Judgments Execution, &c., Bill.

175

years, with or without hard labour; and every person who shall be charged with committing any such felony or crime and offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed, in the country or place in which he shall be apprehended or

tered, to all intents and purposes as if such a judgment had been originally obtained or entered up in such Court: provided always, that no proceeding to revive such decreet shall be taken nor shall any writ of error be brought on any such extract registered under the authority of this Act; provided also that where a note of suspension 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 Engor 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 Exchemake 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 respectively shall be three, and they are hereby required, from time to time to make all such general rules and orders to regulate the prac tice to be observed in the execution of this Act or in any matter relating thereto, including the scale of fees to be charged, in the Courts of Common Law in England and Ireland respectively, as in their judgments shall be necessary and proper; and it shall be lawful for the Court of Session in Scotland, and the said Court is hereby required, from time to time to make such acts of sederunt to regulate the practice to be observed in the execution of this Act or in any matter relating thereto, including the scale of fees to be charged, in Scotland, as in its judgment shall be necessary and proper: provided always, that such rules, orders, and acts of sederunt respectively shall be laid before both Houses of Parliament within one month from the making thereof, if Parliament be then sitting, or if Parliament be not then sitting within one month from the commencement of the then next Session of Parliament.

6. It shall not be necessary for any plaintiff in any of the aforesaid Courts in England, resident in Ireland or Scotland, or any plaintiff in any of the aforesaid Courts in Ireland, resident in England or Scotland, to find security for costs in respect of such residence, unless, on special grounds, a Judge or the Court shall otherwise order, nor shall it be necessary for any party to any suit in any of the aforesaid Courts in Scotland, resident in England or Ireland, to sue by or sist a mandatary, or otherwise to find security for expenses in respect of such residence, unless on special grounds the Court shall otherwise order.

7. In any action brought in any Court in England, Ireland, or Scotland, on any decree, order, judgment, or decreet, which might be registered under this Act in the country in which such action is brought, the party bringing such action shall not recover or be entitled to any costs or expenses of suit, unless the Court in which such action shall be brought, or some Judge of the same Court, shall otherwise order.

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 conviction be liable to transportation for 14 years. or to penal servitude for any term not exceeding 10 years and not less than four years, or to imprisonment for any term not exceeding three

11. Nothing in this Act contained shall operate so as to enable effect to be given to any decree, or order, judgment, or decreet made against any defendant who at the time of the commencement of the suit or action was resid

L 5

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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 commenced in that Court (except in the case of substituted service in Ireland, under section 34 of 16 & 17 Vict. c. 113), shall have been served within its own jurisdiction on such de

fendant.

12. In citing this Act in any instrument, document, or proceeding it shall be sufficient to use the expression "The Judgments Execution Act, 1854."

On the part of the purchaser, the claim to deduct the income tax was rested on the 102nd section of the Act of 1842, as regards the interest due from Christmas, 1852, to the 5th April, 1853, and on the 40th section of the Act of 1853, as regards the subsequent interest, and on the following grounds :

Interest on purchase-money comes within the description of "yearly interest" or "annual 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 inDUCT INCOME TAX

OUT OF

INTEREST ON PURCHASE MONEY.

terest and the interest on mortgage-money accruing after the period for payment provided by the covenant in the mortgage deed; e. g. take the ordinary form by which the mortgagor covenants to pay 1,000l. borrowed and 257. for interest at the end of six months from CONSIDERING that the Property Tax Act the date of the mortgage, or 257. at the end of was passed in 1842, and that the question six months and 1,0257. 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 solicitors to litigate a question which, however open to doubt, is yet capable of being settled amicably.

We are told that the preponderance of the opinion and practice of the Profession inclined to the disallowance of the claim of the purchaser to deduct the income tax.

At length, however, an opportunity has occurred, under the improved practice of the Court of Chancery of obtaining the decision of the Court on the question under the ordinary reference to Chambers to take the account of rents and interest of purchase-money as between vendor and purchaser, and we have the pleasure of conveying to our readers the decision of Vice-Chancellor Wood on a point so interesting to the Profession at large, and which becomes every day of greater importance to their clients, as the tax has been increased and is likely to be increased still more. The question arose in a suit of Bebb v. Bunny, which was for specific performance of a contract for sale of an estate in Berkshire, to be completed as from Christmas, 1852, the purchaser taking the rents and paying interest on the purchase-money to the vendor from that time. As the Property Tax Act of 1842 (5 & 6 Vict. c. 35) expired in effect on the 5th April, 1853, from which time the tax was levied under the authority of the Act of 1853 (16 & 16 Vict. c. 34), the question involved the construction of both Acts on the point at issue.

