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Caution.-Beware of the words "from Metcalfe's," adopted by some houses. Orders for THE JURIST given to any Newsman, or letter (postpaid) sent to the Office, No. 3, CHANCERY LANE, or to V. and R. STEVENS & G. S. NORTON, (Successors to J. & W. T. Clarke, late of Portugal Street), 26 and 39, BELL-YARD, will insure its punctual delivery in London, or its being forwarded on the evening of publication, through the medium of the Post Office, to the Country. Printed by WALTER M'DOWALL, PRINTER, residing at No. 4, Pemberton Row, Gough Square, in the Parish of St. Bride, in the City of London, at his Printing Office, situate No. 5, Pemberton Row aforesaid; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. II, John Street, Bedford Row, in the County of Middlesex. Saturday, May 23, 1846. No. 490-VOL. X. MAY 30, 1846. PRICE 18. The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: {E. T. plo, B. Esq. of the Inner Vice-Chancellor Wigram's [F. En, Barrister at LawLincoln's Temple, Barrister at TENISON EDWARDS, Esq. of the at Court Court of Queen's Bench Queen's Bench Bail Court Court of Common Pleas, tion of Voters Act.. Inn, {G. J. P. SMITH, Esq. of the Inner Temple, Barrister at Law. A. V. KIRWAN, Esq. of Gray's Inn, Barrister at Law. (W. PATERSON, Esq. of Gray's Court of Exchequer.... { by the statutes which have been passed to create and regulate it, as in France it must be governed by the law of that country; but such a law has no extra-territorial power, and cannot be enforced beyond the limits of the estate. Admitting, therefore, that, by the law of France, no one can, against or without the consent of the author, make or print any copy of his work at any time or in any place, no right can be claimed in this country as founded upon such a law, nor can any right be claimed here except what can be supported by the law of this country. The subjects of this country are not bound to obey such a law of France, nor the courts of this country to enforce it. It follows, that a British subject may, at the common law, freely print and publish in Great Britain any number of copies of a French work, without being exposed to an action at the suit of the French author, whose exclusive privilege, founded upon the French law, is limited by the French territory; and, indeed, if this were not so, the attempt to establish international copyright by treaty would have been altogether unne Ax important addition has recently been made to the law of copyright by the Court of Exchequer, in its judgment in Chappell v. Purday, (14 Mee. & W.303). Upon the facts of the case two questions were raised: first, whether, at common law, a foreigner residing abroad, and composing a work, has a copyright in England; and, secondly, whether such foreign author or his assignee has such a right by virtue of the English statutes. The question, whether copyright existed at common law, will be found discussed in the great cases of Millar v. Taylor (4 Burr. 2303) and Donaldson v. Beckett, (Id. 2408; 2 Bro. P. C. 129). In the former of these, it was held by Lord Mansfield, Mr. Justice Aston, and Mr. Justice Willes, that it did exist; and, in the latter, the majority of the judges were of the same opinion; but they held also, that it was taken away by the statute of Anne. The majority were likewise of opinion, that, by the common law, the author had the sole right of printing and publishing in perpetuity. If, therefore, the common law right ex-cessary." tended to foreigners, they would, unless also affected by the statutes, have now a greater right than English subjects. The rule, that, at common law, an author had the sole right of printing and publishing his work, is so vague, that a foreigner might or might not be included; and, in order to decide the first question raised in Chappell v. Purday, it became necessary to ascertain precisely what was meant by the term "common law." In the cases we have referred to, the Court of Exchequer have come to the conclusion, that the right did not extend to foreigners. They were "all of opinion that no such right exists in a foreigner at the common law, but that it is the creature of the municipal law of each country, and that in England it is altogether governed VOL. X. T The expression, that no such right exists in the foreigner at common law, but that it is the creature of the municipal law of each country, and that in England it is altogether governed by the statutes which have been passed to create and regulate it, seems at variance with the doctrine in the old cases, that the right did exist at common law; and we think the recent decision, as far as regards the first question, does, in reality, conflict with those cases. By the common law, the judges who decided them must have meant the common municipal law, for none other was applicable to the case before them. And, although copyright be the creature of the municipal law of each country, it does not necessarily follow that it cannot exist in a foreigner. The right of property in goods or other per