tions, as the nature and circumstances of the case may require.

of

Date

(Form of Order.)

In the matter of

and

In the matter of the act (8 & 9 Vict. c. 56), &c. Whereas

did on the day prefer his petition to the Right Honourable thereby setting forth, and praying, that he might be at liberty to make permanent improvements in the lands therein mentioned, under the provisions of the said act; and thereupon his Lordship, on consideration of the matter of the said petition, did, by his Order, dated the day of refer it to the Master to make the inquiries therein mentioned; and, in pursuance of the said Order, the said Master has made his Report, dated the day of , and the said Report was duly filed in the Report Office, on the day of and no application has been made that the same may not be confirmed: And the said A.B. doth now, by his Petition, pray that the same may be confirmed, and that he may be at liberty to make such permanent improvements as are specified in the said Report, under the provisions of the said act: his Lordship, on consideration of the matter of the said Petition and of the said Master's Report, doth hereby order that the said Report be confirmed, and that the said Petitioner be at liberty to make such permanent improvements in the said lands as are in the said Report mentioned, under the provisions of the said act.

XVII.-The Master by whom the Report was made may, upon production to him of the order confirming the same and giving leave to make the improvements, deliver to the party who has obtained such order a Certificate to the effect and in the form hereinafter stated, with such variations as the nature and circumstances of each case may require. (Form of Certificate.)

Date

In the matter of

and

In the matter of the act (8 & 9 Vict. c. 56), &c. Whereas [Recite, 1st, the Order of Reference;

2nd, the Report;

3rd, the Order confirming the Report, and authorizing the improvements to be made;] Now, therefore, I, the said Master, in pursuance of the said act, do hereby certify, that any person advancing money for making the said permanent improvements specified in my said Report will, upon its being made to appear to me that such money, to the amount specified in my said Report, has been fully expended in making the said improvements, or in paying the expense of obtaining the authority of this Court, become and be entitled to a charge on the inheritance of the land for the repayment of the money advanced, with interest; but such charge is to be subject to the terms and conditions provided by the said act, and before the

same can become effective, the amount of money expended as aforesaid is to be stated by me by way of indorsement on this Certificate.

XVIII. Such Certificate is to be made in duplicate, and one copy thereof is to be filed in the Report Office, and the other copy thereof is to be delivered to the party.

XIX. Upon the application of any party to whom such Certificate may have been granted, the Master may inquire what sums of money have been bond fide and truly expended in making such permanent improvements in the said land as are mentioned and certified to be proper in his said Report, and in defraying such expenses as are in the said act mentioned, and upon what terms as to interest and repayment by instalments the money was advanced; and the Master, having duly inquired into the matter, and being satisfied by proper evidence, may make an indorsement on the said Certificate to the effect and in the form hereinafter set forth, with such variations as the nature and circumstances of each case may require.

(Form of Indorsement.)

Whereas it has been alleged before me that the sum of £ being the whole [or part] of the sum of £ mentioned in my Report recited in the within Certificate, has been expended in making such improvements and paying such expenses as are therein mentioned. I have, pursuant to the liberty given to me by the said act, inquired what expenses have been incurred in and about the application to the Court, and making the necessary surveys, valuations and estimates, and also what sums of money have been actually expended in such improvements; and evidence as to such expenses hath been laid before me, and I have duly considered the same; and I do hereby state and certify that it hath been made to appear to me that the sum of £ hath been fully expended

in manner aforesaid in such expenses as aforesaid, and the sum of £ for improvements by drainage, warping, irrigation or embankment, and the sum of £ for improvements by the erection of buildings: And I do hereby further certify that the said several sums amount in the whole to the sum of £ and that the same

was [or were] advanced on, &c. [or at such several times and in the several sums hereinafter set forth, viz. &c.]; and that such several sums are to be repaid, with interest after the rate of per cent. per annum, by such equal annual instalments as are hereinafter mentioned, viz. &c. &c.

XX. The Indorsement is to be made in duplicate, and one copy thereof is to be written on the party's Certificate, and delivered to him; the other is to be filed and annexed to the copy of the Certificate filed in the Report Office.

XXI.-All orders made by the Master of the Rolls or any Vice Chancellor are subject to be discharged or varied by the Lord Chancellor on petition to him for that purpose.