In taking the account of interest before the Chief Clerk (Mr. Bloxam), the purchaser claimed to deduct income tax from it; the vendor resisted the claim; and the Chief

The cases noted below all arose out of applications for orders to pay purchase-moneys into Court, fell short of deciding the question, because the clause directing the deduction applies only to cases of direct payment of interest by the party liable to pay to the party entitled to receive it. In Holroyd v. Wyatt, Vice-Chancellor Knight Bruce grounded his decision on the practice of the registrars in drawing up such orders. In Duval v. Mount, Lord Langdale, M. R., reversed the question as between the vendor and purchaser, by directing the purchase-money not to be paid out without notice to the purchaser, so as to give the latter the opportunity of making good his claim to the deduction before the interest reached the hands of the vendor. In Flight v. Camac, Vice-Chancellor Kindersley, expressed a strong opinion in favour of the right of the purchaser to the deduction as between him and the vendor, which more than counteracts the opposite view of the question suggested by ViceChancellor Knight Bruce in Holroyd v. Wyatt. Dinning v. Henderson, Law Jour. 191, N. S. 273, was cited as a direct authority in favour of the vendor's claim. In that case, which was an order on suit, a creditor had proved a debt founded on a dishonoured bill of exchange and the Master in calculating interest on the bill had deducted income tax from the interest. On motion for an order to the Master to review

Holroyd v. Wyatt, 1 De Gex & S. 125; Duval v. Mount, 35 L. O. 260; Dawson v. Dawson, 11 Jur. 984; Humble v. Humble, 12 Beavan, 43; Flight v. Camac, Weekly Reporter 1854. 437.

Purchaser and Income Tax -Review: Leverson's Copyright and Patents.

his report in that respect, Vice-Chancellor Knight Bruce, after considering the certificates of the Masters Rose, Farrer, and Dowdswell, that the practice of their offices was to allow the deduction, refused the application.

On the part of the vendor it was contended, that interest on purchase-money was not annual interest, within the meaning of either of the Property Tax Acts, the decisions of the Court on the orders for payment of purchase-moneys into Court were relied upon. It was contended that the 102nd section of the Property Tax Act of 1842, revived by the 5th section of the Act of 1853, draw a clear distinction between interest reserved annually and interest not so reserved, and that the provision for deduction of the tax in that Act, applied only to the former and not to the latter, and that the tax on interest not annual was to be returned by the receiver, as gains and profits under Schedule

D.

In reply, on the part of the purchaser, it was admitted that the question might be more open to doubt so far as it depended on the Act of 1842, on account of the juxta-position of the provision for the deduction in section 102 of that Act; but it was contended that the provision for deduction in section 40 of the Act of 1853 overrode the provision in the former Act, and that it, and also the provision in the Act of 1842, applied to all interest which would, under the largest interpretation of the Acts, come within the description of yearly interest; that the clear intention of both Acts was that the taxpayer should ultimately pay the tax on his net income only, and it therefore allowed him to deduct the tax on the interest of all charges to which his property was subject, so that as in this case the purchaser would receive the rents minus the tax so he would pay the interest minus the tax,—that if he paid the interest without deducting the tax, there was no provision in the Act which would

enable him to deduct the interest from either property or gains and profits, and therefore he would ultimately pay income tax on more than his net income, and the Government would receive a tax to which, according to the true intent and meaning of the Act they were not entitled.

The Vice-Chancellor, after taking time to consider the question, decided that the purchaser was entitled to deduct the income tax on the interest. We shall probably be able to give the judgment next week.

NOTICES OF NEW BOOKS.

Copyright and Patents; or, Property in
Thought: being an Investigation of the
Principles of Legal Science, applicable to

177

ham and Vaux. To which is appended a corrected Report of the Judgments delivered by the Lord Chancellor, Lord Brougham, and Lord St. Leonards. By MONTAGUE R. LEVERSON, Attorney and Solicitor. London: Wildy & Sons. 1854.