SPAPE sonal estate in this country, the right to sue on a contract made here, are both of them, we apprehend, creatures of the common law, and yet a foreigner may acquire such rights without having ever been in this country. That copyright is a creature of the municipal law, proves nothing: the same law which gives the right to a subject, may prescribe that the foreigner may have it also; for it cannot be denied, that, by the municipal law, a foreigner may have some rights. of learning and the arts surely embraces a wider scope than the protection of British subjects, and fostering and encouraging British industry and talent. The Barons of her Majesty's Exchequer appear to be behind the rest of the world, and not, judicially at least, to be aware that British industry and talent is not necessarily fostered by protection. What follows, though technical, is, perhaps, more to the purpose; "and," they continue,"adverting principally to the statutes of the 8 Anne, and 54 Geo. 3, their provisions clearly refer to such works as are first published in Great Britain or the United Kingdom, from which first publication the time begins to run within which an entry is (under the 2nd section of the former statute, and under the 5th section of the latter) to be made at Stationers' Hall, in order to the recovery of penalties, and within twelve months after which publication copies are to be delivered by the publisher to the British Museum and other libraries." And, therefore, they conclude, upon the construction of the statutes alone, that a foreign author has no copyright. The Court of Exchequer appear to have confounded municipal law with statute law. They say that copyright is the creature of the municipal law of each country, and in England is altogether governed by the statutes which have been passed to create and regulate it, and, therefore, it cannot exist in a foreigner; but this is beside the first of the questions then before them. That question was, whether the right which existed independently of the statutes, and was the creature, so to express it, of the unwritten municipal law, extended to foreigners. Do they deny that such a right ever existed? It would seem so; for, instead of deciding the question arising upon it, they have held that the common law does not give to the foreigner any interest in the right which has been created and regu-sult of which seemed to be, that, if a foreign author, lated by the statutes; for such their judgment will be found to be on an attentive perusal. And the distinction is important; for if the foreigner before the statutes had the same right as an English subject, that right, as we said before, must either still exist, or the statutes must be held to have applied to the right of the foreigner as well as the right of the subject, and to have created and regulated, to use the words of the Court of Exchequer, a new right for the one as well as the other. We have made these observations because the court seems somewhat hastily to have dismissed the branch of the question to which they relate, and not, as they say, feeling any difficulty upon it, to have founded their judgment upon reasoning which will not bear the test of examination. The second question they had to decide was, whether a foreigner residing abroad and publishing a work there has a copyright in it in this country by the statute law. "If," they say, "a judicial construction had been put on these statutes by a direct and deliberate decision of any court, we should feel bound by it; but, supposing for the present that there is no such decision, and that the question comes now to be considered for the first time, we should feel no difficulty as to the proper construction to be put upon these statutes. They were passed for the encouragement of learning and the arts, by ensuring to authors, artists, and inventors the reward of their labours. In their language the arts are general, but primâ facie it must be intended that a British Legislature means only to protect British subjects, and to foster and encourage British industry and talent; and, therefore, when statutes of the United Kingdom speak of authors and inventors, they mean authors and inventors being subjects of and residents in the United Kingdom, or, at least, subjects by birth or residence, and do not apply to foreigners resident abroad." This seems very bad reasoning. The encouragement The judgment then proceeds to examine into the cases which had been decided upon the subject, the re not having published abroad, first publishes in England, he may have the benefit of the statutes, (which, we may observe in passing, is at variance with the protection of British industry), but that no case had decided, that, if the author first published abroad, he could afterwards have the benefit of it by first publishing here. It then adverts to the 4 Geo. 3, c. 107, and the 2 Vict. c. 59, International Copyright Act; but, as it is admitted that the argument to be derived from these is not very cogent, we need not further notice it. Upon the whole, then, say the court, "We think it doubtful, whether a foreigner not resident here can have an English copyright at all; and we think he cer tainly cannot, if he has first published his work abroad before any publication in England." Such is the decision of the Court of Exchequer, which, as to the last branch of it, however, is now of little importance, as the 1 & 2 Vict. c. 59, the former International Copyright Act, and the 7 & 8 Vict. c. 12, the present, give her Majesty power, by order in Council, to direct that authors of works first published in foreign countries shall have a copyright therein in this country, and enact, that such authors shall not have any copyright otherwise than such as they may become entitled to under those acts. COURT OF QUEEN'S BENCH. May 26.