversion as long as they should rule was, that, if a defendant answered at all, he must think fit:answer in full. Sometimes, when an answer con- Held (the estate consisting of unauthorised but not

wasting securities), that the tenant for life was entitled to The estate, which was very large, included a sum of the income of the fund in specie from the testator's death :- 13,0001. Brazilian 6 per cent. Home Stock, 130,0001.

Held, also, under the circumstances, that the tenant Bank of England Stock, 2,9231. Terminable Bank for life of a sum of 300,0001., directed to be set apart Annuities, 40,0001. Russian 5 per cents., and by the trustees, but which had not been set apart by them 12,0001. Royal Exchange Stock. when the bill was filed, was entitled to interest on such No part of the estate had been realised or converted sum from the testator's death.

by the trustees when the bill was filed, and no sum had Dimes v. Scott, 4 Russ. 209, explained.

been set apart to answer the legacy of 300,0001. Where, under orders given in Chambers, a sum of The usual administration decree had been made, and stock was sold shortly before a dividend was due :- certain parts of the estate, including the Brazilian 6

Held, that the tenant for life of such sum was entitled per cents., had been subsequently converted. o receive out of the proceeds of the sale, a sum equal to The cause now came on upon further consideration, the apportioned part of such dividend from the last and upon an adjourned summons to vary the Chief dividend day up to the day of sale.

Clerk's certificate and upon petition.

The main question was, whether any and what The testator in this cause, Stephens Lyne Stephens, interest was to be allowed to the widow, the tenant for by his will, dated the 5th of December, 1851, after life, during the first year from the testator's death; making certain bequests, gave to his wife the de- 1st, upon the 300,0001. legacy, and 2nd, upon the fendant Yolande Lyne Stephens, and to the plain- general residue. tiffs Sir Richard Williams Bulkeley and Sir John The Brazilian 6 per cents. had been sold shortly William Lubbock, and to Baron Rehausen their before a dividend was due, under an order in Cham. executors administrators and assigns, the sum of bers, and a claim was made by the widow to receive 300,0001. upon trust, to invest the same as therein out of the proceeds of such sale a sum equal to the mentioned, and to pay the income thereof to his apportioned part of the current dividend from the last wise, for her life ; and after her death such legacy dividend day up to the day of sale. was to fall into the residue of his estate ; and after giving various annuities and legacies the testator

Malins, Q.C., and B. B. Rogers, for the trustees, devised and bequeathed all his residuary real and submitted the questions to the Court. personal estate to the same trustees, upon trust, to

An objection was made by counsel to a child who sell and convert, and to invest the proceeds in was born on the 19th of November, 1860, being government or real securities, and to hold the trust admitted to share, on the ground that such child fund upon trust to pay the annual produce to his said might not have been in esse at the testator's death. wife for her separate use without power of antici- His Honour inquired if there was any authority for pation ; and after her death, upon trust, to pay excluding such child, and no such authority being assign and transfer the fund unto and amongst such cited, intimated that the child must be allowed to of the issue of the testator's uncle William Lyne,

share. and of the testator's deceased uncles the Rev. Richard Lyne, Edward Lyne, and Joseph Lyne, as should be On behalf of the persons interested in remainder, living at the testator's death (excepting Eliza Phila- Bacon, Q.C., Osborne, Q.C., Cole, Q.C., Hinde Palmer, delphia Lyne, and John Millett Lyne). And the Q.C., Greene, Q.C., Wickens, Dewsnap, C. M. Tatham, testator declared that it should be lawful for the trus- Marten, Macnaughten, Westlake, Woodhouse, Rowcliffe, tees or trustee to permit all or any part of his said and Birley, argued residuary personal estate to remain upon the same

1st. As to the 300,0001. legacy, that it was clearly securities in which it might be found at his death, for settled that where the income of a pecuniary legacy so long as they should in their discretion, and without

was given to one for life, with remainders over, the being answerable or accountable for the exercise of such tenant for life could not claim interest during the first discretion, think expedient or proper. And the testator year from the testator’s death, thereby appointed his wife sole executrix of his will.

Gibson v. Bolt, 7 Ves. 96 ; The testator died on the 28th of February, 1860.

2nd. As to the residue, that the discretionary power The bill was for the general administration of the to postpone conversion did not take the case out of estate, and was filed by the trustees, other than the the rule in Dimes v. Scott (loc. cit.); and that the widow, against her and three of the “issue” interested tenant for life would only be entitled to a sum equal in the residue. Such “issue" at the time of the to the dividend on so much Consols as the proceeds testator’s death, comprised eighty-nine persons ; but of the residue, if turned into money at the end of a the number was subsequently increased to ninety- year from the testator's decease, would have purthree, four more children answering to the description chased, such dividends to be computed from the death of such issue, having been born within nine months of of the testator, the testator's death, the last of whom was born on the Taylor v. Clark, 1 Hare, 162; 19th of November, 1860.

