COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5518, 3 December 1878, Page 2

COURT OF APPEAL.

Monday, December 2. The Court sat at 11 a.m. HOLT AND ANOTHER V. WEBB. The Court delivered judgment. Chief Justice Prendergasfc : This is a demurrer to the plaintiffs* declaration, in which the plaintiffs state it is their business to procure, and they do from day to day procure at great cost, through their agents abroad, telegraphic abstracts of foreign news, and that it is part of their business to supply, and they do supply, to newspaper proprietors copies of these abstracts for publication in their papers; and that the plaintiffs grant licenses for such publication in consideration of payment for the same ; tint the defendant is a newspaper proprietor; that the defendant, well knowing' the premises, without license from the plaintiffs has for some time past from time to time published in his newspaper all the said abstracts supplied to newspapers licensed by the plaintiffs, or extracts therefrom, or abstracts thereof, and that the said unauthorised publication is calculated to depreciate the value [of the licenses granted by the plaintiffs and to be injurious to the plaintiffs; that the plaintiffs'have requested the defendant to discontinue the unauthorised publication of such abstracts, but the defendant has continued to do so, and threatens to continue such unauthorised publication ; and the declaration concludes with a claim that the defendant may be restrained from publishing as news in his paper any of the abstracts of news supplied by the plaintiffs to other newspapers. To this declaration there is a demurrer on three grounds :—lst. That no equity is shown entitling the plaintiffs to an injunction, 2nd. That the reprinting from a newspaper of news is not an actionable wrong. 3rd. That there is no copyright in news published in a newspaper. It seems to me clear that the claim of the plaintiffs is for an injunction to restrain the defendant from printing and publishing in his newspaper copies of or extracts from such telegraphic abstracts of news as may hereafter be sent from abroad and published in newspapers licensed by the plaintiffs. This being so it is also clear that they are seeking the protection of this Court of a species of property which at present has no existence, and may not have any existence. In Platt v. Walters, 17 L.J. N.s. ch. 157, it was held that that protection given by the common and statute law which is called copyright, is only in respect of some already published or some composed and not yet published literary production, and therefore that there can be no copyright in a prospective series of a newspaper. And further, that though copyright may attach upon each successive publication, yet that which has no present existence as a publication cannot be the subject of the species of property called copyright. The plaintiffs* claim, whether well or ill-founded, is infringement of an alleged copyright, which may be defined to be the right, to the sole printing, publishing, and selling of something intellectual, communicated by writing or letters, I have not thought it necessary to give an opinion on the various questions which were raised in the argument, and found my judgment on the simple ground that the plaintiffs do not seek the protection of an existing copyright. I think the demurrer must be allowed, with costa. Mr. Justice Johnston : It was attempted in argument to establish an equitable title or right in the plaintiffs, irrespective of the law of copyright, entitling him to the exercise of the equitable jurisdiction of the Court, to restrain the 1 defendants from future infringements of that right. It was suggested that this is a case in which the plaintiff, by their arrangements, implying skill, care, and expenditure of and by themselves aud their agents in various parts of the world, have procured the means of imparting to the public information conveyed by means of the telegraphic system, of interesting recent news ; that the plaintiffs, in order to carry on this business aud make gain by it, grant to newspaper proprietors, for reward, licenses to publish the same immediately and simultaneously ; and that if other newspaper proprietors copy the telegrams which are published by the licensees, they are procuring profit for themselves through the skill, labor, and expeuditurejof the plaintiffs, without giving them any equivalent. To this it must be answered that in the absence of any contract between two parties, if one of them does an act, either in pursuance of a contract with a third party or otherwise, whereby the second party may or does get an advantage or benefit which ho would not otherwise have had, the first party has no claim against the second unless the latter has infringed some right vested in the former. Many cases could be suggested in which a person may derive benefit from the acts of another which have cost that other labor and money, and yet the party incidentally benefited violates no right, and cannot be called upon to pay any remuneration. The right which the plaintiffs really possess with respect to these telegraphic abstracts is one which Is often called copyright, though with questionable propriety. The word copyright, as remarked by Maule, in Jeffrey v. Boosey (4, H. of L. 814), is used with respect to two different sorts of right: 1. The right which a man has to his writings before their publication; and 2. the right of multiplying copies after their publication. The latter is the sense in which the word copyright is evidently used by Lord St. Leonards and Lord Brougham, in the same case, when they deny that copyright existed at common law. And Lord St. Leonards draws the distinction between the right to manuscripts and . the right to multiply copies of them; aud it iathe fatter which that

