1840. Sweet v. Maugham.

injunction, contended, first, that the injunction was, at the least, too extensive, and that it ought to be confined to those reports alleged to have been copied from "The Jurist," in which the plaintiffs claimed copyright; and, secondly, that the plaintiffs ought, (especially as they claimed copyright in some only of the reports which were the same in both publications,) to have specified in their bill, and also in their affidavit on which the injunction was obtained, the particular reports which they alleged to have been pirated: whereas, in their bill, they had stated merely that many of the reports in "The Legal Observer," had been copied from "The Jurist;" and, in their affidavit, that a book marked B., which contained eighteen numbers of "The Legal Observer," contained copies of reports in a book marked A., which contained several numbers of "The Jurist."

Mr. Knight Bruce and Mr. Sharpe, for the plaintiffs, said that, in Lewis v. Fullarton, (a) the pirated work did not wholly consist of original matter, but partly of original matter and partly of selections from other authors; and yet the Master of [*53] the Rolls refused to *confine the injunction to the original matter, and granted it generally; and that, in cases of infringement of copyright, the plaintiff was not required to point out the particular parts of the rival work, which he alleged to have been pirated from his work.

THE VICE-CHANCELLOR:-As long as I remember the court, it never has been thought necessary for a party who complains that his copyright has been infringed, to specify, either in his bill or his affidavit, the parts of the defendant's work which he thinks have been pirated from his work; but it has been always considered sufficient to allege, generally, that the defendant's work contains several passages, which have been pirated from the plaintiff's work; and to verify the rival works by affidavit. Then, when the injunction has been moved for, the two works have been brought into court, and the counsel have pointed out

(a) 2 Beav. 6.

1840.-Ex parte Williams.

to the court the passages which they rely upon as showing the piracy.

The injunction, as it is now expressed, does not extend to the reports which have been taken from a common source; but to those only which have been copied from "The Jurist," and which are the plaintiffs' copyright. As it is quite plain that an injury has been done by the defendants, I shall continue the injunction as it now stands, and let the plaintiffs bring such action as they may be advised. I shall not fix any time for bringing the action; but, in order to guard against delay in commencing or proceeding with it, I shall give each party liberty to apply. The defendants must admit that the gentlemen who furnished the reports to "The Jurist," have assigned their copyrights therein to the plaintiffs.

*Mr. Wigram asked that the defendants might be [*54] allowed to sell those numbers of "The Legal Observer" which were already printed, they keeping an account.

THE VICE-CHANCELLOR said that he could not grant that permission without the plaintiffs' consent.

Mr. Knight Bruce said that they could not consent.

IN THE MATTER OF 11TH GEO. 4, AND 1ST W. 4, c. 60. Ex Parte WILLIAMS.

1840 10th Juue.

Four co-partners purchased an estate out of the partnership assets, and took a conveyance to themselves as tenants in common in fee. One of them died intestate as to his real estates, leaving en infant heir. The survivors settled, with his executors, for the value of one-fourth of the estate, and then petitioned, under the 11 Geo. 4, and 1 Will. 4, c. 60, that the infant might be declared a trustee of one-fourth of the estate, and might join in conveying the estate to a purchaser. The court refused to make the order, and said that a bill must be filed.

FOUR persons, who were co-partners as bankers, purchased a freehold estate out of the assets of the partnership, and had it

1840.-Fryer v. Ranken.

conveyed to them and their heirs as tenants in common. Afterwards one of the partners died, intestate as to his freehold estates, leaving an infant heir. The surviving copartners settled accounts with the executors of the deceased, and allowed them, in account, one-fourth of the value of the estate. They then con. tracted to sell the estate, and presented a petition under the 11th Geo. 4, and 1st Will. 4, c. 60, alleging that the infant was a trustee for them of one-fourth of the estate and praying that he might be ordered to join, with them, in the conveyance to the purchaser.

Mr. Cockerell, for the petitioners, suggested that it was doubtful whether the court could direct the usual reference [*55] *in this case, as the effect of it might be to take away the infant's estate in his absence.

