is, in a legal sense, not a written agreement. I must therefore, intend, that the written agreement mentioned in the bill, possessed the requisites of a valid written. agreement. In favour of the demurrer, I can intend nothing; but I can intend in favour of the bill. The general allegations of the bill include every thing comprehended within the generality of the expressions used by it; but the demurrer is exclusive. The plaintiff is not bound to show upon the bill, that he has complied with the Statute of Frauds; but the party who relies upon that statute as a defence, is bound to show, that it has not been complied with; and if that defence is made by way of demurrer, he must make out from the statements of the bill, that the forms, prescribed by that act, have not been observed. Here the bill contains an allegation of an agreement in writing; and I cannot intend that the agreement was not signed, even though there is no express averment of that circumstance.

As to the other point which has been argued whether advantage ought to be taken of the Statute of Frauds, by plea or by demurrer-it seems to me, that a demurrer will be a good form of defence, whenever it appears negatively on the face of the bill, that the requisitions of the statute have not been complied with.

A testator gives the residue of his estate to his executors, upon trust to invest the same on securities, and pay the interest to A. during his life, with certain limitations over: the executors, within the year after the testator's death, receive a sum of money as dividends on part of the testator's estate, which was invested at his death; and this sum was not wanted for payment of debts or legacies:-Held, that this sum did not constitute part of the residue, but belonged to the tenant for life.

Robert Hewit, by his will, bearing date 13th of February 1810, after giving the several pecuniary and specific legacies therein set forth, gave and bequeathed the clear residue of his estate and effects unto his executors Thomas Morris, George

Wren le Grand, James Hartlet, and John Munton, upon trust to convert the same into money, and to invest the same in the purchase of government or other public stocks, funds, or securities, at interest. The interest and dividends of one moiety of these stocks, funds, and securities, were to be paid to William Hewitt, the brother of the testator, during his life; and after his death, an annuity of 60l. out of the said interest and dividends, was to be paid to the widow of William Hewitt during her life; and the residue of such interest and dividends, and, ultimately, the capital of the said moiety, to the child or children of William Hewitt; and, for default of issue of William Hewitt, the said interest and dividends, subject to the said annuity, were to be applied towards the maintenance and education of all and every the child or children of John Hewitt, as was thereinafter directed concerning the shares of such children of and in the other moiety of the said stocks, funds, and securities. In case of the death of William Hewitt without

issue, and of his widow, the said moiety was upon trust to be transferred unto all and every the child and children of John Hewitt. As to the remaining moiety, the executors were to pay the interest and dividends thereof unto the testator's brother, John Hewitt, during his life, and after his death, they were to hold it upon certain trusts for his wife and children.

The testator died on the 24th of September 1820. The suit was instituted by William Hewitt, John Hewitt, and the other persons interested under the will, against the executors.

This cause was heard on the 12th of August 1822; when, among other things, it was decreed, that it should be referred to Master Cross, to take the usual accounts of the testator's debts, funeral and testamentary expenses, legacies and annuities; and he was to be at liberty to make a separate report thereof.

The Master, by his report, dated the 25th of February 1823, found that all the debts and funeral and testamentary expenses of the testator were paid,—that John Hewitt was entitled, during his life, to one moiety of the interest and dividends of the clear residue,-that William Hewitt died on the 11th of February 1823, without

ever having had any children,—and that he was entitled to the other moiety of the interest and dividends of the residue up to that day.

A petition was presented by Sarah Hewitt, widow of William, and by John Hewitt. It alleged, that William had, by his will, given all his personal estate to Sarah Hewitt, whom he had appointed his sole executrix, and that the trustees and executors had in their hands the sum of 3741. 15s., on account of the interest on the testator's estate, accrued due within the year next immediately after the testator's decease. The petitioners submitted to the court, that, inasmuch as that sum consisted of interest or dividends accrued due on the stocks or funds in which the testator's property stood invested at the time of his decease, and did not arise from any investment of his estate, subsequently made by his executors, the tenants for life were entitled to have it paid to them. The prayer was, that one moiety of the sum might be paid to John Hewitt, and the other moiety to Sarah, as the representative of William Hewitt.