case affirms to exist only by statute. Now the first species of copyright—that which, exists at common law—the plaintiffs in this case must bo taken ex conceitsti to possess. It is not doubted that the arrangement and abstract of telegrams derived from various sources, the result of skill and cost, are, when reduced to the form proper for publication, the property at common law of the plaintiffs, and that any abstraction of them, or unlicensed first publication of them by any one, would bo a wrong done to the plaintiff which might be remedied at law or in equity. In a very recent case it is said that the Poet Laureate of England having heard that verses of his . addressed privately to a friend were about to be published, applied for an injunction, to restrain the publication, and a perpetual injunction was submitted to. Here there can be no doubt that the plaintiffs would bo entitled to restrain any but a licensee from publishing their telegrams beforejpublication by themselves or any of the licensees. But when once any one of the licensees has published the abstracts, the com- ■ mon law right is gone, and no one has a right to complain of the multiplication of copies except the possessor of the copyright under some statute. Now, supposing there were a statute in this colony giving copyright in newspaper articles or paragraphs, to whom would it be given ?. I apprehend it would be the property of the first publisher unless he had procured the MS by such an infraction of the plaintiff’s common law right as would be good ground for action or injunction. But here it is assumed that the first (and probably contemporaneous first) publishers are persons who have paid for a license, and therefore publish innocently. They may be injured in one sense by the competition of unlicensed publishers who get the advantage of what they have paid to the plaintiffs, but they cannot complain, as it was competent for the plaintiffs to license every newspaper in the colony ; and since it is emphatically laid down by Lord St. Leonards,in Jeffreys v. Boosey(at p. 992), that it is clear that copyright is one and indivisible, that it may be transferred but it cannot be divided, it cannot be said that any of the licensees, or all of them together, is or are the owner or owners of the copyright. Then, the publication was not made by or on behalf of the plaintiffs. I cannot see how the plaintiffs can be treated as owners of the copyright after publication, even if it could be held that the Ordinance of New Zealand or the statute of Anne or George 3rd, if they were applicable to the colony, which I do not think they are, created a copyright in newspaper paragraphs. I think, therefore, it is unnecessary to discuss the questions arising on the statutes. The Victorian cases cited differ from the present in this respect, that the compilers of telegrams there, the plaintiffs, were the proprietors of a newspaper in which they were published contemporaneously with publication by the licensees, and the despatching of copies of them In one of the cases by telegraph enabled the defendant to publish them in a place where the plaintiffs' paper circulated before it arrived by post, to the evident detriment of the plaintiffs, and in Victoria there was a statute in force respecting copyright in