-Lord Denman, C. J., delivered the judg ment of the court in the following cases:Doe d. Molesworth v. Sleeman-Rule absolute for new trial. Lowe v. Penn-Rule absolute for new trial. Williams v. Stiven-Rule absolute to enter a verdict on the fourth issue. May 29.-Patteson, J., delivered the judgment of the court in the following cases:— Harrold v. Whitaker-Judgment for plaintiff. A REPOSITORY OF POINTS IN EQUITY AND CONVEYANCING, Designed to combine the Advantages of an Abridgment of, and an Index to, the recent Cases, and of an original Statement of the Points established thereby. (Continued from p. 199). POWER OF LEASING. Right of Re-entry not given in the manner required by the Power.]-Where a power of leasing requires that the usual covenants shall be inserted in the lease, with a condition of re-entry "for non-performance of the covenants therein to be contained," and the lease contains a general covenant to repair and keep in repair, but, by the clause of re-entry, the right to re-enter is not, in general terms, in case the lessee shall not repair, but in case the lessee shall not repair" within six calendar months next after notice;" there, the lease is not in compliance with the power. Doe d. Lord Egremont v. Burrough, 6 Adol. & Ell. 229. Comprising in the Lease Lands not within the Power.] -If a lease, under a power of leasing at the accustomed rents and heriots, purports to demise, at one entire rent, lands not within the power, together with the lands which are within the power, the lease is bad as to the lands within the power, although the rent and heriots are in proportion to the rent and heriots previously reserved on all the lands; but, against a party claiming as heir to the lessor, the lease is good as to the lands which are not within the power, and of which the lessor is seised in fee. Doe d. Lord Egremont v. Stephens, 6 Adol. & Ell. 208. Comprising in one Lease Lands before let separately.] -In the case of a lease under a power of demising, for lives or for years determinable on lives, any part of the lands" usually so leased," the joining of lands in the same lease which were usually let separately is not at variance with the power, for the words "usually so leased" apply to the duration of the lease. 1b. Clause as to Waste.]-Where a lease is made under a power which provides that no clause shall be contained in the lease allowing the lessee to commit waste, and the lease contains a stipulation that the lessee shall build a new house, and that he may pull down an outhouse, and use the materials in building the new house; such a stipulation, in the absence of proof that this conversion would diminish the value of the property, does not amount to a clause giving power to the lessee to commit waste, within the meaning of the leasing power. Ib. What are" usual and reasonable Covenants."]-Where a power of leasing provides that the lease shall contain all" usual and reasonable covenants," the general rule is to determine the question of what are usual covenants by reference to the lease in existence at the date of the power. And where a lease of copyholds, which was in existence at the date of a power of leasing those copyholds, or, if that be lost, a lease immediately preceding that lease, contains a stipulation that the lessee shall do suit to a certain mill belonging to the lord of the manor, by grinding his corn there, and the lease made in execution of the power does not contain a similar stipulation, it is void. On the other hand, if a lease of other property, even within the same manor, which was in existence at the date of the power, and was created by the author of the power, does not contain such a stipulation, the lease made in execution of the power will not be avoided by the absence of a similar stipulation, although the leases prior to the last do contain that stipulation; at all events, where they comprise other property besides that which was comprised in the last lease. 1b. RAILWAY SHARES. Right of Legatee of Railway Shares to new Shares, and Liability to pay the Calls.]