which were in their own works, could be published by the defendants; nevertheless, the work is published with some of those cases; and having a distinct opinion in their own mind of what the law was, they never interfered to quarrel with these cases being published. But, if these cases are to be considered, as Mr. Knight Bruce says, every one of them as a separate and distinct work, it seems to me very singular, that these plaintiffs, knowing they had a distinct copyright in each of these three cases or reports, do not advert to the fact that the defendants were publishing their works. I do not quite accede to that view, because I cannot but suppose that the copyright in these several Term Reports and other things so purchased from time to time, and from volume to volume, and so on, was purchased in this manner, that volumes, and not individual cases, may be the subject of copyright-that is, the copyright is not formed in the way of assigning the copyright first of all in one case, and then in another. I do not think that material, because the substance of the case comes to this, that when there were three cases published, they did not choose to interfere; but just observe how that is three cases are published in the first volume, which are taken promiscuously out of eight volumes; altogether, the number of volumes is fifty-two, and, in the second volume, there are twenty-four cases published out of forty-four volumes. Is there much substantial difference between the two instances of publication? There is some arithmetical difference with respect to the quantity; but, with respect to anything that actually takes place in the affairs of men, is there any substantial difference between taking twenty-four cases promiscuously out of the forty-four volumes, and taking three or four cases out of the eight volumes? The truth is, the thing is done in so rare and picked a manner, that it is impossible to believe any injury could arise to the plaintiffs; and the plaintiffs themselves have shewn, that they were sensible of no injury with respect to the three cases taken out of the eight volumes; and, it appears to me, they might just as well have continued that very feeling, and have imagined that the twentyfour cases taken out of the forty-four

volumes, have also not produced any injury to them. I do not understand it is actually sworn that any injury has been produced.

[Mr. Willcock. It is not sworn that any injury has been produced.]

And rightly so in my mind, because nobody could believe any injury was produced, nor can any human being believe it ever will be. The consequence of this proceeding, I think therefore is, that the plaintiffs, by their conduct, have induced Mr. Smith to suppose, that if he did publish the three first cases without animadversion from the plaintiffs, he might also lawfully publish the other twenty-four cases in the way he actually has done; and this Court, in administering its relief, always has regard to what has been the conduct of the party who seeks the relief; and if there has been that thing which is technically known in this court by the term of lying by, and if the conduct of the plaintiffs has been such as reasonably to induce the defendant to imagine that he might persevere in that course in which he had first begun, this Court will say to the party, who complains after that course has been adopted, that he comes too late; and my opinion is, on the substance of the case, and on the conduct of the plaintiffs, that they are not entitled to the injunction they ask. I am perfectly aware, however, that a different view may be taken of my opinion, and of the facts of the case, and that it is quite right, if there really has been that damnum ad injuriam which the plaintiffs represent, that they should have liberty, notwithstanding that they are plaintiffs in this court, to bring such action as they may be advised. I shall, therefore, not grant an injunction, nor shall I say anything about the costs, but shall leave the plaintiffs to bring such action as they may be advised, and give the parties liberty to apply.

The plaintiffs having appealed from the order of the Vice Chancellor, the case came before the Lord Chancellor on the 20th of June 1838, when nearly the same line of argument was adopted on both sides that was used in the court below.

Mr. Jacobs and Mr. J. Russell, for the appellants.

Mr. Wigram, Mr. Willcock, and Mr. Warren, contrà.

This

The LORD CHANCELLOR.-I have looked through the affidavits in this case, and the authorities which have been referred to, and I am very clearly of opinion, that the Vice Chancellor came to the right conclusion, and that his order ought to be supported; and I have come to that conclusion upon grounds which make it quite unnecessary for me to go into the question of law, which has been discussed. Court does not exercise its jurisdiction for the purpose of acting upon legal right, but interposes for the purpose of better enforcing legal rights, or for the purpose of preventing mischief, until the time shall arrive in which those legal rights may be ascertained. In all questions of injunction in aid of legal rights, whether it be of copyright, whether it be of patent, or of various other descriptions of legal rights, which come indirectly before the consideration of this Court, the office of the Court is consequential upon the legal right, and it generally happens, that the only question the Court has to consider is, whether the case be so clear and so free from objection upon the grounds of equitable considerations, that the Court ought to interfere by way of injunction, without a previous trial at law, or whether the Court thinks it expedient, under the circumstances of each case, to abstain from exercising its jurisdiction until the legal title be established. That distinction depends on a great variety of circumstances; and it is utterly impossible to lay down any general rule, by which the discretion of the Court ought, in all cases, to be regulated. In this case, I find the publication complained of to be of a character, which, whether it be or be not an infringement of the copyright of the plaintiffs, is a course of proceeding which has been pretty largely permitted, and pretty generally adopted. In many instances stated during the argument, and in several referred to, where gentlemen at the bar have been desirous of publishing upon particular subjects, they have collected the cases upon those particular subjects, and have taken those cases, generally speaking, verbatim from the reports which are covered by legal rights. No instance has been offered to me, in which those entitled to the copyright have interfered: no judgment, therefore, has been pro