newspapers. But lam also of opinion that as there can be no copyright the infringement of which can be actionable or restrainable till the subject matter of it ia published, or at least composed, there can be no copyright in matter such as prospective telegraphic abstracts of the plaintiffs expected to be received and prepared by the plaintiffs, and which it is expected will be published in the defendant’s paper, and therefore that there can be no injunction to restrain the possible or probable publication of them. For these reasons I am of opinion that the demurrer to the declaration must be allowed. Mr. Justice Williams ; The plaintiffs day by day obtain at considerable cost from their agents abroad through the telegraph abstracts of news compiled by these agents. Copies of these abstracts are supplied by the plaintiffs to certain newspapers in New Zealand, who pay the plaintiffs for the right to publish them. It is alleged that the defendant without authorisation by the plaintiffs is in the habit of copying in his newspaper these abstracts of news from newspapers duly authorised by the plaintiffs to publish them. The plaintiffs seek an injunction to restrain the defendant from so copying these abstracts. The plaintiffs claim, if it exists, is based upon copyright properly so called. The matter the defendant is stated to have reprinted had been already published, and the right claimed by the plaintiffs is the right to restrain the defendant from multiplying copies of what has been published. A right so to restrain the defendant must of course arise from the circumstance that the plaintiffs themselves or their licensees have the exclusive right to multiply copies, in other words, that they have the copyright, Copyright in New Zealand is governed exclusively by the Copyright Ordinance of 1842, The English Acts passed before New Zealand became a separate colony were clearly never in force here, and if there was ever any copyright at common law, the Ordinance of 1842 would sweep it away here, as the statute of Anne did in England. The simple question ia whether the plaintiffs can bring themselves within the terms of the Ordinance, By that Ordinance the author of any book which shall have been printed or published, and his assignees, are entitled to the copyright of it for 28 years from the day it ia first published. The plaintiffs therefore have to establish first that they are the authors of these abstracts of news; and secondly, that these abstracts when printed and published in a newspaper are a book witbin the meaning of the Ordinance. Now, the plaintiffs state that these abstracts of news were compiled by their agents at the expense of the plaintiffs. This would probably be sufficient to constitute the plaintiffs the authors. These abstracts when published of course appear with the other news in the newspaper. The other question therefore depends on whether a paragraph in a newspaper can be held to be a book. If the abstract had been published originally on a slip of paper in a separate form then it might have been a book within the Ordinance, but it would be an unjustifiable use of language to say that each separate paragraph of a newspaper must be held to be a book, so as to confer a copyright on the author. As I am therefore of opinion that our judgment must he for the defendant, it is unnecessary to decide whether, even if the plaintiffs are entitled to a copyright in these abstracts when published, they are entitled to the injunction they seek. It appears to me, however, that the plaintiffs are (seeking to restrain the infringement of a right which they have not yet got and may never get. Their right arises out of the fact of publication, and commences from the time of publication. What they ask is that, although they have no right at present, yet that the defendant may be restrained from infringing their right if ever they obtain it. I have always understood that the jurisdiction of the Court to restrain by injunction an infringement of copyright was in aid of a legal right, and as was said by Lord Ootfcenham, in Saunders v. Smith, 3 Si. and C. 728, that the office of the Court was consequent upon the legal right. The right of the plaintiffs is not a continuing right, as the right to a running stream mentioned by tho learned Judge in the Victorian case. There, the right with the stream, “ Lahiiur et labetur in omne volub&is aevum Here, each separate abstract when published would create a right commencing at a different time and entirely distinct from and independent of the right arising from the publication of any other abstract, I think the demurrer must be allowed. Mr. Justice Gillies ; The contention of the plaintiffs in this case is that they, being the composers or compilers of a certain literary work called a telegraphic srapmary of news which they had authorised certain persons to publish and which had been so published, are entitled to restrain any other persons except those allowed by them from publishing copies of the same. They, in fact, claim to retain a copyright in their compilation after it has been published by persons authorised by them so to publish it. That the plaintiffs bad such a right of property in their compilation as would entitle them to restrain tho publication thereof so long as it was in manuscript will not be doubted. That is not properly copyright; copyright only attaches on publication. The

question is whether, after publication by any one duly authorised to publish, the plaintiffs retained such a right of property as would entitle them to restrain others from multiplying copies. Now I entirely agree with those learned Judges who have held that copyright in literary productions is the creature of statute, and did not exist at Common Law. This being so, the only statute on which the plaintiffs can base their supposed right is our Copyright Ordinance of 1842, which grants a copyright in New Zealand for 28 years to authors of books, I cannot, however, assent to the argument that book includes a newspaper and every paragraph in a newspaper. The usual characteristic of a newspaper and of the ' literary productions it contains is that they arp ephemeral, and not intended by their authors to survive for 28 years, although no doubt a book might be published in the first instance in a newspaper. It seems to mo that the publication of any compilation of news in a newspaper is a dedication of it to tho whole world, and in the absence of any statutory prohibition any ope {s at liberty to reproduce copies thereof.

