is the only way in which it can be done. It is true, and I feel the force of the observation, that this would give what may be called a narrow construction to this section. Undoubtedly it would, and I agree that, in a case where the person who is sought to be made liable is a shareholder, and, that person being dead, his executors are on the list of contributories, there is no more reason why you should not work it out against the executors under the 165th section, than in the case which comes within the 101st section. But the question is, whether in any case you can apply a section to the executors, where the direction is that you shall compel the payment by the person. I think you cannot, and for that reason I cannot come to the conclusion that the section is applicable to the case of the executors of Mr. Feltom. There is this observation to be made, and I confess it strikes me very forcibly. If the charges in question which are made against Mr. Feltom are made, not only against him, but against a number of other persons who did, or omitted to do, all that Mr. Feltom did or omitted to do, and you cannot proceed against the executors of Mr. Feltom under this section, how can you proceed against any of the others? Because, for the purpose of winding-up, as the Vice Chancellor Parker held in the case of The London and Birmingham Extension Railway Company, it is not enough, under the general proceedings in winding-up, to say that you find that A, B. and C. have been guilty of misfeasance, and so make them solely liable; but if there be others of the shareholders who have been equally participators with them you must make them all liable, or else you do not discharge your function, which is to administer the equities of all the contributories inter se, and to adjust their rights amongst themselves. You do not do that if you leave out any one, for if you embrace five out of six, and leave out the sixth, those five whom you make liable have a right to say, "you are not administering the rights among the shareholders, because you leave out a person who ought to help us to contribute." It is true, it appears to me, that that consequence follows, but it does not follow that there is then no remedy, although it is true, if that be the result, that there is no remedy except by suit. But still, if the legislature has, in order to avoid a suit where it can be done, given authority to proceed under the Winding-up Act in certain specified cases, and there be other cases which do not come within that authority, that is no reason why the Court would be at all justified in stretching the power given by this 165th section, in order to embrace these cases. I have not mentioned the 109th section, but have only to say that it is a general section, one of those which come under the head of "ordinary powers of the Court," directing it to adjust the rights of the parties inter se. But it is certain that many of these charges could not possibly come under that. Upon the whole, it appears to me that the best conclusion that I can arrive at is to say that the proceedings ought to be stayed against Mr. Feltom's executors. The costs must come out of the estate. Patent Jurisdiction Injunction Damages-21 & 22 Vict. c. 27. (Sir H. Cairns's Act)-Costs (15 & 16 Vict. c. 83. s. 43). The plaintiff's bill prayed for an injunction against the infringement of his patent by the defendant, for an account of profits and for damages. After the filing of the bill, but before the hearing of the cause, the patent expired. The infringement being proved, the Court held that its jurisdiction related back to the time of the filing of the bill, and awarded damages under the act 21 & 22 Vict. c. 27. Distinction taken in the proper form of inquiry as to damages in respect of the infringement of a trade-mark, and the infringement of a patent. A patentee is entitled to "full costs" at the discretion of the Judge, under the act 15 & 16 Vict. c. 83. s. 43, in any suit to protect his rights under the patent, although the validity of his patent is not disputed, and has, in fact, been established in prior suits. The plaintiff in this suit was the assignee of a patent for improvements in the manufacture of chenille. The bill sought to restrain the defendant Rylands, an extensive warehouseman at Manchester, from selling, without the plaintiff's licence, any chenille manufactured by the patented process, and prayed for an account of profits, and an assessment of damages. The validity of the patent was not disputed. The evidence clearly established the plaintiff's case as to the sale by the defendant of goods manufactured in violation of the patent. The defendant endeavoured to set up an agreement in the nature of accord and satisfaction before the suit, but the Court held that such a defence was not supported by the evidence. The only peculiarity in the case arose from the fact that, after the filing of the bill, but before the hearing of the cause, the plaintiff's patent had expired, and therefore nothing remained for an injunction to operate upon. The bill was filed on the 8th of November, 1864. The patent expired on the 13th of November, 1865. The cause was now brought on by way of motion for decree. Mr. Willcock and Mr. Hardy, for the plaintiff, asked the Court to assess damages under the act, 21 & 22 Vict. c. 27. 