THE VICE-CHANCELLOR declined to make any order under the Act; and said that a suit must be instituted for the purpose of having the infant declared to be a trustee.(a)

1840: 12th June.

FRYER v. RANKEN.

"I give, to my wife, all my ready money at my bankers, in my dwelling-house, or elsewhere; by which I mean money not invested in security or otherwise bearing interest, but what I may have in hand for current expenses at the time of my decease."

Held that cash balances in the hands of the testator's bankers and of his agent, and dividends of stock due at the testator's death, passed by the bequest; but that the rent of a house, and the interest of a sum due on mortgage, did not pass.

THE will of Cornelius Fryer contained the following bequest: "I give and bequeath unto my dear wife, Susannah Fryer, all my ready money at my bankers, in my dwelling-house, or else

(a) See the 18th sect. of the Act.

1840. Fryer v. Ranken.

where: by which I mean money not invested in security or otherwise bearing interest, but what I may have in hand, for current income and expenses, at the time of my decease, subject to the payment, thereout, of the legacy of 50%. hereinafter given to Miss M. Wilson, now residing in my house. I also give and bequeath, unto my said dear wife, absolutely, all my plate, jewels, trinkets, seals, watches, porcelain and other china, books, pictures, prints, paintings, household furniture, linen, wearing apparel, stores, wines and other liquors, horses, harness and carriages, *together with my estate and interest in the house [*56] I now occupy, or such other house I may occupy as my usual residence at the time of my decease, and all the effects in and about the same, excepting only securities for money. I give and bequeath, to the said M. Wilson, a legacy of 50l. to be paid out of my ready money before mentioned, free of legacy duty or other deductions, as soon as conveniently may be after my decease." And after giving some other pecuniary legacies, the testator bequeathed the residue of his estate, to the defendants, and appointed them and his wife, who was the plaintiff in the cause, the executors and executrix of his will.

The testator, at his decease, had a cash balance in the hands. of his bankers; another cash balance in the hands of C. Ranken, his agent and receiver, on whom he was in the habit of drawing as on a banker, and who kept a running account with him; interest due on a mortgage; dividends due on stock; and rent due for a house. Ranken was agent for the mortgagor as well as the testator; and, as the interest on the mortgage became due, he had been in the habit of transferring the amount from time. to time from the mortgagor's account to the credit of the testator's account: but, by some accident or oversight, the amount of the half year's interest due at the testator's death, had not been so transferred.

The question was, whether any, and which of the sums above mentioned, passed by the above bequest.

Mr. Knight Bruce and Mr. Pole, appeared for the plaintiff.

1840. The Midland Counties Railway Company v. Westcomb.

Mr. Jacob, Mr. Collins and Mr. Sawyer appeared for the residuary legatees.

[*57]

*THE VICE-CHANCELLOR held that the balances in the hands of the testator's bankers and of his agent, and the dividends due on the stock, which he might have received on applying for them, passed by the bequest: but that the rent of the house, and the interest on the mortgage, which, at the testator's death had not been transferred to the credit of his account with Ranken, who, therefore, then held it as agent for the mortgagor, did not pass.(a)

THE MIDLAND COUNTIES RAILWAY COMPANY v. WESTCOMB. 1840: 19th June.

A. agreed to sell land to a railway company, but died before he had executed the conveyance, leaving an infant heir. The company then instituted a suit, in order to obtain a conveyance from the infant.

Held that, although the company were bound, by their act, to pay the expenses of the conveyance of land taken by them, yet, as A. had occasioned the suit by suffering the land to descend to an infant, the costs of the suit, and of having the conveyance settled by the Master, must be paid out of the purchase-money.

THE defendant's father had agreed to sell a piece of land to the plaintiffs, for the purposes of the act for making the railway; but, before he had executed the conveyance, he died intestate, leaving the defendant his heir.

The defendant, being an infant, the plaintiffs were under the necessity of instituting this suit, in order to obtain a decree directing the infant to convey the piece of land to the plaintiffs: and the court, having decreed accordingly, the question was, whether the costs of the suit were to be paid by the plaintiffs or by the defendant.

(a) See Vaisey v. Reynolds, 5 Russ. 12.