Dimes v. Scott, 4 Russ. 209 ;

Walker v.

Holgate v. Jennings, 24 Beav. 623 ;

and all the circumstances of the case, and, doing so, Morgan v. Morgan, 20 L. J. Ch. 109;

he could find nothing either in the conduct of the Meyer v. Simonsen, 5 De Gex & Sm. 723 ; parties or the state of the investments that would Re Llewellyn's Trust, 29 Beav. 171 ;

warrant him in depriving the tenant for life of the Shore, 19 Ves. 387.

income actually yielded by the testator's estate from Craig, Q.C., Martindale, and Cotton, on behalf of the time of his death. As to the interest on the the tenant for life, argued—that the power to postpone 300,0001. legacy, his Honour thought it hard to see conversion took the present case out of the operation any difference in principle between that and the inof the rule in Dimes v. Scott, and that that rule had coine of the residue. The usual rule as to interest on only been adopted in cases where there had been some

legacies was not applicable to such a case as this. It wrongful dealing with the fund, or where the fund was true that the legacy had not been carried to a consisted of wasting securities. They cited and com- separate account, and so strictly appropriated, but mented on,

he should be doing a very harsh thing if he were Angerstein v. Martin, T. & R. 232;

on that account to deprive the widow of the interest Macpherson v. Macpherson, 1 Macq. H. of L. Ca.

on her legacy, when there was more than that amount 243;

in the hands of the trustees by whom that legacy Horce v. Dartmouth, 7 Ves. 148 ;

was to be invested. Caldecott v. Caldecott, 1 Yo. & Coll. C. C. 312; The question of the apportionment was then raised. Hume r. Richardson, 31 L. J. Ch. 713; 8 Jur. (N. S.) 686.

Hinde Palmer, Q.C., against the widow's claim,

insisted that the present case was not within the Srtant, V.-C., in giving judgment, said that it was Apportionment Act, 4 & 5 Vict. c. 22. impossible not to see the difficulties of reconciling the various decisions in the books, though he thought

Osborne, Q.C., on the same side, cited, much of that difficulty arose from the over-hasty

Scholefield v. Redfern, 1 N. R. 465; 9 Jur. (n. s.)

485. adoption of general rules, which, if strictly adhered to, would work injustice in particular cases. It was

Craig, Q.C., contrà, cited, impossible to apply the same rule to cases where the Lord Londesborough v. Somerville, 19 Beav. 295. estate mainly consisted of leaseholds or terminable

His Honour said, that, ordinarily, on a change of annuities, and where the estate consisted of good permanent securities. He was of opinion, however, kind here asked for, but this was a strong case in

securities the Court did not make an order of the that Sitwell v. Barnard (6 Ves. 541), Angerstein favour of the tenant for life, and, although he gave 5. Martin (loc. cit.), and Hewitt v. Morris (T. & R. 241), full force to the reasoning of the Vice-Chancellor were still the law of the Court. Dimes v. Scott (loc. cit.) Kindersley, in Scholeficul v. Redfern, (loc. cit.) he did not appear to his Honour strictly applicable to the case before him. It had often been said, both by where the sale of the stock in question had been made

thought that it did not apply in the present instance, Judges and counsel, that there was a rule in Dimes v. Soset, but if there was in fact any rule laid down in under the authority of the Court at various periods for

the benefit of the estate, and where, moreover, under that case, such rule applied only where there had been the will, the tenant for life had been held entitled a course of conduct pursued which made it difficult for the Court to do justice to the various parties in to receive the income actually produced by the testaany other way. His Honour then commented upon the case of Lord Londesborough v. Somerville (loc. cit.)

tor's estate at the time of his death. He thought that Sitwell v. Barnard, and pointed out the lengths to

was exactly in point, and on the ground on which the which the Court had gone in that case in order to do

Master of the Rolls decided that case, viz., on that of justice between the parties. His Honour then observed, that in the present case, that the widow was entitled to the apportionment she

the general justice of the case, he was of opinion a sale was directed, and the widow was made tenant

claimed. for life of the fund which was to result from such sale. If the matter had rested there, certain recent cases might have had a direct application, but the testator Stuart, V.-C.

