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In another case, the Master of the Rolls declined by way of injunction to give the effect of a specific performance in a case where that relief could not, according to equitable principles, be given, as the breach of contract could be compensated in damages. (Lord' Abinger v. Ashton, Dec. 12). “ The court,” said his Honour, “has no jurisdiction to compel specific performance of a covenant to repair, and, therefore, cannot restrain a breach of it by injunction.” In a court of law, an injunction could now be obtained in such a case, if there was “a continuance of an unlawful and injurious act.”
The Master of the Rolls, like all the other Equity judges, had more than one sewage nuisance case, and in granting an injunction against a Local Board of Health (?) for polluting a stream by sewage, observed that “there is a vis inertiæ about Local Boards which requires a great deal of pressure to overcome.” (The Attorney-General v. The Aylesbury Local Board of Health, Dec. 17.)
The Vice-Chancellor had some very important cases to deal with. In a case in which it was necessary to take evidence in France, the Vice-Chancellor consented to request the Court of First Instance there to accept a commission to examine the witnesses on behalf of this court. (The Imperial Land Company v. Maslerman, Dec. 13.) This was confirmed by the Full Court of Appeal. It was the first time such a course had been taken in this country, and it was required, because there were unwilling witnesses, and an examiner would have no power to compel their attendance. The precedent is one of great importance, and, if followed, it will have salutary results. In a suit instituted as long ago as March, 1868, on behalf of infants, to set aside a contract entered into under the sanction of the court in 1868, for the purchase of an estate, on the ground of alleged fraud in the valuation, the parties were cross-examined in court upon their respective affidavits, and the Vice-Chancellor held upon the evidence that the fraud was not made out. (De Witte Denne, Dec. 10.) In one of the many cases which arose out
of the winding-up of the Hindustan and China Bank, a purchaser of shares, who had given in the name of an infant as the transferee, was held liable to the seller as the real owner and purchaser, and liable to indemnify him. (Maynard v. Eaton, Dec. 16. An action arose out of the same transaction in which a court of law held in the course of Term, that no custom justifies giving infants name in vide post.
An interesting decision was given by the Vice-Chancellor on the subject of testamentary gifts to illegitimate children, which the Law Times thus summarized :
"The testator married twice. By his first wife he had two children, both of whom died in his life-time, one only leaving issue. By his second wife he had two children, both born before the marriage. By his will he gave to his wife power to dispose of his property among our children,' and in the event of her making no will, the property was to be equally divided between his children by her. It was argued that by allowing the illegitimate children to come in under the will, the legitimate children would be excluded. The ViceChancellor said, however, that there is no rule to prevent legitimate and illegitimate children taking together as a class where it is intended they should do so."
There was a case curiously illustrative of the modern jurisdiction of Courts of Equity, now concurrent with that of Courts of Law, but far more effective, to grant injunctions to restrain acts of trespass or injury to property without any colour of title. A person who, with his father, had been about 70 years in quiet possession, and who had proved this in an action brought against him a few years ago, had obtained an injunction to restrain a party who had cut down a tree and threatened to cut down others in order to drive the owner to bring trespass, to try the title. The Master of the Rolls adopted what had been said by Vice-Chancellor Kindersely in March, 1864, in a similar case (Loundes v. Bettle, 21, Weekly Reports, p. 399) where he held that the tendency of modern decisions was to break down the old distinctions between waste and trespass, and that the Court could grant an injunction to a person in possession of an estate, to
restrain another person from committing, under colour of a claim of title, repeated acts of trespass, which tended to the destruction of property. (Stanford v. Hurlstone). Under the C.L.P. Act, 1854, an injunction can be obtained in such case, but only in an action, and in that action the defendant may plead so as to drive the plaintiff to a trial, which may cause a delay of twelve months, or, if points are taken or reserved, perhaps twice twelve months; and, in the meantime, the mischief may be going on, and there is no remedy at law until the litigation is determined, which may be a little too late. • The Vice-Chancellor is a great authority in trademark cases, for his decision in the Glenfield Starch case was affirmed by the House of Lords. His Honor was occupied for two days with a trademark case, which will no doubt be a leading case, as it raised the novel question, whether exclusive use for some years gives a trader the exclusive right to the use of a descriptive epithet not exclusively descriptive of his own article, but merely asserting some quality or kind of excellence which others may have in common with it. The particular epithet in this case was “nourishing” as applied to “stout,” not brewed by the plaintiff, nor even brewed exclusively for him, but in some way dealt with by him and sold for some years as his nourishing stout. The defendant then got stout brewed, and sold it as his nourishing stout, under labels differing in size and form from the plaintiff's, and in no way an imitation of them, beyond the mere use of the word "nourishing." The ViceChancellor held that there was no right to the exclusive use of the term except coupled with the name of the plaintiff; as there was no use of his name, and no colourable imitation of his mark, there was no right at all to complain of the defendant's use of the term as applied to the stout he sold. (Ragget v. Findlater). The decision excited much attention and discussion, but it seems unquestionably sound.