LYNDHURST, C. LANGDALE, M.R,

NEW SERIES, XV.-CHANC.

R

K. BRUCE, V.C. Jan. 13.

PIERCE v. FRANKS.

tion.

The bill alleged that the defendant sold brushes, on which the trade mark of the plaintiff was stamped, and prayed for an account and an injunction. The plaintiff, directly after the filing of the bill, obtained the usual injunction. The defendant by his answer stated, that he had sold such brushes on two occasions only, when he believed that he had sold them to agents of the plaintiff; that he had had no intention to sell them without the leave or to the injury of the plaintiff; and that, if the plaintiff had made any application to him, he would have undertaken never to stamp any articles with the plaintiff's trade marks. The plaintiff set the cause down on the answer of the defendant, without entering into evidence; and, waiving the account, asked for a perpetual injunction Held, that there had not been any unnecessary litigation on the part of the plaintiff ; and that he was entitled to a perpetual injunction and the costs of the suit.

The bill alleged that the plaintiff was in the habit of selling tooth-brushes and nailbrushes, on which were stamped the words, "Smyth's, Bond-street," that being a trade mark to which he was entitled. The bill also alleged that these tooth-brushes and

The bill then alleged that the defendant made and sold brushes which were stamped with the letters "Smyth's, Bond-street," and also with the above-mentioned private trade marks. The bill prayed for an injunction and an account in the usual manner. After the bill had been filed, the plaintiff moved for, and obtained an injunction to restrain the defendant from selling brushes on which the words "Smyth's, Bond-street," were stamped. The affidavit in support of the motion verified the statement as to the words "Smyth's, Bond-street," but did not notice the private marks.

The defendant by his answer stated that one Whitaker had called on him, and given an order for tooth-brushes and nail-brushes, and asked him to put thereon the words "Smyth's, Bond-street"; that the defendant, believing Whitaker to be an agent of the plaintiff's, executed the order accordingly; that afterwards one Kirton, who stated that he had been sent by Whitaker, had called and given a similar order, which was also executed; that these were the only occasions on which he had sold such brushes; that he had had no wish or intention to use this stamp or impression without the leave of the plaintiff or to his injury, and had never intentionally so used it; that the least intimation

from the plaintiff to him on the subject, would have rendered the bill wholly unnecessary; that, if the plaintiff before the bill filed had made any application or request on the subject to the defendant, the defendant would readily have undertaken not to make or stamp any brushes or any articles used by perfumers with the words "Smyth's, Bondstreet," or sell brushes or other articles so marked or stamped, and would have given up the stamp or impression for stamping these words, or destroyed the same, as he was ready and willing then to do. The defendant denied that there were any private trade marks on the brushes; the other marks on the brushes being generally used in the trade. The defendant submitted that the suit was unnecessary, and had been vexatiously instituted, and that the plaintiff ought to pay the costs of it.

The cause was set down by the plaintiff to be heard. The plaintiff, relying on the admissions in the answer, did not adduce any evidence. The plaintiff waived the account, and asked only for a perpetual injunction.

Mr. Wigram and Mr. Erskine, for the plaintiff.

Mr. Swanston and Mr. Beales, for the defendant, contended that the suit was unnecessary, and ought not to have been inIstituted under the circumstances stated in the answer; and that, at any rate, the plaintiff ought not to bave brought the cause to a hearing. They cited

Barfield v. Kelly, 4 Russ. 355.
Croft v. Day, 7 Beav. 84.
Millington v. Fox, 3 Myl. & Cr. 338.

66

KNIGHT BRUCE, V.C.-[after stating the circumstances, and deciding that the plaintiff was entitled to a perpetual injunction.]-As to the costs, I had at first some doubt what might be the effect of the case of Millington v. Fox. I should be unwilling to depart from any principle laid down in that case. Lord Cottenham says, "I am very much disposed, as a general rule, to make the costs follow the result; because, however doubtful the title may be, or however proper it may be to dispute it, it is but fair that the party, who really has the right, should be reimbursed, as far as giving him the costs of the suit can reimburse him. But then there is another object which the Court must keep in view, namely, to repress unnecessary

litigation, and to keep litigation within those bounds which are essential to enable the parties to vindicate and establish their rights." Now, I agree in terms with everything here said. The question then is, whether there has been any unnecessary litigation on the part of the plaintiff. I cannot say that there has been. It appears to me, that as far as the plaintiff is concerned, litigation has been kept within bounds, and that he is entitled to the costs of the suit; subject, however, to this observation : there is an assertion in the bill as to private marks, which is without foundation. The costs may have been increased by this allegation, and, if so, I think the defendant is entitled to such costs as may have been thus occasioned.