8. 2. Mr. Rolt and Mr. Little, for the defendant, contended, that the patent having run out the Court had no jurisdiction. The Court cannot interfere now, where it would not have interfered before the act. Under the old practice there could have been no account of profits, in the absence of a right to injunction Baily v. Taylor, 1 Russ. & Myl. 73; s. c. 3 Law J. Rep. Chanc. 66. Parrott v. Palmer, 3 Myl. & K. 632. Mr. Willcock, in reply.-The act authorizes the Court to substitute damages if it "has jurisdiction to entertain the application." In Soames v. Edge, Johns. 669, damages were awarded in lieu of specific performance. The jurisdiction must relate back to the filing of the bill. WOOD, V.C., after dealing with the question of accord and satisfaction, went on to consider how far the Court was authorized, under the act of 1858, to assess damages in respect of the infringement of the patent, and continued-I confess it has taken me some time and trouble to look into this question. The latest authority upon the point is one of my own-Price's Patent Candle Company v. Bauwen's Patent Candle Company (1), to which I only refer because I there had regard to the various authorities, and cited them in my judgment. In that case I was obliged to hold that this Court could give no relief. I observe that it was decided in July, 1858, the identical year in which the act was passed, but no reference was made to it either in the argument, or in my judgment. Consequently, I have now to consider the question with reference to the operation of that act, and here I am very much assisted by a decision of the Master of the Rolls in the case of Catton v. Wyld (2).—[His Honour referred to the circumstances of that case, in which the bill prayed for an injunction to restrain the pulling down of a wall, but pending the litigation the parties, by agreement with each other, had built the wall up, so that at the hearing there was nothing for the injunction to operate upon; and the question was, whether the Court could do anything more than determine upon the costs. The Master of the Rolls awarded damages, although they were not specifically asked for in the prayer of the bill.]-Now, undoubtedly, when the present bill was filed the Court had full jurisdiction to grant an injunction, which would have been awarded if the case could then have been brought to a hearing. It so happens partly, no doubt, from the plaintiff not choosing to press the case on quite so much as he might have done by an application to have it advanced, that now the patent has run out and there is nothing for the Court to restrain. But this is a beneficial act, and it is obvious upon the face of it that the intention of the legislature was to enable a Court of equity to give full and complete relief, without harassing a suitor by compelling him to go from one Court to another, and perhaps, after obtaining partial relief here, to have recourse to a Court of law for some further remedy. (1) 4 Kay & J. 727. (2) 32 Beav. 266. Therefore, the act says, that where the Court has jurisdiction to entertain an application for an injunction, it shall have power to award damages in addition to or in substitution for such injunction. At first sight, I admit that I was strongly impressed with the notion that the Court must have jurisdiction at the hearing, and not merely at the time of the filing of the bill. But I think that that would be a narrow construction of the act, because what would be the result? I should be obliged to dismiss the bill without costs. I should subject each party to bear his own costs of this litigation, and then it would be open to the parties to commence an action at law, and the very mischief which the legislature wished to avoid would be incurred, and that, not in consequence of anything that had taken place at the time of the filing of the bill, when the Court had plenary jurisdiction on the subject, but by reason of something which has happened in the course of the litigation. I think that the sound view of the whole case is, that I ought to consider myself as having had jurisdiction at the time the bill was filed, so as to attach for the purpose of ultimately giving relief pursuant to the act; and that I ought, therefore, now to grant the plaintiff a decree giving him the costs of the suit up to the hearing, and an inquiry what damages he has sustained, I do not say "if any," because I think the case materially differs from that of a trade-mark. In the case of a trade-mark there is this obvious difference, that the article is open to the whole world. Anybody may manufacture it, and the only right the plaintiff has is to prevent the sale of any goods under his mark, because he may be very seriously damaged; but it does not follow that every article manufactured under that mark is any damage to him. Whereas, as regards a patented article, everything sold without the licence of the patentee is sold in breach of his rights, and must be to his damage. [His Honour concluded his judgment by referring to some particular instances, in which the evidence proved that the plaintiff had suffered damage.] Upon the question of costs: Mr. Willcock asked for "full costs," as between solicitor and client, under the act 15 & 16 Vict. c. 83. sec. 43. Mr. Little, contra.