intention of the testator was, that the legacy should be future, the law (and common sense supports it) says it shall not be paid, if the party does not support the character or situation required by the will. I take it the word then, in the present case, is not to be construed as an adverb of time; and I thought the question had been settled by the decisions. If it is of any weight what the opinions of the bar were, the case of Norris v. Huthwaite was decided against those opinions. The case of Pinbury v. Elkin, 1 Wms. 563, is worth looking into. The question was much discussed at the bar. The brother, in that case, died before the contingency happened, which was in favour of the executrix. In the case of 2 Ventris, 347, there cited, the cases in Swinburne, which seem contra, were over-ruled. That case was approved by Lord Parker. I do not mean to remove the rule, that where a legacy to a person requires that he should acquire a particular situation, there the legacy shall not vest; or, in the cases of portions to children, that they shall not vest: but considering the [78] present as merely a money legacy, I think it does not fall within the rule. I must therefore decree the £100 3 per cent. annuities to be transferred to the plaintiff, with interest from the death of the mother. (No Entry.)

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(1) "When legacies are given, in the nature of remainders, at future periods, which must arrive, as in the instance of a bequest to A. for life, and after her death to B., "the interests of the first and subsequent takers will vest together, and although B. happen to die before A., yet B.'s representative will be entitled after A.'s death." See 1 Roper on Legacies, 187, &c., which, inter alia, refers to the principal case. See also particularly Barnes v. Allen, Monkhouse v. Holme, and Attorney-General v. Crispin, 1 Bro. C. C. 181, 298, 300, & 386, and Walker v. Main, Rolls, 7 July, 1819.

HALE against WEBB. [1786.]

Master of the Rolls for Lord Chancellor.-[The master of an apprentice and his mother consented to cancel the indentures, and which was done under the order of the Chamberlain of London, in the Mayor's Court, who determined nothing as to any return of the fee. Bill for a return of the fee dismissed. (1)]

This was a bill filed by the plaintiff against the defendant, to whom he had been apprentice, praying for a return of a part of the apprentice-fee.

The plaintiff had been bound to the defendant, and a fee of £200 given with him. About a year after, the mother sent to desire he might be discharged; to which the master at first expressed some dislike, but afterwards consented. They went before the chamberlain, and the indentures were cancelled; but nothing was said concerning the return of any part of the apprentice-fee.

It came before the Court last term, when Mr. Madocks (for the plaintiff) insisted, that this Court had a jurisdiction over this subject, and cited for that purpose Newton v. Rowse, 1 Vern. 460, and Thurman v. Abel, 2 Vern. 64: in both which cases a return had been decreed. He said, by the custom of London, the chamberlain had an authority to discharge the apprentice, but none to direct the return of premium. The justices of peace have it by express act of parliament (5 Eliz. c. 4).

Mr. Scott (for the defendant) contended, that the chamberlain had this power, as incidental to his power of discharging, and cited 1 Salk. 68.

His Honor observed,-that no cause of discharge was stated in the bill; but that the master and apprentice disagreed. If the boy had not behaved grossly ill, he ought to have a return of part of the money; but, if the chamberlain had a jurisdiction, and had exercised it, he said he would not review it.

[79] It stood over for the purpose of examining into the jurisdiction of the chamberlain; and coming on again this term,

Mr. Recorder, Mr. Madocks, and Mr. Waller, for the plaintiff,-said, that the jurisdiction of the chamberlain only extended to the regulation of the conduct of the apprentice, not to a return of any part of the fee. That was matter of a bill in the Mayor's Court, as a court of equity, with which this court had a concurrent jurisdiction. It is unreasonable, and against good conscience, that the master should retain the whole premium, when he instructed the apprentice only for one year, especially when it is considered that the premium is for board, &c., as well as for teaching. In case of the bankruptcy of the master, a part of the premium is always returned.

Mr. Scott for the defendant. The common practice, where it comes before the

chamberlain by complaint, is for him to discharge the apprentice, and order a return of part of the fee. If the apprentice was discharged without this, he should have applied to the Mayor's Court. In the case of justices, the act gives them no authority to return the premium; but they do it as incidental to the authority to discharge. In this case, the only intention of the parties was, that the contract should be dissolved. The Mayor's Court have returned that judgment was given, upon a complaint, that the apprenticeship should be dissolved, the master having refused to receive the apprentice back; but in fact it was dissolved purely by consent.

Mr. Recorder in reply. The answer admits a discharge by consent; the certificate of the judgment is upon complaint: but this is not proved in evidence.

No answer has been given to the cases cited, to shew that this court has exercised this jurisdiction. It is sufficient for us to shew that it has exercised a concurrent jurisdiction with the Mayor's Court. (See note (1).) The chamberlain has no authority to order a return of premium; and the parties not having agreed what was to be done, equity must take place. Where the apprentice is discharged for misconduct, he forfeits. the premium; but, in this case, there is no misconduct stated in the answer on the contrary, [80] the master acknowledges he was not willing to part with him.