Orders of May 1845- ReplicationPublication.

The replication, the form of which is contained in the 93rd Order of May 1845, is the replication intended by the 111th of those Orders; and therefore where a subpoena to rejoin under the old practice had been served previously to the operation of those Orders, it was determined that publication did not pass under the 111th of those Orders, and that an order of the Court was necessary for that purpose.

Unless a good objection be shewn, the Court will in a case like the present, direct publication to pass.

Where a replication only, according to the old practice, has been filed, a replication in the new form (1) may be filed for the purpose of putting the cause at issue.

This was a motion to dismiss for want of prosecution. The plaintiff filed his replication on the 1st of November 1844, and the subpoena to rejoin was served on the 28th of May 1845, and no step had been taken in the cause since that time.

Mr. Kindersley and Mr. Steere, in support of the motion, contended, that consistently with the New Orders of the 8th of May

(1) Vide Order 93. of New General Orders of the 8th of May 1845. Ord. Can. 319; 14 Law J. Rep. (N.S.) Chanc. 293.

1845 (2), publication passed without rule or order on the expiration of two months after the filing of the replication, which, in the present case, was on the 1st of November 1844; and that the defendant was entitled to move to dismiss under the same Orders (3), in case the plaintiff failed to set down the cause, and obtain and serve a subpoena to hear judgment within four weeks after publication had passed. In support of the motion, Lovell v. Blew (4) was cited.

Mr. J. Anderson, contrà, contended, that the New Orders of 1845 were not retrospective, and began to run only from the 28th of October 1845 (5); and that even if those Orders applied to this case, publication could only pass on the 23rd of December 1845; from which day the plaintiff was allowed four weeks to set down his cause, which period of four weeks (including the Christmas vacation,) would not expire before February next. It was further contended for the plaintiff, that the new rules of 1845 had no application to the present case; and that the plaintiff must proceed according to the old practice, as no new replication under the New Orders could be filed in the present case.

Jan. 23, 1846.-The MASTER OF THE ROLLS, having reserved his judgment, expressed his opinion that the motion ought not then to be granted; and added, that the replication mentioned in the 111th of the New Orders of the 8th of May 1845, was a replication in the form directed in the 93rd of those Orders; that no such replication having been filed by the plaintiff, publication did not pass without rule or order, and therefore the 4th article of the 114th Order did not entitle the defendant to make the present motion; that the replication required by the 93rd of the New Orders of the 8th of May 1845, had the effect of putting a case completely at issue, and might be regularly filed for that purpose, where replications only had been filed in the old form before the 28th of October 1845; that

(2) Vide Order 111. Ord. Can. 329; 14 Law J. Rep. (N.S.) Chanc. 295.

(3) Vide Order 114, art. 4. Ord. Can. 330; 14 Law J. Rep. (N.s.) Chanc. 295.

(4) 13 Sim. 492; s. c. ante, p. 31.

(5) Vide Order 3. of Orders of the 8th of May 1845. Ord. Can. 273; 14 Law J. Rep. (N.S.) Chanc. 282.

where the subpoena to rejoin had issued and been served before the 28th of October 1845, replication in the new form had no office to perform, and was not to be filed; that in the present case the cause was properly at issue; and the only thing now to be done, was to pass publication, which might be by order; that, unless good reason could be adduced why publication should not then pass, his Lordship expressed his opinion that, on the present application, he might make an order that publication do pass; and that after the proper time had elapsed the defendant might, if necessary, renew his motion to dismiss the bill.

Costs Unopposed Petition Fees of Counsel-Taxation.

Where the subject-matter of a petition is of a very complicated and intricate character, the costs of two counsel for the petitioner will occasionally be allowed, although the petition is unopposed.