MR. LEVERSON's Treatise on Copyright and Patents has arisen from the consideraton of the recent case of Jefferys v. Boosey, which involves some important principles of law. The facts of that case are briefly as follow :

"Vincenzo Bellini, an alien, then and since resident out of the Queen's dominions, wrote a musical work. Bellini, by the laws of Milan, acquired a copyright therein, and assigned that Copyright to Ricordi, another alien, then also resident at Milan, where the assignment was made pursuant to the laws thereof. Ricordi came to England, and assigned to Boosey, the original plaintiff, all his, Ricordi's, copyright in the said work for Great Britain and Ireland only. Boosey is an Englishman, and after the the work never having been before published assignment, published the work in London; either in England or elsewhere.

Statutes as to Stationers' Hall, &c., and afterBoosey complied with the requisition of the the work, and Boosey brought an action against wards Jefferys, the original defendant, pirated

him."

The Court of Exchequer Chamber decide these questions in the affirmative, but on an appeal to the House of Lords the decision was overruled. Mr. Leverson states that

"It was admitted on all hands, and it is the fact, that the Courts were unfettered by precedent in the matter.

"It was admitted, and it is the fact, that the Statutes regulating copyright are so far silent, that they do not expressly compel a decision either way. That, consequently, the question must be decided on 'general principles,' though I fear much those who used this term had no distinct knowledge of the principles by which they would be guided.

"If then, as was argued by some, Common Law is silent, and that at Common Law, whatever may be meant thereby, no copyright Property in Thought; with their bearing exists, it remains to put a construction on the 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

178

Review: Leverson's Copyright and Patents.

gard to their sense, the one to be selected is just that which will most tend to effect the object of society, viz., the welfare and happiness of its members; that, if anything, must be the meaning of a decision by an appeal to general principles; in other words, that construction which shall be most consistent with justice.

"If it be true, as contended by others, that copyright exists at Common Law, the meaning of this expression translated into sensible language is:-What regulations on the point in question will best promote the object of society?

"A slight examination only, convinces the observer of the importance to be derived from the existence of the greatest possible stock of the necessaries and comforts of life, produced by labour, i. e. of wealth; consequently the greatest possible inducement to production should be held out to the labourer.

"The greatest possible inducement will be the greatest possible proportion of what he has produced, that is, wherever practicable, the whole of it, less the least possible amount that shall be necessary for the purposes of protection 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 improved fertility, and cannot in the present state really rent; in the shape of exclusive permisof knowledge be distinguished from what is sion to cultivate this land so by them before cultivated; this rent also is permitted to be retained by the cultivator.

The Author then asks what are the rights involved in the consideration of the present case, which for the attainment of the object of Society, it is fitting should be established? and he proceeds fully to discuss this question of principle, from which we make the following extracts :

"The subject in question is one of property. "An examination of the question of property, and of the rights it is fitting should be established, in that regard will lead by easy steps to their application in the present instance.

"To procure the means of subsistence, and afterwards of enjoyment, man devotes himself to labour; without these means he perishes -an insufficient supply is a source of misery; -it is a good thing then that he should procure these means, meaning by a good thing that which tends to man's happiness. Having produced he must be suffered to enjoy, other wise he will soon grow tired of his useless toil, and ceasing to produce, the earth would be filled with misery.

"The enjoyment, then, of what he has produced by his labour, is among the earliest provisions of a society emerging from barbarism. Thus are established the rights of property, and a body of laws having for its object the defining and protection of these rights. So important is felt to be the production of these means, that to facilitate their production men enter into agreements with one another relating thereto. Society feeling the advantage of such agreements, perceiving the important part they play in securing enjoyment to the producer, and consequently promoting production, enforces the fulfilment of such agreements by its law. Agreements tending to promote the welfare of society are thus legally enforceable; these legally enforceable agreements are called contracts.

Mr. Leverson then argues in favour of literary property that

"There is nothing more purely the produce of labour than a discovery or an invention. To the discoverer or inventor the exclusive right thereto belongs, and, as with all other property, becomes vacant by the death of the owner; like other property, it should then be dealt with in the manner that shall be meetest for the object of society. But, it may be said, discoveries or inventions, or thoughts of any kind, are not wealth, on the unquestionable ground of the importance whereof this argument rests. True, but of all the productions of labour, none are more important, none more effectual, for the promotion of the welfare of society than they; since these very discoveries and inventions either on the one hand lead to the most effectual means of production, or they tend otherwise to gratify in the highest degree all those faculties of the mind, the gratification whereof excites that state of feeling emphatically called happiness. Hence the largest possible inducement should be held out to those labourers who may be disposed to labour in so important a field.