The legacies had all been paid.

Mr. Sugden appeared in support of the petition.

Mr. Hart, contrà.

The authorities cited, were the unreported case of Angerstein v. Martin, Stolt v. Hollingworth, Taylor v. Hibbert.†

The Lord Chancellor held, that, upon this will, the interest and dividends accruing upon the testator's estate, during the first year after his decease, were not to be added to the residuary fund, but were to go to the tenants for life.

The order was made as prayed.

ANGERSTEIN V. MARTIN.

A testator devises real estates to trustees upon trust for A. during his life, with remainder over; and he gives the residue of his personal estate to the same trustees, upon trust, with all convenient speed, to purchase lands to be conveyed to the same uses as the devised estates, and until the

* 3 Mad. 161.

† 1 Jac. and Walk. 306.

purchases be made, upon trust, to lay out the money on securities, and pay the dividends to those, who (if lands had been bought) would have been entitled to the rents: Held, that the tenant for life is entitled to the dividends accruing upon the clear vesidue of the personal estate, within the year after the testator's death.

This case, which was much relied upon in that of Hewitt v. Morris, was decided by the Lord Chancellor in the sittings after Trinity Term,1823. It arose under the following circumstances:

John Julius Angerstein devised his freehold tenements and hereditaments to trustees, upon trust for John Angerstein, during his life, with remainders over, which were different with respect to different portions of the estates. Then, after giving various legacies, he bequeathed all the residue of his personal estate to the same trustees, upon trust, to sell and collect the same, and to stand possessed of the monies, upon trust, as to four-tenth parts thereof, with all convenient speed to lay out the same in the purchase of lands, which were to be conveyed to the uses declared concerning certain of the freehold estates. And it was provided, that, until such purchases were made, it should be lawful for the trustees to place out the monies at interest, upon government or other securities, and that the annual proceeds of such securities should be paid to such person or persons, and be applied to such uses as the rents of the lands to be purchased would be paid or applied to, if the purchases were actually effected.

Similar directions were given with respect to other portions of the residuary fund; with this variation, that the lands to be purchased therewith were to be settled to the same uses as certain other of the testator's real estates.

The testator, at the time of his death, in January 1823, had large sums of money invested on securities, bearing interest, and particularly in the British stocks, and also in foreign funds. After all the debts and legacies were paid, a very large residue remained, which produced, in the year immediately following the testator's death, a considerable sum in the shape of interest.

The bill was filed by the tenant for life, against the trustees and executors, and

those interested in remainder; praying, that the plaintiff might be declared entitled to the yearly proceeds of the clear residue of the personal estate, from the time of the testator's death.

The facts were admitted by the answers of the executors; and the single question was, whether the interest and dividends of the residuary fund, accruing within the year next after the testator's death, were to be added to that fund, or were to go to the tenant for life?

Mr. Hart argued the case for the plaintiff;

Mr. Pepys, for the defendants, the remainder-men.

For the plaintiffs it was contended, that the right of the legatee for life of a residuary fund to the interest which accrued upon that fund during the first year after the testator's death, was a mere question as to the intention of the testator; and with respect to that intention, there could not, in a case like the present, be any doubt. Suppose the tenant for life to die before a full year from the death of the testator had elapsed, he would, according to the construction contended for on the other side, take no benefit under the gift of the perso nal estate. The analogy drawn from pecuniary legacies was altogether inapplicable. The trustees might have purchased lands the day after the testator's death: if such purchase were made, would not the tenant for life be entitled to the rents? And if entitled to the rents, must he not in the mean time be entitled to the dividends and interest monies of those funds, the annual proceeds of which were directed to be paid and applied in the same manner as the rents of the lands to be purchased?

and

Mr. Hart further denied the authority of the cases of Taylor v. Hibbert, Stott v. Hollingworth; † and argued that the point now before the court was not at all affected by the determination in Sitwell v. Barnard.