nounced on that subject. I am not stating that they are not entitled to interfereI am not stating whether the right is with the owner of the copyright to prevent such publications, or whether that use of a published report be or be not to be permitted. That is a matter which is purely a question of legal right, upon which I find no occasion at present to come to any adjudication; but it is very important, when I have to consider, whether I shall exercise the equitable jurisdiction before the legal right has been established, to find a course has been adopted pretty generally, and for many years, such as I have stated, and more particularly when my attention is drawn to this fact, that these plaintiffs have themselves acquiesced in a similar course of proceeding, and that in a book of which I have a copy before me-viz. Mr. Chitty On Bills of Exchange, there is a very large collection of reports,-whether they are all printed verbatim, is not very material,—but certainly many of them are from the published Reports of which the plaintiffs have the legal right.-[Here his Lordship said, the fact of the permission of the plaintiffs given to Mr. Chitty, was very material in the consideration, whether he ought to exercise a jurisdiction by injunction in favour of the plaintiffs, and observed, that there was, in the dealing with the case, that species of conduct which would deprive the plaintiffs of, at least, the interposition of the Court. His Lordship then adverted to the facts of the case of Rundell v. Murray (5), and read the concluding passage of Lord Eldon's judgment therein (p. 316), and after stating that he should assume the plaintiffs entitled to the copyright, proceeded to a lengthened consideration of the several affidavits, observing that the statement in the preface to the first volume, gave him a very safe guide, on which of the statements in the affidavits it was right to rely.]-His Lordship then continued as follows:-When I look at this work, I am not sufficiently acquainted with it to give an opinion upon the merits of it, but I have no doubt that the opinion expressed of it by others, who have had more opportunity of examining it, is entirely deserved: but I am looking at it now, not

(5) 1 Jac. 311.

for the purpose of ascertaining its merit as a law book, but for the purpose of seeing that it is a work of extreme labour; and I find, that the principle of it is to take the marginal note, sometimes altered, sometimes taken from the Reports, as laying down the principle of law, then working out that principle in this way-first of all, by stating a leading case, as it is called, that which is selected as enunciating the principle, and then, by very voluminous and obviously very laborious notes, working out the principle, and shewing how it is to be founded and established on a variety of cases, which are to be found in the books. It is clear therefore, from the nature of the work, that it was one of great labour; this was evident, from the publication of the first volume; and I find, therefore, those who are now asserting a title to this copyright, were informed before the month of March 1837, of Mr. Smith's intention so to deal with the existing reports. I find the first volume when published, announcing an intention of going on with the same plan, which necessarily would run over the period to which the copyrights of the plaintiffs relate; that no remonstrance is made to him after they saw the nature of his book, none is alleged, but the plaintiffs permit him to go on in the execution of this laborious work, until the period at which the first part of the second volume is published. In the meantime, a communication takes place with Mr. Maxwell, who is interested in the publication of this work; no objection is made to him, who has as much right to the consideration of the Court, in protecting his property, as Mr. Smith has. There are proposals in which Mr. Maxwell deals with this property, and wishing to make it a subject of arrangement with the plaintiffs. I do not find this led to any caution, or that any interposition, or any objection was made on the part of the plaintiffs to the course which Mr. Smith had pursued as to part, and which they must have been fully aware he intended to pursue further.