Master of the Rolls [Kenyon]. The facts of this case are, that Hale was bound to Webb with £200 premium. That, about a year after, the mother wished to have him discharged; which, being consented to, and it being necessary the same authority should discharge which bound him, they went before the chamberlain, where an end was put to the contract. The bill contends, that a return of premium should take place. I asked the counsel, upon what head of equity they claimed this, and I was told upon accident; but what accident has happened I cannot find out. I do not meddle with the jurisdiction of the Mayor's Court, or with the cases here; but that before Lord Jeffries (Newton v. Rowse) carried the jurisdiction as far as could be, by returning a larger sum than that agreed for. In Thurman v. Abel, the master had put the apprentice away. (Note: So in Lockyer v. Eldridge (Rep. Temp. Finch, 124), the master had treated him harshly, &c.) That has little to do with this case. Here, all the parties to the agreement are so to the dissolution. The master consented to the discharge. How is it to be understood that any thing further was agreed between them? Suppose this had been in consequence of gross misconduct, and the master agreed to the dissolution, it would be a forfeiture of the premium. Here, contemplating the whole case which was in consideration before them when they made the agreement, I cannot conceive this Court can have any jurisdiction. If it is because, secundum æquum et bonum, the master cannot retain the money, they might sue at law, since the introduction of the writ in consimili casu. The case of bankruptcy is a case of accident, and therefore this Court can relieve. On every view and ground of this case the bill ought to be dismissed. (No Entry.)

(1) This decision was undoubtedly proper. In Stephenton v. Houlditch, 2 Vern. 491, the Registrar stated to the Ld. K. and M. R. that on certiorari bills of this nature, the Court had sometimes retained the suit and determined it, but oftener sent it back to the Lord Mayor's Court.

Besides the cases above cited in the text, decrees for a return of the premium were made in two cases of great hardship by Lord Nottingham, C., Lockley v. Eldridge, and Soam v. Bowden, Rep. Temp. Finch, 124, 396. Lockley v. Eldridge is in Lord Nottingham's MSS. vol. 1, fol. 166.

CARNAN against BOWLES. [June 28.]

[Vide S. C. before Lord Thurlow, C., 1 Cox, 283.-Master of the Rolls for Lord Chan cellor.-One having sold to a bookseller a book of roads which was printed in letterpress, after the expiration of the first fourteen years sold it to another, who published the high roads upon copper-plates, and the cross roads in letter-press; as to the last an injunction was granted; the author having no resulting right as against his own assignee, after the first 14 years, and this being part of the former work, although the delineation on copper-plates is a new work. (See the note at foot of this case.)

In 1771, Captain Paterson, having prepared a book of roads, sold all his interest in the copyright of it to the plaintiff Carnan, who printed it in letter-press, at the price

of two [81] shillings. The author repeatedly improved the book, and was paid by the plaintiff for the improvements made to each edition; and the fourteen years being expired from the publication, and the author being still alive, he had the great roads engraved on copper-plates (the cross-roads remaining in letter-press) and sold the property in this improved edition to the defendant, who published it in two volumes in twelves, at the price of two guineas.

On the 22d July 1785, Mr. Solicitor-General moved, on the part of the plaintiff, for an injunction against the defendant, to restrain him from selling this book, as being the property of the plaintiff. He was supported by Mr. Madocks and Mr. Nedham.

They made two questions, 1st, Whether under the 8 Anne, c. 19, such a property had resulted to Captain Paterson, at the end of fourteen years, as he could part with to the defendant. 2dly, Whether the present publication was the same book as had been sold to the plaintiff.

By the 11th section of the act of 8 Anne, it is provided, that, after the expiration of the term of fourteen years, the sole right of printing, or disposing of copies of books, shall return to the authors thereof, if they are then living, for a further term of fourteen years; but the question is, whether the conveyance of the author's property in the copy did not convey to the plaintiff his right to that contingent return. The words of the grant are, all his right, which must convey the contingent interest in the second term of fourteen years, as well as the absolute interest in the first fourteen. The power to assign must be co-extensive with the right given by the act. It was so understood in the case of Millar v. Taylor, 4 Burrow, 2303, that Millar took the whole right for twenty-eight years, if the author should be alive at the end of the first fourteen; and the same was held lately in the Exchequer, in the case of Rennet v. Thompson, where Garth, having composed music, and conveyed his property in a similar manner with Paterson, to Thompson, upon the expiration of the first term of fourteen years, sold his second term to Rennet, who, upon Thompson's continuing to sell the music, filed his bill for an injunction and account of profits: [82] the Court of Exchequer dismissed the bill, holding the whole right to pass by the first grant, and that the second grant to Rennet was only a project. 2. The book contains the same roads; the only difference is, that one is engraved on copper-plates, the other is in letter-press.