-Where a testator, possessed of a certain number of railway shares, bequeaths a part of them, and declares that the legacy thereof shall not be deemed specific, so as to be capable of ademption, and that if he should not have a sufficient quantity of such shares to answer such legacy, the deficiency shall be raised out of his estate, for the benefit of the legatee thereof; and, after the death of the testator, new shares are allotted to the executors in respect of the original shares; the legacy of the original shares is specific, except in regard to the two particulars mentioned by the testator; and, therefore, the income of such shares passes with them, and the new shares belong to the legatee of the original shares, but subject to shares. Jacques v. Chambers, 10 Jur. 151—V. C. B. the liability to pay the calls in respect of the original REMOTENESS. Limitation over on Failure of Issue-Force of the word of his personal estate to two persons, equally to be "Survivor."]-Where a testator bequeaths the residue divided between them, in case they are both living at the time of his decease; but, if either of them should happen to die before him, or at any time after, without issue, then he bequeaths the share of the one so dying without issue to the survivor of them: in such case, if one dies in the lifetime of the other, without having had issue, the latter will take the whole; for the word "survivor" is here used in its proper sense, and not in the sense of the word "other," and the limitation over is not void for remoteness. Turner v. Frampton, 10 Jur. 25-V. C. B. See" Perpetuity." SETTLEMENT. sideration, and good against Creditors.]—A deed which Apparently Voluntary, but in reality for valuable Conis apparently voluntary may be shewn by extrinsic evidence to have been made for valuable consideration, and may be supported, as such against creditors. And where a will is invalid as to real estate, and of doubtful validity as to personal estate, for want of being attested, but the heir-at-law and next of kin agree to give up part of the property in order to effectuate the intentions of the testator in favour of a married woman, upon condition that the property so given up shall be settled upon her and her children, and it is so settled accordingly; the settlement is founded on valuable consideration, and, though it be executed shortly before the bankruptcy of the husband, it is good against his creditors. Pott v. Todhunter, 2 Coll. 76. In this case the agreement as to the settlement was made three years before the husband's bankruptcy. SHIP. Right to a Cargo disputed between the Charterers and the Owners of a Ship.1-Where a ship is chartered to take from the factor of the charterers a certain cargo, and the factor fails to procure more than a small proportion of the intended cargo, and leaves the port, and the master of the ship, being also a partowner thereof, after waiting a reasonable time, (a month, for instance), and seeing no probability of obtaining any more from the factor, completes the cargo by his own exertions and at his own expense, the charterers are not entitled to that part of the cargo which was procured by him without the assistance of the factor, and to which the master claims to be entitled on behalf of himself and the other owners of the vessel. Lidgett v. Williams, 4 Hare, 456. SOLICITOR AND CLIENT-See "Debtor and Creditor." SPECIFIC PERFORMANCE. Bond by a Tenant for Life with the Reversion in Fee in himself, conditioned for granting a Lease “subject to such Covenants as were usually inserted in Leases by him."]-Where a tenant for life, with remainder to his sons in tail, with the reversion in fee in himself, has a power of granting leases for ninety-nine years in possession, and he, when all probability of his having issue has ceased, and when he may reasonably consider himself to be virtually tenant in fee simple, gives a bond conditioned for the granting, upon the expiration of a subsisting lease, a fresh lease for ninety-nine years, at a certain rent, "subject to such covenants as were usually inserted in leases by him," and, on the expiration of such subsisting lease, subsequently to his death without issue, the obligee is let into possession of the premises comprised in the bond, and for some years pays the rent specified in the bond; the court will regard the bond as evidence of a binding agreement for a lease on the terms therein mentioned, and will decree a complete specific performance of the agreement so made and partly performed, directing an inquiry as to what are the covenants which were usually inserted in leases granted by the obligor. Butler v. Powis, 2 Coll. 156. STAMP. mediately by devise, though immediately by a deed of settlement. Cheese v. Cheese, 15 Law J. 28-V. C. E. STATUTE OF LIMITATIONS. statute 3 & 4 Will. 4, c. 27, s. 4, has no application to Bar of Portions raisable by means of a Term.]-The a case between the trustee of a term created for raising portions and the cestuis que trust; because the trustee does not hold adversely to the cestuis que trust, but for their benefit. Young v. Lord Waterpark, 10 Jur. 1– L. C. Arrears of an Annuity charged on Land.]