Assuming, then, for the purpose of exercising the equitable jurisdiction which I am called upon to exercise, that the plaintiffs had a legal right, I say, whatever legal rights they may have, the circumstances of the case are such as to make it the duty of the

court of equity to hold its hand, and to abstain from exercising the equitable jurisdiction, at all events, until (I will not say what course the Court would take if that legal title was established at law) the plaintiffs shall come here with the legal title established by a judgment at law; and in doing that, I am doing only that which Lord Eldon did in Rundell v. Murray, which appears to me not only as applicable to the case of copyright, but very generally exercised with reference to the question of patents, where, either with regard to the conduct of the parties, or any doubt as to the validity of the patent claimed, the Court always exercised its discretion, whether it shall interfere by injunction prior to the establishment of the legal right. I am quite clear the Vice Chancellor was correct in the view he took of this case; and it is not for a court of equity to interfere by injunction on this question; at all events in the present stage of the cause; therefore I must refuse this motion with costs.

Before I dismiss this subject, I am only desirous of saying a few words on the subject of the case, which I see relied upon very much in the Vice Chancellor's judgment, and of which (it is not published) it is quite obvious, the Vice Chancellor had not received any correct information. I mean the case of Bramwell v. Halcomb, which was lately before me. It is supposed, from the representations the Vice Chancellor made of that case, that I decided on the calculation of quantity on the one side or the other. In the first place, I never decided that case at all. That is the first observation I have to make; because it went off by an arrangement, and Mr. Halcomb, who was the party defendant and counsel in the case, seeing the view which I took of the case, proposed that the injunction should be dissolved, and in the event of the legal right being established, that the particular inquiry, which could only have been directed by the consent of the parties, should be directed for the purpose of indemnifying Mr. Bramwell against any loss he might have sustained-upon this the injunction was dissolved. It then appeared that there had been an assignment of the copyright, which brought other parties into the

field. Of course, therefore, nothing could be done finally to dispose of the case; it stood over, and it was never brought forward again. I understand that it fell to the ground on account of the death of Mr. Bramwell in the meantime. I find this passage in the note that has been furnished to me of that case: "Then let the case stand until Saturday, as I take that view of the case." That arose from a suggestion of Mr. Stuart, which says, "Mr. Stuart-If the Master, in estimating the intermediate profits, gives us not only our share, but also compensation for the loss of the sale of our book, by reason of the sale of the defendant's book, that would be fair." Then I say, "If you agree that the injunction should be dissolved, and that the defendant should sell his book, and that if you establish your right, it should be referred to the Master to ascertain what damage you have sustained, that will be a fair arrangement." Then Mr. Stuart said, "Mr. Halcomb has sold his copyright to some other persons, who were also made defendants to the same record." Then I

say, "Let the case stand until Saturday." Then on the Saturday, I should presume it is on the Saturday, I say, "As I take this view of the case," that is to say, the equitable arrangement which the parties proposed, "I abstain from saying anything as to the law." But in what I did say, which I suppose has been represented to the Vice Chancellor, so far from considering the question to turn on the mere measure of the quantity on the one side or the other, all that I find that I said about quantity is this, "When it comes to be a question of quantity," that is with reference to what Lord Eldon stated in some other case about quantity, "when it comes to be a question of quantity, it must be very vague. 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 always looked to. It is useless to refer to any particular cases as to quantity." Now, there can hardly be anything less calculated to lay down a rule which would look at quantity only. That is all that appears to have been said on the subject of quantity. Then, in another NEW SERIES, VII.-CHANC.

part of the case, I find, at the conclusion of the Solicitor General's reply, I said this, “I am already of opinion, that this is a case in which I ought not to exercise the jurisdiction of this Court without giving the parties an opportunity of trying the question at law, for where any doubt exists as to the rights of the parties, if the Court were to exercise jurisdiction without giving an opportunity of trial at law, there would be different law in this court, and in the courts of law, upon the subject." The proceeding here is merely for the purpose of making effectual the legal rights, as Lord Eldon says in Wilkins v. Aikin (6). Where any doubt exists as to the legal right, it is very proper to be tried. The only question is, whether, in the meantime, the injunction is to be continued, or whether it is to be dissolved, on the undertaking which the defendant has offered of keeping an account. It is obvious, that it is the interest of both parties that the injunction should be dissolved; for if, in consequence of piracy, the defendant is, in fact, selling the plaintiffs' work, the plaintiffs will have the profits of the publication; but if, on the contrary, no piracy has been committed, a very great hardship has been inflicted on the defendant, and on that supposition he has already experienced a severe hardship, because the injunction has prevented the sale of his book during the season. If Mr. Stuart thinks it proper to press the continuance of the injunction, I must look through the passages in the respective books. Then Mr. Stuart says, "We should not merely have the profits of the sale." It goes to that which came to an ultimate arrangement. There was no judgment at all on the question of law; there was nothing, therefore, to lay down any rule that quantity ought to be looked at, but it is quite the reverse; and the ground which I took, and the reason for the course I adopted, is exactly that for the course which I adopt now, namely, if the extreme hardship of the case be a matter of doubt, or if the parties have, by their conduct, encouraged or permitted the proceeding which is now complained of, the extreme hardship there, is upon

(6) 17 Ves. 422.