Re WILLS' TRUSTS. proceeded to declare "that it should be lawful for the 20 Nov. 1863. trustees, &c.” (his Honour read the power to postpone

Practice-Irrelevant Matter-Costs-Next conversion). That was a large discretion. What was

Friend. the scope and object of that discretion, and of all the other directions about conversion and investment ! Where a petition contained personal and irrelevant Sarely, the benefit of all parties, first of the widow, charges against the respondent, the husband of the and then of those in remainder. His Honour would petitioner, the next friend was ordered to pay so much set upon what he considered to be the only sound of the costs on both sides as were properly occasioned principle, viz., to look at the whole scope of the will, by the introduction of such charges into the petition.



This was a petition presented by a married woman

“ The Chronicles of Stanfield Hall," and were pubby her next friend for the appointment of new trustees lished in that journal during the year, a part appear. of a fund to the dividends of which she was entitled ing each week. He was paid weekly, at the rate of for her separate use during her life.

101. per week. He did not, however, assign to the The petition charged the husband of the petitioner proprietors of the London Journal any of the rights with cruelty and extravagance, and affidavits were

which are granted or reserved to authors by law. The filed by the petitioner in support of such charges. defendants, on the 18th of October, 1862, commenced The husband filed affidavits answering those charges, publishing weekly a supplementary number of the

London Journal, purporting “ to be had with or and bringing counter-charges against the petitioner.

without the current number of the London Journal," Greene, Q.C., and Rudge, appeared for the petitioner, and containing each week parts of several tales which

had previously appeared in the London Journal. In Swanston, for the husband.

the supplementary number for the 27th of June, 1863, His Honour said, that the practice of introducing the publication of the tale called “ Ulrick the Saxon," irrelevant and personal matter into such petitions was under the title of “Stanfield Hall, by John Frederick greatly to be reprehended, and in granting the order Smith, Esq.,” was commenced, and this republication prayed for, directed that so much of the costs on both had been continued by the appearance of a further sides as were properly occasioned by the introduction part of that tale in each succeeding supplementary of irrelevant matter into the petition should be paid by number, and in the heading of each supplementary the next friend, but that the husband should pay the number there was printed in capital letters, “A recosts of so much of his own affidavit as related to the issue of John Frederick Smith's best tales, 'Stanfield counter-charges brought by him against his wife—the Hall,' and 'Amy Lawrence, the Freemason's Daugh. costs of so much of the petition as related to the ter.'” The plaintiff had not given his consent to such appointment of new trustees, and other legitimate republication. matter, to come out of the estate.

By section 18 of the Act to Amend the Law of

Copyright (5 & 6 Vict. c. 45), the proprietors of Stuart, V.-C.,

Reviews, Magazines, or other periodical works have

the same copyright given to them in the articles SMITH V. JOHNSON. Lords Justices.

published in such reviews, magazines, or periodical 19, 23 Nov. 1863.

works, and paid for by such proprietor, as is given

by that Act to the authors of books, except that Copyright Act (5 & 6 Vict. c. 45, s. 18) the authors of articles so published periodically may, Republication—"Separately or Singly.after twenty-eight years from their first publica

tion, publish the same in a separate form for the The proprietors of a weekly journal published in remainder of the term given by the Act, and it is also parts, under the form of supplementary numbers to the journal (which were sold either with or without the provided, that, during the term of twenty-eight years,

the publisher shall not publish any work “separately current numbers), certain tales which had appeared

or singly" without the consent previously obtained of some years previously in the journal. The tales were the author or his assigns. in this manner reproduced in conjunction with other matter, which had also been previously published in Bacon, Q.C., and Westlake, argued that the repubthe journal, though not in the same numbers as the lication in question was a "separate and single” pubtales, so that the supplementary numbers were not lication within the proviso of the section of the Ac simply reissues of old numbers :

above referred to. They cited, Held, that such a republication of the tales was so Mayhew v. Maxwell, 1 J. & H. 312; far "separate and singleas to be inconsistent with Bishop of Hereford v. Griffin, 16 Sim. 190. the rights reserved to the author by the 18th section of the Copyright Act.

Malins, Q.C., and Speed, contended that this was

not a separate or single publication ; inasmuch as it This was a motion for an injunction to restrain the was virtually nothing more than a reprint of old num. defendants, Messrs. Johnson and Wilson, the present bers of the journal, although the articles were arranged proprietors of the London Journal, a weekly publica- differently, and various matters of ephemeral interest tion, from publishing certain tales comprised under were omitted ; and they remarked that it would not the title of “The Chronicles of Stanfield Hall,” under be possible to purchase any one of the tales in questhe following circumstances :

tion, except intermixed with other tales, all of which In 1849, the plaintiff was employed by the then pro- had formerly appeared at various times in the journal. prietor of the London Journal to compose, and he did compose, three tales called “Ulrick the Saxon," "The STUART, V.-C., thought that the view taken of the Heiress,” and “Cromwell, or the Protector's Oath,” proviso by the Vice-Chancellor of England in the Bishop which were comprised under the common title of of Hereford v. Griffin (loc. cit.), and afterwards adopted