Mr. Mansfield and Mr. Stanley for the defendants. The defendants in this case meant to act innocently. This is apparent by the great expence to which they have put themselves; and the fair construction of Paterson's grant is, that he meant to convey only what he had absolutely, the right of sole printing for fourteen years. There is not a suggestion in the bill that he meant to convey more. The expression in the act meant to secure something to authors, even against their own acts. It gives the right to authors and their assigns during the first fourteen years, and no longer, and then, by the proviso, the right shall return to the authors (not their assigns), if living; so that it is a personal bounty to the authors only. In selling the right, the author sells all that is in him, not the contingent right that may return to him. There is not a syllable in Paterson's grant that points to a contingent right; nor is there a case determined that points to the question as to the second right. In Millar v. Taylor, if Thompson had lived, the question would have been between them, not upon the common law right. No argument can be drawn from that case as to this question. The additions that he has made to it, from time to time, can have given the grantee no new right but it is natural that he should have reserved so material an alteration as this for his new period, an alteration that has varied the whole work: for, 2dly, this is as different from the former work as any two works of this nature can be. They must all be considerably alike, as being descriptions of the same places. Ogleby, Kitchen, et Britannia delineata, must all essentially be the same. Unless the plaintiff's right be very clear, the court will not enjoin the defendant not to sell, especially under the circumstances of this case, where, if the plaintiff should not ultimately succeed, the defendant can have no remedy for the delay: and where, though the work was published last Christmas, it was unattacked then; and no bill was filed till upon the eve of a long vacation, the time when books of this kind have best sale.

[83] Mr. Solicitor-General in reply. The first question with respect to the right to the copper-plates is of great consequence: the second, as to the indentity of the two works. is of little importance. With respect to the author's second term, he has an absolute and a contingent right; they are both capable of being disposed of. The counsel on the other side have stated nothing in the act to make a difference between them. The

return is only between the public and the author, not between him and his assignee. There are no negative words in the act to prevent his assigning that, as well as his other rights. In many cases, if he could not assign it, the disability would be productive of great inconvenience. This brings it to the improvements; and the question will depend much upon the nature of them. If the improvements are mere additions of what was imperfect, they are only part of the original work; if they are surveys of different roads, they constitute a new work. The additional parts here are maps; in all other respects it is an exact copy. There is no additional mental labour in the composition; if there were, we should have no ground: the alterations are merely colourable. The reason we have not applied sooner is, that until now the inconvenience has not been felt.

Lord Chancellor. My doubts are upon the improvements in the maps of those roads which were included in the former book. If a man makes a new survey of roads from actual measurement, I am not prepared to say that it is not a new work. Here it is a question, whether they are not all original works. In this case it is not an operation of the mind, like the Essay on Human Understanding; it lies in medio every man with eyes can trace it; and the whole merit depends upon the accuracy of the observation every description will therefore be in a great measure original. If this be so, every edition will be a new work; if it differs as much from the last edition as it does from the last precedent work: either all are original works, or none of them. With respect to the first point, it strikes me that the contingent interest must pass by the word interest in the grant. He conveys all his interest in the copyright: the assignment must have been made upon the idea of a perpetuity; and it is probable not a syllable was said or thought of, respecting the contingent right. They merely followed the old precedents of such conveyances. [84] It must, I think, be considered as conveying his whole right. If he had meant to convey his first term only, he should have said so. It is an extremely difficult thing to establish identity in a map, or a mere list of distances but there may be originality in casting an index, or pointing out a ready method of finding a place in a map. In the work Paterson sold to Carnan, there seems to be something of this sort of originality. It must however be referred to the Master to examine into the originality of the book. (Note: The like was afterwards done in v. Leadbetter, 4 Ves. 681 but the Court now more generally takes upon itself

:

to decide without any reference.)

The Master having made his report that the works were different, Carnan's being in letter-press, Bowles's upon copper-plates or charts, and the cross roads in letter-press : that they both contained the principal roads in England, together with the crossroads, and only the high roads in Scotland. That, in Bowles's book, the high roads in England only were engraved, and the two others in letter-press; and the only difference between them was, that the one went upwards on the page, the other downwards; and that the letter-press roads were substantially the same in both.

Mr. Solicitor, supported by Mr. Madocks and Mr. Scott, moved for an injunction on this ground, with respect to the letter-press roads only; and abandoned the first point agitated before, with respect to the claim to the second term.

Mr. Mansfield and Mr. Stanley, for the defendants, argued, that there was no ground for an application for an injunction, after the Master's report, that the works were not the same. That in a case where Sayer, the print-seller, brought an action for pirating charts, Lord Mansfield held charts not to be within the statute; and that the original application to enjoin the whole work was now lowered to the restraining the letterpress, which would just have the same effect as restraining the whole work.