-Where an estate is devised to a person beneficially, subject to, and charged with, an annuity, he becomes liable to the annuitant, but does not stand in a fiduciary character within the 25th section of the Statute of Limitations, with respect to him; so that such person is not a trustee (3 & 4 Will. 4, c. 27); and, therefore, the annuitant is only entitled to recover six years' arrears of the annuity, according to the 42nd section of that act. Francis v. Grover, 15 Law J. 99-V. C. W. been a lapse of more than twenty years from the expiration of the lease, without any intermediate acknowfedgment of the right of the lords by the lessee or his representatives. Dean and Chapter of Wells v. Doddington, 2 Coll. 73. See "Partnership." STATUTE OF USES-See " Married Women." Recovery of Court-rolls.]-Where an ecclesiastical corporation, lords of a manor, grant a lease thereof for lives, and deposit the court-rolls with the lessee, and they are not delivered up after the expiration of the lease; the Statute of Limitations may be pleaded to a Stamp on a Bond given to a Banking Company.]-bill for the discovery and delivery of them, if there has Where a bond is conditioned for the payment to a banking company of all such sums, not exceeding in the whole a certain amount, which from time to time shall be owing from the obligor to the company on the balance of his account current, together with such interest and commission as shall be due to the company; an ad-valorem stamp on the amount which is fixed as the limit to the advances to be secured is sufficient. For a bond so conditioned does not come within the clause in the stat. 55 Geo. 3, c. 184, sched., part 1, tit. "Bond," which imposes a stamp of 257. on all bonds for the repayment of money lent, advanced, or paid, or Necessity of surviving a prior taker.]-Where a teswhich may become due on an account current, where tator devises real estate upon trust for a person for life, the total amount of the money secured is uncertain and and, after her decease, upon trust to sell, and pay the without limit; for, interest and commission do not proceeds among all his nephews and nieces, and the surcome within the words "repayment of money lent, ad-vivors and survivor of them, share and share alike, to vanced, or paid, or due on an account current;" and be paid them respectively as they attain the age of the total amount of the principal is not without twenty-one years or day of marriage; the property is limit." Frith v. Rotherham, 10 Jur. 208-Exch. divisible among those only who survive the tenant for By this case Dickson v. Cass (1 B. & Adol. 343) is life. Williams v. Tartt, 2 Coll. 85. overruled. See "Legacies." 66 Stamp on a Transfer of a Mortgage for a Term, with a Conveyance of the Fee, as a new Security.]-Where, on a transfer of a mortgage for a term, and a further advance, the reversion in fee is conveyed to the transferee of the mortgage, an ad-valorem stamp in respect of the further advance, and stamps for progressive duty, are not sufficient; for the conveyance of the fee creates a new security, in respect of which a deed stamp at the least is necessary. Brown v. Pegg, 6 Adol. & Ell. 1. STATUTE 11 GEO. 4 & 1 WILL. 4, c. 47, s. 12. Conveyance in Fee by a Tenant for Life under a Decree for Sale for Payment of Debts.]—Where a testator devises real estate to trustees, upon trust to convey it, subject to his debts, to another person, on marriage, in strict settlement, and they convey it accordingly, such person is within the statute 11 Geo. 4 & 1 Will. 4, c. 47, s. 12, which enacts, that, where lands devised shall be liable to the payment of the debts of the testator, and "by such devise shall be vested in any person for life or other limited interest," with any gift over, which may not be vested, or may be vested in some person from whom a conveyance cannot be obtained, the Court of Chancery may direct such person to convey the whole interest to a purchaser; for, in the case supposed, the lands are vested in the prior taker SURVIVORSHIP. TENANCY BY THE CURTESY of an equitable Interest not precluded by a Disseisin.]— The possession of a cestui que trust under a settlement is the possession of the trustee, and gives the trustee a seisin of the estate, which is not interrupted by the death of the cestui que trust, but on that event immediately enures to give an equitable seisin to the person next entitled to the equitable freehold interest; and if such person is a married woman, and such equitable interest is in fee, her husband is entitled to an estate by the curtesy, even though the equitable seisin is almost immediately afterwards taken away by the adverse entry and possession of another person. Parker v. Carter, 4 Hare, 400. TENANT FOR LIFE. Right to get Stone out of Quarries.]—Where an estate is devised in strict settlement, with liberty to each tenant for life in succession to get stone for buildings and repairs upon the premises, but for no other purpose whatsoever; and, in another part of the will, the tes tator recites that he had restrained, and he did thereby intend to restrain, each tenant for life from getting any stone upon the premises, or any part thereof, save for buildings and repairs; the former clause, |