"Discoveries or inventions are thoughts. With thoughts unexpressed the legislator has no concern; thoughts expressed only can be dealt with by him. They are expressed either by vocal or by visual signs. Thought leads to thought, intimately and directly widely spread; there is no limit to the future benefit derivable from a single thought. It is, therefore, greatly important to spread abroad as much as possible the thought of the author, care being taken that

179

“In each case all others are excluded from enjoyment. Hands off,' exclaims society; and its reason in each case is alike. But because an inconvenience in the shape of uncertainty exists in the case of property in thought, and does not exist in a noticeable degree in the case of property in the coat, society requires the thinker to remove this uncertainty, on pain of perceiving the results of his labour become the common property of the community.

Review: Leverson's Copyright and Patents.-Finlason's Common Law Procedure. sufficient inducement be left to the thinker. | property to the tailor in the coat he has made, The right of property, then, of the author in or the price he has received therefor. his thoughts, when expressed by signs, may be, and experience teaches that it is, subject to a limitation in point of duration, by the existence of antagonistic convenience attached to the dissemination of thought, not extending to the right of property in other produce of labour. I say a limitation in point of duration, and for this reason,-other things equal that motive is least efficient, the operation whereof is most remote. Hence the abatement made from the labour inducing motives should be remote as possible; also it is that limitation, otherwise convenient to the community, being that to which the inconvenience of uncertainty is attached in the least degree.

"To the visual signs of thought the thinker may acquire right in the modes appointed for the acquirement of other species of property, failing such acquirement, he possesses still the right of property in his thought, and that alone. Can it be said, that in these thoughts others should acquire, without his consent, a right of property?

"Expressed by visual signs, the discoverer, or author, publishes his thoughts to the purchaser of their expression, at the price to which the author and purchaser agree. Of these thoughts for his own use, the purchaser of the signs by which they are expressed becomes the

possessor.

"In establishing regulations for the convenient direction and exercise of the right in this peculiar instance, the legislature should impose such regulations and limitations as would produce, on the whole, the greatest proportionate advantage, compared with the disadvantages inseparably connected with this, as with all other human actions and regulations. Whether the rights that have been established with regard to ownership of thoughts expressed by visual signs, are the meetest for the welfare of society, is not my present purpose to inquire, as it would need a complete exposition of the existing law thereon."

We must refer to Mr. Leverson's Essay for the further development of his views in support of the Common Law right of an author or inventor to the exclusive privilege "If any other means can be devised by invention. The argument is conducted with of publishing copies of his original work or which the exclusive enjoyment of the produce 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 shall thus have purchased the author's thoughts from every application thereof to any purpose of utility, would in effect put a stop to the purchase. To restrict him from their expression by vocal signs, or from the personal and manual copy of their visual expression, would in most cases be productive of far greater inconvenience than such restriction purports to prevent.

"But he who purchases the visual signs of thought, of that which he has purchased may dispose, this follows from the principles of contracts. That he who purchases these visual signs may know the vendor has title for the sale, arrangements should exist for the ascertainment of the owner,-as by registration and the like. Means also should be provided, by which such ownership shall appear on the subject of sale.

"Hence copyright, or patent-right, is not the right of multiplying copies, but the right to the produce of man's labour, often of a kind the most prolific of all labour of benefit to society.

The Common Law Procedure Acts of 1852 and 1854, with Notes containing all the Cases either already expressly decided on or tending to elucidate them. With an Appendix containing the Common Law Procedure Acts of William 4, the recent Statutes on Evidence, and the New Rules framed under the late Acts of 1852 and 1854, and an Introduction. By W. F. FINLASON, Esq., of the Middle Temple, Barrister-at-Law, Author of "Leading Cases on Pleading," Co-Editor of the Common Law Procedure Act of 1852, and Editor of "The Charitable Trusts' Act." London: Stevens & Norton. 1855. Pp. 604.

We can scarcely keep pace with the continued issue of new publications on the 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 en- the Bar on the effect of the New Statutes. joyment of whatever may be the estimate 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