Master of the Rolls. As my Lord Chancellor has referred it to the Master, he thought it not necessary for the plaintiff to establish his title at law; and that the nature of the transaction was such as to admit of an injunction. The facts appear upon [85] the Master's report. For the delineation, which is there described as different from the former book, the defendant cannot be restrained; but, if he has added any thing to it, in which he had no right, that he may be restrained from publishing. In the case of Mason v. Murray, the principal parts of Mr. Gray's poems had been published many years. Mr. Mason having published a life of Mr. Gray, in which he had introduced other poems of Mr. Gray, till then unpublished, Murray, in a new edition of Gray's poems, published those additional ones. Mr. Mason filed his bill, and had an injunetion and an account as to those additional poems. In the present case, there is no difficulty in distinguishing what belongs to Mr. Carnan; nor does it make any differ

ence that it constitutes only a small part of the publication. Suppose it was only adding plates to an edition of Don Quixote, the mere act of embellishing could not divest the right of the owner in the text. As to the delineation, the Master has reported that to be a different work; but, with respect to the letter-press, he has reported that it is nearly the same; Carnan's property is therefore certainly injured by the publication of the letter-press; as to which he must have an injunction.(1) (Reg. Lib. 1785, A. fol. 449 b, entered Carnan v. Paterson.)

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(1) See R. L. accordingly. The matter coming before Lord Thurlow, upon a motion to dissolve the injunction, Mr. Cox states his Lordship to have observed, "that as the roads of Great Britain were open to the inspection and observation of all mankind, every one was at liberty to publish the result of such observation: the subjectmatters of these books were therefore in medio: but the question will be, whether the author has exhibited any new and distinct idea in the exposition of them; and then, "whether the subsequent editor has, in substance, adopted the same. When globes were first invented, this was a new scheme of exhibiting the face of the earth, different "in substance from the plain chart. Now, then, the addition of a few places on the “globe will not make a new invention, the substratum being the same. So in the case of Newton's Milton, the Court thought that Milton's works were in medio, but the notes and other additions were not so; and therefore, as to them, restrained the pub"lication, though they left the text open to any body. Now, here, if the scheme of "exhibiting this information to the public is substantially and fundamentally the same "in the second work as in the first, and the former is merely reprinted, with such differences as not to amount fundamentally to a different project of exhibition, the "law ought to interfere and protect the exhibition. His Lordship thought the report not "sufficiently clear, and directed that it should be again referred to the Master, whether the books were the same, or whether the latter differed from the former so as to render the same a new and original work in any and what particulars."

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It is said, that Lord Thurlow afterwards dissolved the injunction generally; thinking the second work, though containing the same matter, original in itself. See 5 Ves. 25. Cary v. Faden, 5 Ves. 24, was determined under a similar impression; but such doctrine appears very questionable, and has been over-ruled by later very sound determinations. Lord Eldon, C., has often granted and maintained injunctions against parties publishing, in any work common to each party, any matter which has been the composition of another; as in the instance of Trusler's Chronology, the case of a work, called "Time's Telescope," &c. In a case of doubt, the Court has of late directed the plaintiff to bring an action, and maintained the injunction in the meanwhile. See King v. Reed, 8 Ves. 223.

In a plain case of piracy, Pinnock v. Rose, Lincoln's Inn, 10 July 1819, Sir J. Leach, Vice Ch., directed the injunction to "restrain the publication of any works or work in "which the matter of the plaintiff's publication, or any part thereof, was verbally or “substantially introduced."

STEBBING against WALKEY. [1786.]

[Vide S. C. 1 Cox, 250.-Master of the Rolls for Lord Chancellor.-Residue of 3 per cent. annuities given to the two daughters of T. S. He had three daughters [when the will was made]: they shall all take equal shares. (See 1 Roper on Legacies, 114.) [Mary Stebbing gave to the two daughters of Mr. Titus Stebbing £10 each; and appointed her mother in law, Margaret Harriet Stebbing, executrix. The said Margaret Harriet Stebbing, by her will] gave £82 3 per cent. annuities, the residue of £182 annuities, in trust, to pay the same unto and between the two daughters of [the said] Titus Stebbing, in equal shares and proportions, during (" so much of the term to come therein as they should live," &c. Reg. Lib. and 1 Cox, 251) their lives, and, if either of them should die (" before the expiration of the said term." Reg. Lib. and 1 Cox, 251), then to pay the whole to the survivor of them; and, in case both should depart this life (" before that time." Reg. Lib. and 1 Cox, 251), then the whole was to fall into the residue, and she appointed Walkey and Ritson residuary legatees [and joint executors of her will].

Titus Stebbing had three daughters, the plaintiffs.