by Wood, V.-C., in Mayhew v. Maxwell (loc. cit.), viz., side of the Great Northern Railway, in the immediate that the right of the publisher was merely to publish an neighbourhood of the Stevenage station. article in a particular manner, viz., in the number of Previously to 1858, the goods traffic of the railway the periodical in which it should have first appeared, or at Stevenage was carried on by means of a siding on in an exact reprint of that number, was also the view the east side of the line, over which quantities of which he was bound to adopt. And inasmuch as the manure, for the use of the farmers and gardeners in tales in question were republished in a form different the neighbourhood, were carried. from that in which they first appeared, and conjoined In the year 1858 a siding was constructed on the with different matters, he considered that such re- west side of the line, between the railway and the publication was contrary to the rights of the plaintiff plaintiff's house. This siding was principally used for as anthor, and he must, therefore, grant the injunc- unloading manure. tion asked for.

It appeared from the evidence of the station-master Minute. — Restrain the publication of “Stanfield at Stevenage for the time being, that, while the siding

was being constructed, the plaintiff complained to him Hall,” in any supplementary number of the London

respecting the position of the gateway leading from Journal, or separately or singly, or otherwise than as part of the numbers in which it was originally pub- the siding into the road by which the plaintiff's house lished, without the licence or consent of the plaintiff

was approached. It did not appear that he made any or his assigns.

inquiry regarding the use to which the siding was to

be applied, or made any objection to its being used 23 Nov. 1863.

for the manure traffic. A motion to dissolve the injunction was set down

It also appeared that in the year 1859, the quantity to be heard by the Lords Justices ; but counsel for the of manure brought to Stevenage station was 782 tons ; defendants now informed their Lordships that the liti- and in 1862, 1,184 tons. The trucks were sometimes gation had been arranged by compromise.

allowed to remain at the station for one or two weeks, and the manure was also sometimes stacked there.

The plaintiff admitted that the traffic was at first

carried on so as to cause him little or no annoyance ; SWAINE V. THE GREAT and, according to the evidence of the station-master, Wood, V.-C.

NORTHERN RAILWAY he even regarded it as beneficial to his property. In 17, 18 Nov. 1863. COMPANY.

December, 1861, he for the first time complained of it.

During the summer of 1862 the nuisance went Practice-Injunction - NuisanceLegal Right on increasing, yet, as it appeared, even in March or -25 & 26 Vict. c. 42-Delay-Acquiescence. April, 1862, he represented to a person with whom he Where a plaintiff complains of an infringement of a

was in treaty for the sale of the house, that the inlegal right, and there has been ample opportunity to active steps were taken by the plaintiff to bring

convenience thereby caused was not serious. No establish the right at Law, the Court will not interfere

the matter under the notice of the company till by injunction unless this has been done, --notwithstanding

November, 1862 ; the Ad 25 & 26 Vict. c. 42.

some correspondence thereupon A, being owner of a house in the neighbourhood took place, which continued till the 3rd of January, of a railway station, where the traffic carried on was

1863. Nothing having been done by the company to a large exctent in manure, allowed a siding to be made up to that time to abate the nuisance, the adjoining to his house without inquiry as to the purpose in this suit, praying that the defendants might be

plaintiff, on the 19th of January, 1863, filed his bill for which it was to be used. The siding was afterwards restrained from using the siding for the deposit or chiefly used for unloading trucks of manure, but the business was at first carried on so as not to annoy A.

stacking of manure or other matter whereby any

noxious, offensive, or unhealthy fumes, vapours, or Three years after the siding was made, he began to como plain of the nuisance ; but took no active steps to bring it stenches might be caused or emitted, or from permitunder the notice of the company till nine months later, sive matter to remain on the siding, or using the siding

ing their trucks or waggons containing any such offenduring which period the traffic was increasing. Three in such manner as to interfere with the quiet and wholemonths afterwards he filed a bill seeking to restrain the

some enjoyment of his house by himself and his family. company from using the siding so as to interfere with the wholesome enjoyment of the house. No action at

Immediately after the filing of the bill, the nuisance Law had been brought :

was considerably abated ; and in consequence no apHeld, at the hearing, that on the grounds of delay The cause now came on to be heard.

plication was made for an interlocutory injunction. and aquiescence, he was not entitled to the relief sought.

Willcock, Q.C., and Roxburgh, were for the plaintiff. The plaintiff was owner of a house at Stevenage They submitted that the nuisance in the present which was built in 1856, and was situated on the west case was such as to entitle them to damages at law,

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