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Judgments Execution, &c., Bill.

175 tered, to all intents and purposes as if such as years, with or without hard labour ; and every judgment had been originally obtained or en person who shall be charged with committing tered up in such Court: provided always, that any such felony or crime and offence may be no proceeding to revive such decreet shall be dealt with, indicted, tried, and, if convicted, taken nor shall any writ of error be brought on sentenced, and his offence may be laid and any such extract registered under the authority of charged to have been committed, in the country this Act; provided also that where a note of sus- or place in which he shall be apprehended or pension of any such decreet shall have been pass- be in custody. ed or a sist of execution shall have been granted 9. It shall be lawful for the Lord Chancellor, thereon by the said Court of Session or any with the concurrence of the Lords Justices, Judge thereof, on the production of a certificate Master of the Rolls, and Vice-Chancellors, or under the hand of the clerk to the bill chamber any two of them, in England, and for the Lord of the Court of Session of the passing of such Chancellor and the Master of the Rolls in Irenote or granting of such sist, to a Judge of the land, and they are hereby required, from time Court in which such extract of such decreet to time to make all such general rules and has been registered, execution on such regis- orders to regulate the practice to be observed tered extract shall be stayed until a certificate in the execution of this Act or in any matter be produced under the hand of the said clerk relating thereto, including the scale of fees, to that such sist has been recalled or has expired, be charged, in the Courts of Chancery in Enge or where the note of suspension has been land and Ireland respectively, as in their judgpassed, until there be produced an extract, ment shall be necessary and proper; and it under the hand of the extractor of the Court shall be lawful for the Judges of the Court of of Session or other officer duly authorised to Queen's Bench, Common Pleas, and Eschemake and subscribe extracts, of a decreet of quer at Westminster and Dublin respectively, the said Court repelling the reasons of sus or any eight or more of them respectively, of pension.

whom the chiefs of the said Courts respec6. It shall not be necessary for any plain- tively shall be three, and they are hereby retiff in any of the aforesaid Courts in England, quired, from time to time to make all such resident in Ireland or Scotland, or any plain- general rules and orders to regulate the prac. tiff in any of the aforesaid Courts in Ireland, tice to be observed in the execution of this Act resident in England or Scotland, to find se- or in any matter relating thereto, including the curity for costs in respect of such residence, un- scale of fees to be charged, in the Courts of less, on special grounds, a Judge or the Court Common Law in England and Ireland respecshall otherwise order, nor shall it be necessary tively, as in their judgments shall be necessary for any party to any suit in any of the afore- and proper; and it shall be lawful for the said Courts in Scotland, resident in England Court of Session in Scotland, and the said or Ireland, to sue by or sist a mandatary, or Court is hereby required, from time to time to otherwise to find security for expenses in re- make such acts of sederunt to regulate the spect of such residence, unless on special practice to be observed in the execution of grounds the Court shall otherwise order. this Act or in any matter relating thereto, in

7. In any action brought in any Court in cluding the scale of fees to be charged, in England, Ireland, or Scotland, on any decree, Scotland, as in its judgment shall be necesorder, judgment, or decreet, which might be sary and proper : provided always, that such registered under this Act in the country in rules, orders, and acts of sederunt respectively which such action is brought, the party bring- shall be laid before both Houses of Parliaing such action shall not recover or be entitled ment within one month from the making thereto any costs or expenses of suit, unless the of, if Parliament be then sitting, or if ParliaCourt in which such action shall be brought, ment be not then sitting within one month or some Judge of the same Court, shall other from the commencement of the then next wise order.

Session of Parliament. 8. If any person shall forge the signature of 10. Such altered writs of execution may be any officer of any Court in England, Ireland, issued in the said Courts of Common Pleas at or Scotland, or the seal of any such Court, to Westminster and Dublin respectively as may any decree or order, or to any office copy of by the Judges of the said Courts respectively any decree or order, or to any memorial of a be deemed necessary or expedient for giving judgment, or to any extract of a decreet, or to effect to the provisions of this Act, and in such any other document required under this Act, forms as the Judges of such Courts respecor shall tender for registration, or use or utter, tively shall from time to time think fit to any such decree or order, office copy of a de- order; and any existing writ of execution the cree or order, memorial, extract, or document, form of which shall be in any manner altered in with a false or counterfeit signature or seal pursuance of this Act shall nevertheless be of thereto, knowing the same to be forged, he the same force and virtue as if no alteration shall be guilty of felony, and in Scotland of a had been made thereon. high crime and offence, and shall upon con- 11. Nothing in this Act contained shall viction be liable to transportation for 14 years. operate so as to enable effect to be given to any or to penal servitude for any term not exceed- decree, or order, judgment, or decreet made ing 10 years and not less than four years, or to against any defendant who at the time of the imprisonment for any term not exceeding three commencement of the suit or action was resid