For the defendants, it was contended, that the rule was settled by the cases of Stott v. Hollingworth, and Taylor v. Hibbert; and that the authority of these cases was confirmed by the principles on which

*) 1 Jac. & Walker, 310. (t) 3 Mad. 161.

6 Vesey,

520.

the court proceeded in Sitwell v. Bernard, Bertie Entwistle v. Markland, and Stuart v. Bruere.§

The Lord Chancellor was clearly of opinion, that there was no rule upon the subject, which, hitherto at least, could be considered as fixed. It was likewise evident, that cases, in which there were directions for accumulation, could have no application here; and of that kind was the case of Sitwell v. Bernard, and some others which had been cited. Here the interest of the tenant for life, in the real estates, commenced from the testator's death; and if other lands were purchased, he was to have the rents of those, not from the end of the year, but from the date of that purchase. Then there being a direction, that, till lands were purchased, the yearly proceeds of the clear fund should go as the rents of the lands would go, his Lordship was of opinion, that he could not do otherwise than hold, that the tenant for life was in this case entitled to those yearly proceeds from the death of the testator.

}

1824. Jan. 19. S

ANONYMOUS.

Where two married women are defendants, and they are to answer separately from their husbands, they cannot be included in one order, but there must be two separate orders.

Mr. Wakefield moved, that two married women should answer separately from their husbands. The husband of the one was out of the jurisdiction of the court; the husband of the other was a bankrupt.

It was wished, that there should be one order only for both defendants; but it was doubted whether this would be regular.

The Vice-Chancellor was of opinion, that the two defendants could not be included in one order, and that it was necessary that there should be two orders.

suit is abated, and the plaintiff does not complain of the irregularity, the Court will not, on the application of the defendant, permit the answer to be taken off the file, except upon his undertaking to put in an answer in the same words.

The answer had been taken without oath; and left in the hands of the clerk in court, in order to be filed. He having omitted to file it, an abatement in the mean time took place; and it was not till the 26th of November, many months after the suit had abated, that the answer was filed. The defendant now moved, that the answer should be taken off the file.

Mr. Heald, and Mr. Blackburne, were for the motion.

Their argument was, that the defendant might have said, in the month of November, this answer shall not go upon the file, -and no person could have said, that it should go upon the file; that it had been filed without any direction on his part, after the abatement of the suit; that, therefore, he was was still entitled to have it withdrawn; and that, during an abatement, it was irregular to file an answer.

Vice-Chancellor.-The defendant says, that, after an abatement, an answer cannot be received: what authority is there for holding that doctrine? The plaintiff indeed may complain of an answer put in after abatement; because, being irregularly filed, he could not maintain an indictment for perjury upon it; and even that consideration does not apply here; because this answer was taken without oath. what right has the defendant to complain of his own answer being filed irregularly? What prejudice does he sustain? In what respect is his situation different from what it would have been, if the answer had been filed before the abatement of the suit.?

But

The utmost which I can do, is to permit the defendant to take his answer off the file, upon his undertaking to put in an answer in the same words. If he has any reasons to submit, why he should not be bound by his former answer, the court will enter into the consideration of them, upon his making a special case for relief.

If a plaintiff who has obtained an injunction, misrepresents to the public what has been done by the Court, and the defendant, to correct that misrepresentation, does an act, which, in strictness, is a breach of the injunction, the Court will not entertain any complaint against him on the part of the plaintiff, for such a breach.

If A.sells a work to B., and covenants not to do any thing which may be detrimental to the sale or circulation of that work, and if afterwards A., and a partner, publish a rival work on the same subject, the partner will be restrained as well as A.

If A., having entered into such a covenant with B., sells the materials of a rival work to C., who concludes his agreement, and pays his money without any notice of the covenant, an injunction, on the ground of that covenant, cannot be maintained against C.

If an injunction has been granted against a work, which is proposed to be published in successive numbers, on the ground of piracy in the published numbers, the injunction will not be modified, so as to permit the publication of the future numbers, while the question of piracy as to the others, remains undetermined.