The Victorian oases show that in that colony it was thought necessary to pass a statute to confer the copyright in such productions upon their authors or compilers. I therefore agree that the demurrer ought to he allowed. BEOINA V. SELL. The judgment of the Court was as folio ws; — In this case tie prisoner was indicted for the offence of shooting at with intent, under the 15th section of the Offences Against the Person Act, 1867. By that section, so far as matt dal to the case, it is enacted that “ whosoever shall shoot at any person,” &0., with tho intent therein mentioned shall be guilty of felony. In the indictment the instrument used was specified as “ a certain revolver then loaded with gunpowder and divers leaden bullets.” As it was contended that it was necessary to prove the instrument used as laid, and that it was loaded as described in the indictment, the jury was asked, in the event of finding the prisoner guilty, to say whether tho instrument and loading were proved as laid. They found the prisoner guilty of shooting at the prosecutor with some sort of firearm with intent, &c., but that it was not proved to have been loaded with leaden bullets. The question is whether this amounted to a general verdict of guilty, and whether the conviction can be supported. In the common forms of indictments for this offence to be found in Archbold’s Practice and other books of precedents, the instrument used and the loading are specified, and in Regina v. Hughes, 5 0. and P. 126, where the indictment was under a provision of a statute similarly worded to the provision above mentioned, and. in which indictment in all the counts it was averred that the shooting was with a pistol, and that tho pistol was loaded with powder and a leaden bullet, it was held by Park J. (Parke and Holland) that it must appear that the pistol was loaded with a bullet, or the prisoner must be acquitted ; and it was held by Platt 8., in Regina v. Cox, 3 Cox, C.C. 58, where the indictment was on a statute similarly worded, that it was sufficient to say “ with a certain loaded gun,” without going on to state with what it was loaded.

In neither of the cases was it suggested that it was unnecessary to mention the instrument at all, and the case of Regina v. Hughes must be considered as an authority for the necessity of specifying the instrument ; at any rate that, if specified, it must be proved as laid. Bat ia Regina v. Briggs, 1 M. 0.0., 318 ; 1 Bewin's C.C., 61, it was held that in an indictment for the statutory offence of wounding with intent the iastrumenb or means by which the wound was inflicted need nob be stated, and, if stated, the statement does not confine the prosecutor to prove a wound by such means. The reason for this latter decision was that the statute was general and did not require that the particular instrument should be mentioned ia the indictment. So in the present case the words of the statute are general. The rule of pleading with regard to statutory offences is that the statute contains a definition of the offence. In this case the offence is the commission of a certain act—“ shooting at” another person with intent; but no other circumstance is mentioned. This being so, it would have been sufficient if the indictment had not specified the instrument and described the loading, and for this Regina v. Briggs, supra, is an authority ; bub a* tho indictment does specify the instrument and the loading, is the prosecution limited and bound to the proof of what has been unnecessarily specified in the indictment ? Again Regina v. Briggs, supra , is an authority that the prosecution is not so bound.

The case just referred to is, we think, a sufficient authority for holding that the prosecutor was not in this case confined to prove the firearm and loading as deacribled in the indictment. It is sufficient if the averment is substantially proved, even where the averment is material.

In cases of homicide, before the statutory provision making ic unnecessary to allege in indictments for murder or manslaughter the means by which the death was caused, it was not material with what weapon the wound was caused. See Hawkin’s Pleas of the Crown, B. 2 Ch. 46, sec. 183—“ And therefore it is agreed that if one be indicted or appealed for killing another with a sword and upon evidence it appear that he killed him with a staff, hatchet, bill, or hook, or any other weapon with which a wound may be given, he ought to be found guilty, for the substance of the matter is whether he gave the party a wound of which he died; and it is not material with what weapon he gave it, though for form’s sake it be necessary to set forth a particular weapon.” Now the material matter is whether the instrument was a firearm and loaded so as to be capable of inflicting grievous bodily harm. The jury by their verdict find that the instrument used was a firearm ; they also find the intent, and though they do not find that the loading was as described in the indictment, their finding is that it was loaded so as to be capable of inflicting grievous bodily harm; consequently they find all that is material, that is, a firearm loaded so as to be capable of inflicting grievous bodily harm. In Regina v. Oxford, 7 C. and P., though the indictment alleged shooting with a pistol loaded with a bullet, it was considered that all the jury had to be satisfied of was that it was not loaded with wadding only. We are therefore of opinion that from either point of view the conviction should be affirmed.