176 Right of a Purchaser to deduct Income Tax out of Interest on Purchase-money. ing within the United Kingdom but out of the Clerk remitted the question to the decision of jurisdiction of the Court pronouncing such the Vice-Chancellor, before whom it was decree, or order, judgment, or decreet, unless argued by the respective solicitors on the the mesne process or the summons or other 18th December. proceeding by which such suit or action was On the part of the purchaser, the claim to commenced in that Court (except in the case deduct the income tax was resked on the 102nd of substituted service in Ireland, under section section of the Act of 1842, as regards the in34 of 16 & 17 Vict. c. 113), shall have been terest due from Christmas, 1852, to the 5th served within its own jurisdiction on such de- April, 1853, and on the 40th section of the fendant.

Act of 1853, as regards the subsequent in12. In citing this Act in any instrument, do- terest, and on the following grounds: cument, or proceeding it shall be sufficient to Interest on purchase-money comes within use the expression "The Judgments Execution the description of "yearly interest” or “anAct, 1854.”

nual payments ” provided for by both clauses

in substance for the purpose of constituting RIGHT OF A PURCHASER TO DE. them,—there is no distinction between such in

terest and the interest on mortgage-money acDUCT INCOME TAX

cruing after the period for payment provided

by the covenant in the mortgage deed; e.g. INTEREST ON PURCHASE MONEY.

take the ordinary form by which the mortgagor covenants to pay 1,0001, borrowed and

251. for interest at the end of six months from CONSIDERING that the Property Tax Act the date of the mortgage, or 25l. at the end of was passed in 1842, and that the question six months and 1,0251. at the end of 12 months, which arose under it between vendor and pur- -in either case the borrower having paid the chaser, whether income tax ought to be allowed interest, but having failed to pay the principal out of interest on purchase-money, has been at the period fixed for its payment, is liable to one of almost daily occurrence in the practice be sued at any time for the interest which subof solicitors, it is somewhat remarkable that sequently accrues de die in diem, and such inuntil now the point has (as we believe) never terest is admitted to be yearly interest within been submitted to judicial decision. It affords the terms of both Acts. pregnant evidence of the disinclination of so- The cases noted below all arose out of aplicitors to litigate a question which, however plications for orders to pay purchase-moneys open to doubt, is yet capable of being settled into Court, fell short of deciding the question, amicably.

because the clause directing the deduction We are told that the preponderance of the applies only to cases of direct payment of inopinion and practice of the Profession inclined terest by the party liable to pay to the party to the disallowance of the claim of the pur- entitled to receive it. In Holroyd v. Wyatt, chaser to deduct the income tax.

Vice-Chancellor Knight Bruce grounded bis At length, however, an opportunity has oc- decision on the practice of the registrars in curred, under the improved practice of the drawing up such orders. In Duval v. Mount, Court of Chancery of obtaining the decision of Lord Langdale, M. R., reversed the question the Court on the question under the ordinary as between the vendor and purchaser, by direference to Chambers to take the account of recting the purchase-money not to be paid out rents and interest of purchase-money as be- without notice to the purchaser, so as to give tween vendor and purchaser, and we have the the latter the opportunity of making good his pleasure of conveying to our readers the de- claim to the deduction before the interest cision of Vice-Chancellor Wood on a point so reached the hands of the vendor. In Flight v; interesting to the Profession at large, and Camac, Vice-Chancellor Kindersley, expressed which becomes every day of greater import- a strong opinion in favour of the right of the ance to their clients, as the tax has been in- purchaser to the deduction as between bim and creased and is likely to be increased still more. the vendor, which more than counteracts the

The question arose in a suit of Bebb v. Bunny, opposite view of the question suggested by Vicewhich was for specific performance of a con- Chancellor Knight Bruce in Holroyd v. Wyatt. tract for sale of an estate in Berkshire, to be Dinning v. Henderson, Law Jour, 191, N. S. completed as from Christmas, 1852, the pur- 273, was cited as a direct authority in favour chaser taking the rents and .paying interest on of the vendor's claim. In that case, which was the purchase-money to the vendor from that an order on suit, a creditor had proved a debt time. As the Property Tax Act of 1842 (5 & 6 founded on a dishonoured bill of exchange and Vict. c. 35) expired in effect on the 5th April, the Master in calculating interest on the bill 1853, from which time the tax was levied under had deducted income tax from the interest. On the authority of the Act of 1853 (16 & 16 Vict. motion for an order to the Master to review C. 34), the question involved the construction of both Acts on the point at issue.

| Holroyd v. Wyatt, 1 De Gex & S. 125; In taking the account of interest before the Dupal y. Mount, 35 L. O. 260; Dawson v. Chief Clerk (Mr. Bloxam), the purchaser Davison, 11 Jur. 984; Humble v. Humble, 12 claimed to deduct income tax from it; the Bearan, 43; Flight v. Camac, Weekly Revendor resisted the claim; and the Chief porter 1854. 437.