Vice-Chancellor Malins had to decide a case which raised a question, as he said, of very considerable general-importance.
A railway company, bound to afford communication by way of level crossing, objected to new building on the land on each side of the crossing as likely largely to increase the traffic ; but the Vice-Chancellor held that they had no right to make the objection, and that it was too narrow a view to say that the enjoyment could not be extended, but that the landowner had the right of using the communication for any purpose to which the land might be lawfully applied and therefore to building purposes. (Limited Land Company v. the Great Eastern Railway Company.)
In another case, on an appeal from a County Court, a question was raised which, as the Vice-Chancellor said,
though the sum involved was small, involved principles of great importance,” an instance illustrating the extreme absurdity of the limitation of the jurisdiction of the County Courts by mere pecuniary amount, and showing the wisdom of the view taken by the Judicature Commissioners that the nature of the case, and not the mere amount should be considered. The widow and administrator of an innkeeper who had assigned his stock to a creditor, carried on the business on her own account until she became bankrupt, and it was held, affirming the decision of the County Court Judge, that the stock assigned was liable to her creditors, as having been allowed to be in her order and disposition with the creditor's assent. (Kitchin v. Ibbetson.
There was another case belonging to the same general class, but between very different parties, and involving collaterally very different principles. In that case the Prince Louis de Bourbon had given an agreement by deed, pledging his household effects to a member of the Brazilian Embassy, for a large advance of money, which was applied in discharge of the Prince's debts, not including, however, the tradesmen who had furnished the house. The agreement was not registered as a bill of sale, and the Prince afterwards declined to execute one, but offered to deliver up possession of the effects taken ; how
ever, a person applied to take possession on the part of the Brazilian Minister, but he was refused admission; afterwards, on the same day, the Sheriff entered, and seized under a writ on a judgment obtained on that day at the suit of the tradesmen who furnished the house, and the Sheriff was about to sell under the writ, when a bill was filed, in the name of the Brazilian Minister himself, and not the person who had actually advanced the money, to restrain the Sheriff from selling. The bill stated that the money was the money of the Emperor of Brazil, and that the bill was filed on his behalf. The defendant demurred, on the ground that the Emperor himself should have sued, and that the agreement not having been registered as a bill of sale could not prevail against an execution. The Vice-Chancellor allowed the demurrer on both grounds. (Baron Penedi v. Johnson.)
The Vice-Chancellor was called upon to deal with a curious case as to revocation of trusts, which may be compared with another before the Master of the Rolls. A lady, about to enter a convent, settled a large sum in trust for herself, until she entered, and then for herself only for life, with ultimate interests to the family, with a power of revocation if she should at any time leave the convent. She desired to alter the disposition of the money so as to have it absolutely under her own control, and with this view, "acting under the advice of an eminent conveyancer," she left the convent for a week, executed a revocation, appropriating the money absolutely to her own use. She then returned to the convent and demanded the money from the trustees, who, doubting whether the trusts had been duly revoked, paid the money into court under the Trusts Act, and the lady applied for it, on the ground that her revocation carried out her original intention. The Vice-Chancellor held that, though the leaving the convent temporarily for the purpose of the revocation was obviously only colourable, yet that it was so clear the lady had intended to keep the money under her own control, that she was entitled to it absolutely, and