If it was proper ia this case to aver the means, then the proof substantially supports the averment, which is shooting by means of firearms loaded so as to bo capable of doing grievous bodily harm. We are, however, of opinion that it was not necessary to aver the meant, and though averred, that the prosecution was not confined to its proof. The conviction is therefore affirmed. DIVE (PLAINTIFF) AND PICKERING (DEPENDANT.! The judgment of the Court in this case was as follows ; This is a demurrer to the declaration in an action on an award. The declaration states that the plaintiff, the defendant, and one Owen entered into partnership as storekeepers under a deed which is in part set out in the declaration. The deed recites that the plaintiff had delivered in as stock £IOOO, and that the defendant and Owen had agreed to give the whole of their time to the business. Amongst other provisions it was agreed that the partnership should continue “ so long as they should live that the name of the firm should be Dive and Co. while the plaintiff remained a partner, but if ho withdrew then his name should not be used without his consent; that the expenses and losses should be paid out of the capital and profits, and if those proved deficient then to be borne by the partners in equal shares. In the deed is an arbitration clause by which it is provided that in case any dispute, doubt, or difference should arise between the said partners touching the said business or any other thing in the deed contained or in any wise relating to the said partnership business or tho affairs thereof, the same should bo referred to arbitration as therein, provided. It appears that the partnership commenced in October, 1874, and that it was dissolved by mutual consent in January, 1878. The declaration alleges that tho dissolution was “ upon the terms of a memorandum in writing.” This memorandum is set out, and appears to be in the form of a notice that the partnership bos been dissolved on the date of the notice by mutual consent, and that “ All accounts due to the said firm must be paid to H. E. Dive, who will liquidate all liabilities belonging thereto.” The declaration alleges that at the time of the dissolution the firm was indebted to the plaintiff, as the defendant knew, to the extent of £2400, and that the defendant was indebted to the firm in tho sum of £l7O Is. lid. for goods, &c., supplied to him in excess of his share of the profits and exclusive of his share of tho losses of the firm.

That the plaintiff in pursuance of the memorandum proceeded to get in the debts due to and to pay tho liabilities of the firm, and applied to defendant to pay to him the amount due from the defendant to the firm, but, as is stated in the declaration, tho defendant has not paid the same. That disputes, doubts, and differences arose between tho plaintiff and defendant (Ist) “ as to the amount duo by the defendant to the firm," and (2nd) “ as to his liability to pay tho samo to the plaintiff," and (3rd) " as to tho value of tho book debts duo to tho firm," and (4th) “ the mode of realising tho same.” The declaration then proceeds to allege thattbo stops provided for in tho arbitration clause for obtaining an award on theso matters were taken and an award mado ; and the award is set out; but it appears that the defendant did not appoint an arbitrator or submit to the reference, but that, as provided in tho arbitration clause, tho plaintiff's arbitrator appointed a second arbitrator, on the defendant’s neglecting to do so. It is to bq observed that the declaration treats tho memorandum already referred to as containing tho terms of the dissolution, and that as one of those terms was that all ac<

counts due to the firm were to be paid to the plaintiff, therefore that any amount clue from any partner to the firm was to be paid ts the plaintiff. It is unrecessary to consider whether the document set out could have been intended as an agreement for dissolution or as anything more than a mere notice to third persons that tho plaintiff would act as the agent of the firm in paying and receiving moneys. Assuming that the declaration correctly describes the memorandum as containing the terms of the dissolution, then it appears that at any rate one of the matters referred to was a matter arising out of the alleged agreement for dissolution. That is the dispute, doubt, or difference as to the defendant’s liability to pay to the plaintiff Iris debt due to the firm. It is manifest that questions arising as to the meaning of, the agreement for dissolution, and tho liabilities under that agreement, are not within the arbitration clause. Consequently as to that, as the defendant never agreed to submit it to arbitration, the award is invalid. The award as to the defendant’s debt to tho firm, and his liability to pay it to the plaintiff, is sufficiautly certain, but the latter is, we think, a matter not within the partnership agreement for reference. But the matters referred are four in number, each specifically mentioned, yet on at least two of them no award whatever is made expressly or otherwise. The award determines nothing as to the “ mode of realising the book debts of the firm,” nor as to their value. Therefore there is a want of finality which vitiates the award, for it appears on the face of the award that these matters are within the agreement for reference, and that no award has been made as to them. This is not like a case where all matters in difference are referred, and it does not appear on the face of the award whether or not all the matters have been determined, but is like the case in Randall v. Randall, 7 East 81, where the recitals showed that the arbitrators had to determine all actions and controversies, and also to ascertain the rent to bo paid by the plaintiff, and the arbitrators found tho balance due from the defendant, but gave no direction respecting the rent. So where it was referred to arbitration to settle the prico of certain canals and bogs, and the arbitrators merely directed one party to pay the other a certain sum, the Court of Common Pleas in Ireland held that it did not sufficiently appear that the arbitrator had dealt with tho matter referred to him, and that tho award was bad. Richards v. Browne, 9 Tr. C.L. Rep. 199. It was also contended that the objection to the validity of the award could not be taken by demurred But this is clearly not so wheio it appears on the face of the declaration, as in this case, what the agreement is and what are the special matters referred. See Russell on Awards, 3rd edt., p. 53-1, and the cases referred to in the note. The demurrer, therefore, is allowed, with costs.