Purchaser and Income Tax Review: Lederson's Copyright and Patents. 177 his report in that respect, Vice-Chancellor ham and Vaux. To which is appended Knight Bruce, after considering the certificates

a corrected Report of the Judgments deof the Masters Rose, Farrer, and Dowdswell

, livered by the Lord Chancellor, Lord. that the practice of their offices was to allow the deduction, refused the application.

Brougham, and Lord St. Leonards. By On the part of the vendor it was contended,

MONTAGUE R. LEVERSON, Attorney and that interest on purchase-money was not annual

Solicitor. London: Wildy & Sons. 1854. interest, within the meaning of either of the MR. LEVERSON's Treatise on Copyright Property Tax Acts, the decisions of the Court and Patents has arisen from the consideraon the orders for payment of purchase-moneyş into Court were relied upon. It was contended ton of the recent case of Jefferys v. Boosey, that the 102nd section of the Property Tax Act which involves some important principles of of 1842, revived by the 5th section of the Act law. The facts of that case are briefly as of 1853, draw a clear distinction between in- follow :terest reserved annually and interest not so reserved, and that the provision for deduction

“ Vincenzo Bellini, an alien, then and since of the tax in that Act, applied only to the for- resident out of the Queen's dominions, wrote a mer and not to the latter, and that the tax on musical work. Bellini, by the laws of Milan, interest not annual was to be returned by the acquired a copyright therein, and assigned that receiver, as gains and profits under Schedule copyright to Ricordi, another alien, then also D.

resident at Milan, where the assignment was In reply, on the part of the purchaser, it was came to England, and assigned to Boosey, the

made pursuant to the laws thereof. Ricordi admitted that the question might

be more open original plaintiff, all his, Ricordi’s, copyright in to doubt so far as it depended on the Act of the said work for Great Britain and Ireland 1842, on account of the juxta-position of the provision for the deduction in section 102 of only. Boosey is an Englishman, and after the that Act; but it was contended that the pro- the work never having been before published

assignment, published the work in London ; vision for deduction in section 40 of the Act either in England or elsewhere. of 1853 overrode the provision in the former Act, and that it, and also the provision in the Statutes as to Stationers' Hall, &c., and after,

“ Boosey complied with the requisition of the Act of 1842, applied to all interest which would, under the largest interpretation of the wards Jefferys, the original defendant, pirated Acts, come within the description of yearly in the work, and Boosey brought an action against

him.” terest; that the clear intention of both Acts was that the taxpayer should ultimately pay

The Author thus states the questions the tax on his net income only, and it there- arising on this state of facts :fore allowed him to deduct the tax on the in

Can an alien, resident abroad, acquire here terest of all charges to which his property was subject, so that as in this case the purchaser

copyright in his own composition? would receive the rents minus the tax so he other alien ?

"If so, can he assign such copyright to anwould pay the interest minus the tax,—that if

“Can such assignee assign a portion of such he paid the interest without deducting the tax, there was no provision in the Act which would copyright to a citizen, by whom publication is

first made ? " enable him to deduct the interest from either property or gains and profits, and therefore he The Court of Exchequer Chamber decide would ultimately pay income tax on more than these questions in the affirmative, but on his net income, and the Government would re- an appeal to the House of Lords the deceive a tax to which, according to the true cision was overruled. Mr. Leverson states intent and meaning of the Act they were not thatentitled. The Vice-Chancellor, after taking time to

“It was admitted on all hands, and it is the consider the question, decided that the pur- dent in the matter.

fact, that the Courts were unfettered by prece. chaser was entitled to deduct the income tax “ It was admitted, and it is the fact that the on the interest. We shall probably be able to Statutes regulating copyright are so far silent, give the judgment next week.

that they do not expressly compel a decision either way. That, consequently, the question

must be decided on 'general principles,' though NOTICES OF NEW BOOKS. I fear much those who used this term had no

distinct knowledge of the principles by which Copyright and Patents; or, Property in they would be guided. Thought : being an Investigation of the