If A. sells to B. the copyright of a work, containing letter-press and plates, which are to be found in prior works, and if A. subsequently furnishes the same letter-press and similar plates to C. for the purposes of a rival work, C.'s publication will not, in respect of such letter-press and plates, be held to be a piracy upon B.'s work.

The person who forms the plan of a work, to be composed by the labours of va rious persons, who employs different writers to contribute to it, and who pays them for their contributions, is the author and proprietor of such a work, within the statute of

Anne.

In 1811, Mr. Peter Nicholson, being engaged in writing a work, called the Architectural Dictionary, entered into an agreement with Mr. Barfield, for the publication of it. By that agreement, Barfield was to bear all the expenses of publication. Nicholson was to have a certain number of co

pies, and half the profits; the copyright was to belong to them in moieties. The work was not completed till 1819.

By indenture, dated 3d of March 1821, Nicholson, in consideration of 250l., assigned all his copyright in the Architectural Dictionary, and the whole of the plates, letter-press impressions, and other things thereto belonging, and all his right, title, and interest thereto, unto Barfield, his executors, administrators, and assigns. This indenture contained the following covenantthat he, Peter Nicholson, his executors or administrators, should not write or publish, or cause, or procure to be written or published, any abridgment of the said work, or of any part thereof, or any other kind of publication which might prove prejudicial or detrimental to the sale of the Architectural Dictionary, nor would, in any manner, directly or indirectly, impede the circulation or publication thereof.

Barfield, the plaintiff, by his bill, alleged, that Nicholson, in violation of his agreement, prepared another work for the press, called the Practical Builder, which began to be published by Kelly, in weekly numbers, in July 1823-that this second work bore the name of Peter Nicholson, as the author of it-that Nicholson and Kelly were joint owners and proprietors of that work-that much of the letter-press, and many of the plates in the Practical Builder, were taken from the Architectural Dictionary, so that the former was, in truth, a piracy from the latter; and that the publication of the Practical Builder being very injurious to the sale of the Architectural Dictionary, was a violation of the covenant by which Nicholson had bound himself.

The bill prayed an account of the produce of the sale of the Practical Builder, and an injunction to restrain Nicholson and Kelly from publishing, printing, or selling that work, or any other work which might prove prejudicial or detrimental to the sale of the Architectural Dictionary, and also from impeding in any manner, directly, or indirectly, the circulation or publication of that book.

The bill was filed on the 10th of Nov. 1823; and a motion for an injunction was immediately made, and supported by affidavits.

Mr. Heald and Mr. Roots, were for the motion.

Mr. Thomas Parker opposed it both for Nicholson and for Kelly.

The Vice Chancellor granted the injunction. Upon the case, as it appeared on the affidavits, he was inclined to think the Practical Builder a piracy from the Architectural Dictionary. But he did not deem it necessary to enter at length into that question; as the covenant in the deed of 1819, entitled the plaintiff to the injunction which he prayed. That covenant doubtedly bound Nicholson; and the court would not permit Kelly, as the partner of Nicholson, to do with the latter, and partly for his profit, that which Nicholson himself would be restrained from doing.

un

Kelly put in his answer on the 17th of December, and afterwards a further answer, in which he insisted, that the Practical Builder was in no respect a piracy from the Architectural Dictionary. He, himself, as he stated, planned the work in the beginning of 1821; and on the 10th of October in that year, entered into a written agreement with Nicholson, by which the latter, for a stipulated price, contracted to supply a certain quantity of letter-press, and a certain number of plates. Nicholson, however, had no share in the property of the work, and composed or compiled only some parts of it; for though it bore the name of Peter Nicholson, yet other scientific persons, and among them, his son M. A. Nicholson, were employed to furnish matter for it. The plan of it, too, was totally different from that of the Architectural Dictionary; and though there might be considerable similarity between some portions of it and articles in the Architectural Dictionary, yet such similarity arose from the nature of the subject, and not from the latter publication copying the former. The whole of the matter, both letter-press and plates, had been paid for by Kelly, as original matter. Particular portions of the work had been specified in the affidavits, on which the injunction was originally obtained, as establishing the charge of piracy. These, it was affirmed, had been taken from books long anterior in