MORBIN AND ANOTHER V. KISSLING. The judgment of the Court ia this case was delivered as follows : In this caso the declaration alleges that the plaintiffs employed the defendant as an agent, for reward, to purchase an estate for them, and that tho defendant purchased tho land accordingly. The declaration then goes on to allege that in breach of his duty he obtained the conveyance in his own name, and that he has refused to acknowledge the right of the plaintiffs to the land, although they are willing and Lave offered to pay to the defendant the purchase money and his commission. The plaintiffs pray that the land may bo transferred to them. To this declaration the defendant has demurred, relying on the 7th section of the Statute of Frauds. In order that the plaintiffs may establish their claim it must appear from the declaration that tho defendant is in some way or other a trustee of the land for them. If tho ; defendant is a trustee he must have become so either by virtue of an express trust arising from the agreement between the jetties or from a resulting or constructive trust arising from some rule or maxim of equity. 'lt is clear that no express trust has been created- The agreement of the plaintiffs was that defendant should buy for them, not that he should buy in his own name and hold the land on their account. The defendant has placed himself in his posh ion as holder of the legal estate not in pursuance but in despite of the agreement between the parties. If therefore the defendant is a trustee it must be under a constructive trust, which would arise according to the rules of a Court of Equity from the position of the defendant as agent. That such a trust will arise under circumstances similar to those iu the present case appears from the case of Lees v. Nuttall. There as here the defendant was an agent and had obtained a conveyance of an estate in Irs own name, and it was held that he was a trustee for his principal. Apart therefore from the Statute of Frauds the plaintiffs are clearly entitled to the relief they seek, and the real question to be determined is whether that statute prohibits the reception of parol evidence to establish a constructive trust. The case on which the {defendant chiefly relies is Bartlett v. Pickersgill, which although decided many years ago, is apparently recognised as law by the high authority of Lord St. Leonards, whose dictum on the subject has been accepted by a host of other text writers. Bartlett v, Pickersgill seems indistinguishable from the present case except perhaps in this, that there it did not appear that the defendant had contracted for valuable consideration to purchase the estate for the plaintiff, and it might be inferred that he acted ns a mere mandatory. In such a case it might perhaps bo held that the breach of a nttdunv pactum was nob of itself such a fraud as to establish a constructive trust. Constructive trusts, as we understand the term, arise where ho trust has directly or indirectly been declared, but where according to the principles of equity it would be a fraud for tho person on whom the Court imposes the trust to assert a beneficial ownership. Whether, however, Bartlett v. Pickersgill can be distinguished on this ground is not of much moment. What the Court there decided was that there was no resulting trust, and no fraud to induce the Court to interfere. Now Bartlett v. Pickersgill was decided in 1750, and. a few years before, in Lloyd v. Spillett, 2 Atkins, 150, Lord Hardwicke had decided that he was bound by the Statute of Frauds to construe nothing a resulting trust but what are in the statute called trusts by operation of law, and ho defines these trusts. Accordingly, therefore, it appears to have been held at that time that a mere constructive trust was not within the exception of the Btb section unless in cases of fraud, and as by the 7th section the. trust was required to be evidenced by writing tho repudiation of a parol creation of trust would not be of itself such a fraud as to induce the Court to interfere. Th 5 s appears to us to be tho ratio decidendi in Bartlett v. Pickersgill, and if constructive trusts are within the scope of tin 7th sestionof the statute, the decision is ntelligible. A. constructive trust, however, is a trust which is not declared by a party at all, but results from a rule of equity, and how can it be said that such a trust is to