"If then, as was argued by some, Common Principles of Legal Science, applicable to Law is silent, and that at Common Law, whatProperty in Thought; with their bearing exists, it remains to put a construction on the

ever may be meant thereby, no copyright on the case of Jefferys v. Boosey, recently Statutes. decided by the House of Lords. In a “Of all the constructions of which the Letter to the Right Hon. Lord Brough- words are capable, without an evident disre


Review : Leverson's Copyright and Patents.

is “A just that which will most tend to effect the ob- observer of the importance to be derived from ject of society, viz., the welfare and happiness the existence of the greatest possible stock of of its members; that, if anything, must be the the necessaries and comforts of life, produced meaning of a decision by an appeal to general by labour, i. e. of wealth ; consequently the principles; in other words, that construction greatest possible inducement to production which shall be most consistent with justice. should be held out to the labourer.

“If it be true, as contended by others, that “The greatest possible inducement will be copyright exists at Common Law, the meaning the greatest possible proportion of what he has of this expression translated into sensible lan- produced, that is, wherever practicable, the guage is :- What regulations on the point in whole of it, less the least possible amount that question will best promote the object of so- shall be necessary for the purposes of protecciety?

tion from depredators and assailants, whether "Not that for one moment I would do so from within or without : meaning by whatever much injustice to the Common Law of Eng- practicable the non-existence of a preponderatland, as to suppose that which goes by the ing inconvenience. So important is the giving name as calculated in any but a remote degree of this inducement felt to be, that rather than to promote so insignificant an object, so con- give less to one set of labourers than the full temptible an end, as the welfare of those sub- amouut of the produce of their labour, such jected to its rules-far from it-in innumerable deduction made as before, something more is instances in which the law has been establish- given, in the shape of something which neither ed. But on points such as the present, in no they nor any one else produced ; and because way fettered by Statute or decision, such, if it the whole value of the labour applied to land have any meaning at all, must be the meaning not being restored with each successive crop, of the phrase ' the Common Law.”'

continues partly to exist in the shape of imThe Author then asks what are the proved fertility, and cannot in the present state rights involved in the consideration of the really rent ; in the shape of exclusive permis

of knowledge be distinguished from what is present case, which for the attainment of sion to cultivate this land so by them before the object of Society, it is fitting should be cultivated; this rent also is permitted to be established ? and he proceeds fully to dis- retained by the cultivator. cuss this question of principle, from which

Mr. Leverson then argues in favour of we make the following extracts :

literary property that“ The subject in question is one of property. “There is nothing more purely the produce

“An examination of the question of property, of labour than a discovery or an invention. To and of the rights it is fitting should be esta- the discoverer or inventor the exclusive right blished, in that regard will lead by easy steps thereto belongs, and, as with all other property, to their application in the present instance. becomes vacant by the death of the owner; like

To procure the means of subsistence, and other property, it should then be dealt with in afterwards of enjoyment, man devotes himself the manner that shall be meetest for the object to labour ; without these means he perishes : of society. But, it may be said, discoveries or -an insufficient supply is a source of misery; inventions, or thoughts of any kind, are not -it is a good thing then that he should pro- wealth, on the unquestionable ground of the cure these means, meaning by, a good thing importance whereof this argument rests. True, that which tends to man's happiness. Having but of all the productions of labour, none are produced he must be suffered to enjoy, other more important, none more effectual, for the wise he will soon grow tired of his useless toil, promotion of the welfare of society than they ; and ceasing to produce, the earth would be since these very discoveries and inventions filled with misery.

either on the one hand lead to the most effec“The enjoyment, then, of what he has pro- tual means of production, or they tend other. duced by his labour, is among the earliest pro- wise to gratify in the highest degree all those visions of a society emerging from barbarism. faculties

of the mind, the gratification whereof Thus are established the rights of property, excites that state of feeling emphatically called and a body of laws having for its object the de- happiness. Hence the largest possible inducefining and protection of these rights. So im- ment should be held out to those labourers who portant is felt to be the production of these may be disposed to labour in so important a means, that to facilitate their production men field. enter into agreements with one another relat- “ Discoveries or inventions are thoughts. ing thereto. Society feeling the advantage of With thoughts unexpressed the legislator has such agreements, perceiving the important part no concern ; thoughts expressed only can be they play in securing enjoyment to the pro- dealt with by him. They are expressed either ducer, and consequently promoting produc- by vocal or by visual signs. Thought leads to tion, enforces the fulfilment of such agree thought, intimately and directly widely spread; ments by its law. Agreements tending to pro- there is no limit to the future benefit derivable mote the welfare of society are thus legally from a single thought. It is, therefore, greatly enforceable; these legally enforceable agree- important to spread abroad as much as possible ments are called contracts.