This was the petition of the surviving plaintiff in the suit, and prayed the reviewal by the taxing Master of the petitioner's bill of costs, charges and expenses. The suit was instituted by the trustees and executors appointed by the will of Ann Dimsdale, for the administration of her estate. By the will the testatrix gave a number of pecuniary legacies, and weekly and other annuities to poor persons, and also specific legacies, and bequeathed the residue of her estate to ten charitable societies. A question arose in the suit between the testatrix's heir-at-law and the charities (1), and a final order was made in June 1843, for winding up the suit, which was duly prosecuted. In May 1845, the plaintiff, under a power contained in the testatrix's will, applied to the Court to be released from the trusts of the will, and for a reference to the Master to appoint new trustees. The application having been granted, and the Master having

(1) Sturge v. Dimsdale, 6 Beav. 462.

reported and approved of new trustees, the plaintiff petitioned for an order, confirming the Master's report, which was granted, there being no opposition thereto; and the Court directed the taxation of the costs of and incidental to the petition and the proceedings thereon. The Master, in taxing the petitioner's bill of costs, disapproved of the employment of two counsel by the petitioner, and disallowed so much of the costs as related to the employment of one of those counsel, amounting altogether to the sum of 10l. 7s. 8d. The plaintiff's petition stated the testatrix's will and the proceedings in the suit at considerable length.

Mr. Kindersley, in support of the petition, contended, that where a party applied to the Court to be discharged from onerous trusts, all the circumstances must necessarily be stated, which justified the application and the payment of the costs out of the estate, the subject of the suit; that the present case was one in which the fees of two counsel ought to be allowed in taxation, as unless all the proceedings taken for the appointment of new trustees were strictly regular, the petitioner would still remain liable to the trusts of the will bequeathing so considerable a sum as 25,000l. amongst numerous parties; that the retainer of senior counsel rendered briefs to separate counsel necessary; that the case was one demanding much care on the part of the petitioner, and in which persons were looking out to see that the proceedings were regularly conducted; that it was quite a mistake to suppose that considerable care and attention was not very frequently to be exercised in an unopposed petition, and that it was necessary to state in the present petition, as well the testatrix's will, as the manner in which the funds had been dealt with.

Mr. Bacon, contrà, for two of the charitable societies, respondents to the petition, and taking large legacies under the will, observed that the taxing Master, when allowing the fee to one counsel, thought he had done as much as the nature of the case and reason justified, all differences between the parties to the suit having been long ago finally settled; and added, that nothing remained to be done in this case, except to inform the Court what had been already done; that the present petition was of very improper length, and might have been pro

perly comprised in two, instead of sixteen brief sheets; and that the retainer of one counsel, under the circumstances, formed no reason for the allowance of fees to two separate counsel.

Mr. Kindersley, in reply.

The MASTER OF THE ROLLS.-I shall not make any order on this petition, until I have had a communication with the taxing Master, in order to ascertain the grounds on which he has thought it right to disallow the costs in question. Unopposed petitions often involve the disposition of large sums of money, and demand great attention; and if I had not the assistance of experienced counsel I should be unable, frequently, to come to a satisfactory conclusion on them. The aid of junior counsel, also, in these cases depending on a variety of circumstances, is often as important as that of the senior; and it would therefore be unsafe to lay down any general rule on the matter before me. The annual payments out of court amount to no less a sum than four millions of money, and the annual transfers of stock by the Court, are also very considerable; but still cases may occur so clear and plain, that orders may be made on them, as of course, and without the intervention of counsel; but the present is not a case of that kind, requiring as it does the surviving trustee appointed by the will to be properly released from the trusts therein contained. I am desirous to know the reason for the Master's conclusion in this case. I do not rest the matter on the ground of retainer of counsel, but assistance which the Court is entitled to receive may make a difference. There are cases in which the assistance of both senior

and junior counsel is equally necessary. I have known attempts made to explain petitions which have failed, and in which the petitions have been directed to stand over for the aid of senior counsel. Experience, knowledge, and skill, united, are necessary in laying a case properly before the Court, and in the absence of those requisites, there may be a failure of justice, and money may be paid out of court to persons not entitled to it, to the great prejudice of others, which could not be repaired.

On the 15th of January 1846, the MASTER