be proved by a writing signed by the party who is by law enabled to declare it, as required by the 7th section, when from its nature it cannot bo declared by any party? The true construction of tho statute appears to be that resulting and constructive trusts are not within the purview of the 7th section. In the words of Mr. Lewin, Lewin on Trusts 6th ed., page 173—“ The aim of the Legislature was not to disturb such trusts os were raised by maxims of equity, and so could not open a door to fraud and perjury, but by requiring the creation of trusts by parties to bo manifested in writing, to prevent that fraud and perjury to which tho admission of paroltestiraony had hitherto given occasion: and the enactment itself is applicable only to this view of the subject, for the Legislature could scarcely direct that all declarations or creations of trust should be manifested and proved, &c., unless the trusts were In their nature capable of manifestation and proof: but as resulting trusts are, the effect of a rule of law to prove them would bo to instrucc tho Court in its own principles to certify to the Judge how equity itself operates. Mr. Lewin then goes on to account for the provisions of the Bth section. The conclusion, therefore, at which we have arrived is that if Bartlett v. Pickersgill denies the existence of a constructive trust under circumstances similar to those in the present case, it Is over, ruled by Lees v. Nuttall, and that there Is nothing in the 7th section of the statute which prevents a constructive trust being established by parol evidence. In tho face, however, of the adoption by Lord St. Leonards of tho decision in Bartlett v. Pickersgill, It would be advisable, if possible, to fortify these conclusions by some additional authority. This will bo found in tho recent cases of Heard v. Pilloy and Cave v. McKenzie. In each of these cases Bartlett v. Pickersgill was referred to, and was distinguished so that they cannot bo said to have overruled It, but a consideration of them, and especially of Cave v. McKenzie, (shows pretty clearly that Bartlett v. Pickersgill would not bo hold to bo law at tho present day. Tho caso of Heard v. Pilley is chiefly of importance on account of the doubt thrown upon Bartlett v. Pickersgill in tho judgment of Gifford L.J., who says that that cas o seems to be inconsistent with all tho authorities of the Court, which proceed on the footing that it will not allow the Statute of Frauds to bo made an Instrument of fraud. The caso of Cave v. McKenzie was a suit against an agent who had entered into a contract In his own name for the purchase of land, and against tho person to whom he had assigned the benefit of tho contract, praying a declaration that the contract had been entered into by tho first defendant as agent for tho plaintiff, and not on his own account. It was held that parol evidence was sufficient to establish tho agency, and that the plaintiff was entitled to the benefit of tho contract. The distinction between that, case and the present is that there the contract was executory, and tho agent had not obtained a conveyance, while hero a conveyance to tho defendant has been executed. That case states clearly that when an agent enters Into a contract for purchase ho has no interest in tho land at all; in equity it is vested in tho principal, while at law it remains in tho vendor. If under these circumstances an agent tries to deprive his principal of his equity there Is nothing to prevent the proof of tho relation of principal and agent by parol evidence. It is argued, however, by the defendant that although this may bo so, yet Bartlett v. Pickersgill shows that ns soon as the agent gets in tho legal estate tho Statute of Frauds prevents parol evidence of such a relation being given. The contention amounts simply to this: that an agent who had already committed a wrong by attempting to deprive his principal of tho benefit of a contract, but who would be liable to his principal while tho contract remained executory might, by committing tiro further wrong of obtaining a conveyance, rest sccuro under tho shelter of the Statute of Frauds, The statement of such a proposition is its sufficient condemnation. There can bo no doubt that in such a caso the agent would be in tho position of a purchaser with notice of an equity. For those reasons wo think tho demurrer must bo overruled, with costs.