the thought of the care being taken that

Review: Lederson's Copyright and Patents.--Finlason's Common Law Procedure. 179 sufficient inducement be left to the to the tailor in the coat he has mades The right of property, then, of the author in or the price he has received therefor. his thoughts, when expressed by signs, may “ In each case all others are excluded from be, and experience teaches that it is, subject to enjoyment. “Hands off,' exclaims society ; a limitation in point of duration, by the exist- and its reason in each case is alike. But beence of antagonistic convenience attached to cause an inconvenience in the shape of uncerthe dissemination of thought, not extending to tainty exists in the case of property in thought, the right of property in other produce of and does not exist in a noticeable degree in the labour. I say a limitation in point of duration, case of property in the coat, society requires and for this reason,--other things equal that the thinker to remove this uncertainty, on pain motive is least efficient, the operation whereof of perceiving the results of bis labour become is most remote. Hence the abatement made the common property of the community. from the labour inducing motives should be “In establishing regulations for the converemote as possible; also it is that limitation, nient direction and exercise of the right in this otherwise convenient to the community, being peculiar instance, the legislature should impose that to which the inconvenience of uncertainty such regulations and limitations as would prois attached in the least degree.

duce, on the whole, the greatest proportionate “To the visual signs of thought the thinker advantage, compared with the disadvantages may acquire right in the modes appointed for inseparably connected with this, as with all the acquirement of other species of property, other human actions and regulations. Whefailing such acquirement, he possesses still the ther the rights that have been established with right of property in his thought, and that alone. regard to ownership of thoughts expressed by Can it be said, that in these thoughts others visual signs, are the meetest for the welfare of should acquire, without his consent, a right of society, is not my present purpose to inquire, property?

as it would need a complete exposition of the “Expressed by visual signs, the discoverer, existing law thereon.” or author, publishes his thoughts to the purchaser of their expression, at the price to which We must refer to Mr. Leverson's Essay the author and purchaser agree. Of these for the further development of his views in thoughts for his own use, the purchaser of the support of the Common Law right of an signs by which they are expressed becomes the author or inventor to the exclusive privilege possessor. “ If any other means can be devised by

of publishing copies of his original work or which the exclusive enjoyment of the produce invention. The argument is conducted with of his labour can be assured to the author, much force and earnestness, and reflects than the exclusive right of giving his thoughts credit on the Author for the zeal and eloto another, adopt such means; for my own quence with which he advocates the inpart I know of none. On the other hand, to terests of literary and scientific men. restrict him who shail thus have purchased the author's thoughts from every application thereof to any purpose of utility, would in effect put The Common Law Procedure Acts of 1852 a stop to the purchase. To restrict him from

and 1854, with Notes containing all the their expression by vocal signs, or from the personal and manual copy of their visual ex.

Cases either already expressly decided on pression, would in most cases be productive of

or tending to elucidate them. With an far greater inconvenience than such restriction

Appendix containing the Common Law purports to prevent.

Procedure Acts of William 4, the recent “But he who purchases the visual signs of Statutes on Evidence, and the New Rules thought, of that which he has purchased may framed under the late Acts of 1852 and dispose,—this follows from the principles of 1854, and an Introduction. By W. F. contracts. That he who purchases these visual

FINLASON, Esq., of the Middle Temple, signs may know the vendor has title for the sale, arrangements should exist for the ascer

Barrister-at-Law, Author of “Leading tainment of the owner,—as by registration and

Cases on Pleading,” Co-Editor of the the like. Means also should be provided, by

Common Law Procedure Act of 1852, which such ownership shall appear on the

and Editor of “ The Charitable Trusts' subject of sale.

Act." London: Stevens & Norton. Hence copyright, or patent-right, is not 1855. Pp. 604. the right of multiplying copies, but the right to the produce of man's labour, often of a kind We can scarcely keep pace with the conthe most prolific of all labour of benefit to tinued issue of new publications on the society.

Common Law Procedure Acts. Doubtless, “Society, when by a grant of copyright, or their great importance justifies the attention patent-right, it grants to the thinker the exclu- which is bestowed by several members of sive use of his thoughts, and the exclusive enjoyment of whatever may be the estimate the Bar on the effect of the New Statutes. formed by society of their value, grants no The various editions which have been pubmore a monopoly than when it grants a sole lished with notes and commentaries on the

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