21

the defendant, as compared with any hardship the plaintiffs may sustain, if the point of law afterwards turns out to be in his favour.

L. C. Ex parte COLEGRAVE, AND IN May 24, 26. re THE ACT 4 GEO. 4. c. 76. Statute, Construction of— Consent to Marriage.

The Court has no power, under the act 4 Geo. 4. c. 76, to consent to the marriage of an infant, on the ground of the father refusing his consent from undue motives.

This was a petition by a female infant aged eighteen, stating that her father unreasonably, and from undue motives, refused his consent to a marriage which she was desirous of contracting, and praying that the Lord Chancellor might make a judicial declaration that the marriage was proper.

The application was founded upon the 17th section of the act above mentioned (1). The particular circumstances of this case were not gone into, it being arranged that counsel should first address themselves to the question, whether the act dispensed

(1) Whereby it was enacted, "That in case the father or fathers of the parties to be married, or of one of them, so under age as aforesaid, shall be non compos mentis, or the guardian or guardians, mother or mothers, or any of them whose consent is made necessary, as aforesaid, to the marriage of such party or parties, shall be non compos mentis, or in parts beyond the seas, or shall unreasonably or from undue motives refuse or withhold his, her, or their consent to a proper marriage, then it shall and may be lawful for any person desirous of marrying in any of the before-mentioned cases, to apply by petition to the Lord Chancellor, Lord Keeper or Lords Commissioners of the Great Seal of Great Britain for the time being, Master of the Rolls or Vice Chancellor of England, who is and are respectively hereby empowered to proceed upon such petition in a summary way, and in case the marriage proposed shall, upon examination, appear to be proper, the said Lord Chancellor, Lord Keeper, or Lords Commissioners of the Great S-al for the time being, Master of the Rolls or Vice Chancellor, shall judicially declare the same to be so; and such judicial declaration shall be deemed and taken to be as good and effectual, to all intents and purposes, as if the father, guardian or guardians, or mother of the person so petitioning, had consented to such marriage."

with the consent of the father in any case, except that of his being non compos mentis.

Mr. Wigram and Mr. Stuart, in support of the petition.-In an unreported case of Ex parte Cooper, V.C., 19th of August 1834, his Honour gave a judicial consent to an infant's marriage, on the ground of the father's being abroad. That is a direct authority in favour of this application, as it is impossible upon any construction of the act, to hold, that the event of unduly withholding consent, is not governed by the same words, as the event of a party whose consent was thereby made necessary, being in parts beyond seas.

[The Solicitor General, (who appeared for the lady's father)-I think the other side ought to call your Lordship's attention to the 26 Geo. 2 (2), which being made in pari materiá, makes it quite clear, that the being non compos mentis was the only event provided for in the case of a father.]

That does not vary the construction to be put upon the new act.

[The LORD CHANCELLOR.-The first sentence is complete in itself; and why should the sentence, applicable by the act to the guardian, &c., be referred to that former complete sentence as an antecedent?]

These questions and difficulties always arise upon an ill-worded statute. The alteration of the words of the old statute clearly shews an intention to supply, by this new statute, a judicial substitute for the consent of the father, in all those events in which such judicial consent was formerly held expedient in lieu of that of the mother or guardian. Looking at the general purview of this act, it would bejan absurd construction to say, that it did not intend to apply a remedy to cases in which there might be an improper refusal on the part of the father. That is precisely the

(2) The 12th section of the act, 26 Geo. 2. c. 33, commences in the words following:-"And whereas it may happen that the guardian or guardians, mother or mothers of the parties to be married, or one of them, so under age, as aforesaid, may be non compos mentis, or may be in parts beyond the seas, or may be induced unreasonably, and by undue motives, to abuse the trust reposed in him, her, or them, by refusing or withholding his, her, or their consent to a proper marriage: be it therefore enacted," &c.