-This is not a suit to establish the patentee's title, but simply to obtain damages in respect of the infringement. The statutory power of awarding extra costs is entirely foreign to the matters dealt with in this suit. Mr. Willcock, in reply. The validity of the plaintiff's patent has been established in previous suits, and it is quite immaterial whether the defendant now disputes its validity or not. The act allows full costs upon the principle that the validity of a patent, having once been established, is a warning to persons not to infringe, whereas before they may have had some excuse for infringing. WOOD, V.C.-I think I ought to give costs as between solicitor and client, for this simple reason: the statute says that after a certificate of the validity of the patent has once been given, in any subsequent action the plaintiff may, if the Judge shall think fit, obtain his full costs as between solicitor and client. Of course, there may be circumstances in which the Judge might think it improper; as, for instance, he might think that the first action had been brought by collusion or the like, but the object of the enactment was to prevent patentees being put to the necessity of trying their right, when once established, by repeated actions, and that with reference to infringements as well as the patent itself, because it is just as important to a patentee that he should not be put to the unnecessary expense of litigation by minute questions of infringement, as it is with regard to the patent itself. I cannot see any distinction, and I am not aware of any express authority upon the subject, but the principle has been acted upon very liberally at common law, as being the just right of a patentee, who is subjected to the vexation of continual infringements (3). (3) Minute of order. Let an inquiry be made what damages the plaintiff has sustained by the sale by the defendant John Rylands, within six years from the filing of the plaintiff's bill, of any articles manufactured before the 13th November, 1865, the day of the expiration of the patent in the plaintiff's bill mentioned, pursuant to the process, the exclusive use of which was granted by the The Court has jurisdiction to alter any scheme settled by it for the administration of a charity, and for the system of leasing the charity estates, whenever lapse of time or change of circumstances makes an alteration desirable in the interest of the charity. An award in 1716 by the Master of the Rolls, confirmed by a decree of the Court in 1717, empowered the master of the hospital to grant new leases, for not more than three lives, at the old rents, and on fines which were not to exceed one year's value for a life, the rents and fines not to be increased without the leave of the Court of Chancery. Thenceforward, down to 1864, it was the custom of the hospital to grant renewals to the tenants on fines, and the Court on four several applications, under the award, by the hospital or tenants, ordered renewals and settled the amount of the fines. On an information by the Attorney General, the Lords Justices made a declaration against the system of renewing leases on fines, but directed that regard should be had to the cases of lessees who had expended money on their leaseholds on the faith of a continuance of such system. An information was filed ex officio by the Attorney General, on the 16th of August, 1864, against the master, co-brethren and sisters of the Hospital of St. John the Baptist, at Bath, and the trustees of the right of presentation to the mastership, praying a declaration that it would be for the benefit of the charity that the master, co-brethren and sisters should not for the future let the charity property on fines or for long terms of years, or otherwise than for the best rent they could procure, and letters patent in the bill mentioned; and let it be referred to the Taxing Master to tax the plaintiff his costs of this suit, up to and including the hearing, as between solicitor and client; and let the defendant J. Rylands pay to the plaintiff the amount of his said costs when taxed. Further consideration adjourned. Liberty to apply. for directions accordingly, and for a scheme for the future administration of the charity and the application of its revenues. Answers were put in, and the cause was set down for hearing before Vice Chancellor Kindersley; but, before it was heard, one of the lives on which many of the leases of the charity property were held dropped, and the Attorney General filed a supplemental information for an injunction against the grant by the master, co-brethren and sisters of any fresh leases, otherwise than at the best rent they could procure, till the further order of the Court. On the 31st of May the Vice Chancellor refused a motion by the Attorney General for an injunction, but the Lords Justices, on appeal, granted an injunction till the hearing of the cause. The original and supplemental informations were shortly afterwards heard before the Vice Chancellor. But in consequence of what Lord Eldon said in The Attorney General v. Clements, his Honour expressed his opinion that he had no jurisdiction, and refused to dismiss the injunction or to do anything, and therefore the informations were heard as original causes before the Lords Justices. Two of the lessees, considering that they had a locus standi in the matter, presented petitions for renewals of their leases on payment of a fine. These petitions were heard at the hearing of the cause. The facts are very fully stated in the judgment of Lord Justice Turner. They may be summed up thus: The hospital is supposed to have been founded in 1174; but no record or memorial of its foundation is extant. In 1711 a bill had been filed in the Court of Chancery by the Attorney General, at the relation of the master, co-brethren and sisters, on behalf of themselves and of the tenants of the hospital, against Thomas Clements and other defendants, for the purpose of setting aside a lease from the late master to Clements, who was his son, and of settling a scheme for the future administration of the charity and its estates. The cause came on for hearing before Sir John Trevor, Master of the Rolls. But the whole question was, on the submission of the parties, referred, according to a practice not unusual, it seems, in the times of Lord Ellesmere and Lord Bacon, to Sir John Trevor's award. On the 13th of February, 1716, he made his award, from which, according to the Charity Commissioners' Report in 1830, the proper settlement of the charity is derived. By it new leases not exceeding three lives were ordered to be made to the then tenants, on the fines which they had themselves proposed, and it was provided, in the 13th section of the award, that the master, with the consent of the brethren and sisters, might, from time to time, on the surrender of a lease or the dropping of a life, grant new leases, not exceeding three lives at the most, reserving the same rents as were thereby reserved, and that the fines to be taken on renewing a lease should not exceed one year's value for a life; and the rents and fines were not to be increased without the leave of the Court of Chancery. The award was confirmed by a decree of the Court of Chancery, in 1717. Under that award and decree the master and co-brethren and sisters continued up to the present time to lease the charity estates by way of renewal on fines, usually fixing the fine at the amount of one year's rack-rent on renewals of the leases of houses and one and a half year's rack-rent for lands. Five applications were instanced in the argument as having been made to the Court by the hospital, or the tenants, or undertenants, under the 13th section of the award, four times successfully, viz., in 1738 and twice in 1753, before Lord Hardwicke, and again in 1823, before Lord Eldon · -The Attorney General v. Clements (1); and once unsuccessfully by the devisees of Jones, a tenant, viz., in 1776, before Lord Apsley-Somerville v. Chapman (2), a suit by Jones's sub-lessees against his devisees and against the hospital, was at the time pending; but in 1779, Lord Thurlow dismissed the bill in that suit. The Attorney General, Mr. Baily and Mr. T. H. Terrell, for the Attorney General. -A scheme ratified by the Court would not be treated as a nullity so long as it remained unaltered by the Court, and just so much authority, but no more, might be conceded to belong to this award. Lord (1) Turn. & R. 58. (2) 1 Bro. Ch. Rep. 61. Eldon's decision in The Attorney General v. Clements amounted only to this. Such an award was not less capable of alteration thau a scheme for the administration of a charity, and the Court had always held itself empowered to cancel the provisions of old schemes and decrees in such matters The Attorney General v. Wyggeston The Attorney General v. Bovill, 1 Phil. The Attorney General v. the Corpora tion of Rochester, 5 De Gex, M. & G. 797, 816, 821. The tenants claimed to participate in the benefit of the charity. But regard to the interests of tenants was not charity, and, even if an intention of the founder in their favour could be made out, as here at all events it could not be, it would be void by the rule against perpetuities. Such a claim had not been allowed even in cases where the grantor had contemplated a benefit to the tenants of the charity estate The Attorney General v. Catherine Hall, Hope v. the Corporation of Gloucester, 7 De Gex, M. & G. 647; s. c. 25 Chanc. 208. The variations in the amount of the fines taken on different renewals proved that there was no tenant right to renewal in the proper sense of the term. But the tenants appeared to think that they had a claim to perpetual renewal on the ground of their expenditure in building, on the faith of the habit of renewing the leases. This Court, however, had never, except in Thornton v. Ramsden (3), now under appeal before the House of Lords, held that expenditure by tenants. on the mere expectation that they would be suffered by the landlord to hold on, entitled them to the protection of the Court. |