It is Stevens as executor. [His Lordship read the entry above set out and continued:] If that was not proceeding on behalf of the executors, I do not quite know what could be. There was no probate. They desired, for some reason, to have the policy money paid before probate, and the arrangement, as stated by Emerson, was that the letter was to be signed by the executors, authorising the company to pay. Then on the 28th Emerson did write that letter evidently in pursuance of the arrangement referred to in the entry which I have just read. [His Lordship read the letter, and the entries in the bill of costs above set out and the further correspondence with the insurance company, and proceeded:] Now the position of the parties at the time is this: The executors applied -nobody but an executor could apply-to the insurance office for the money due on the policy. The company might safely have paid the money to the executors or one of them, and the receipt of the executor would have been good. The want of probate would not have made any difference. The executors could have given, or an executor could have given, a good receipt for the money, although the will had not been proved.. The law is perfectly clear and well settled. quite enough for me to refer for this purpose to the statement of the undisputed law in Williams on Executors, 9th edit. p. 249. [His Lordship read the passage relating to this subject, and continued:] Therefore at the time I am speaking of now, the company might, if they choose, have paid the money to the executors and got the receipt. On the other hand, it is equally clear that if they had refused the executors could not have compelled them to pay without proof of the will by one or more of them, or if they renounced by the will being proved by administration being taken out cum testamento annexo. Although there are certain cases in which an executor may take proceedings before probate where the right rests upon his own possession of the property; yet he could not in this case have taken proceed ings to compel payment before probate. Then the bill of costs to my mind shows most clearly that what was done was done by them as executors and in no other capacity. It does not follow that because a person named as executor has intermeddled with the estate that he necessarily is bound to take probate of the will. Cases have been cited showing that certain acts of dealing with an estate may not be such acts. For instance, if Stevens had proved and Emerson had renounced, Emerson's acting as solicitor for Stevens as much as he liked would not have made Emerson an executor. Cases were cited which show that where one executor has proved another who has not proved may do an act to help him, which might under other circumstances be evidence of acceptance, but if it is shown that he acted merely as the agent of the executor who had proved, no one can say that the agent shall be liable because of any acts which he did as agent. I do not see that any of those cases apply to the present and for this reason. They are all cases in which there was a principal for whom the alleged agent might be acting as agent. If in this case Stevens had proved and Emerson had not proved, then the principle of those cases might have applied here. But there was no principal for whom Emerson could have acted. How can it be said that the letter which I have read, signed by [CHAN. DIV. the three executors in pursuance of the arrangement for the executors to sign, was signed by one of them as agent for the other when the other was no more a principal than the alleged agent was? If it could be said that Emerson here was merely acting as agent for Stevens it might be equally said that Stevens was acting as agent for Emerson. No doubt it might have relieved Emerson if when the facts were disclosed it had turned out that he had merely been acting as solicitor for a person who was himself acting as executor in the matter. But that cannot have any connection with such a case as this. It is clear that what was done here was done with the view of giving the executors' consent to the insurance company's paying over part of the estate of the deceased, in the hope of inducing them to do so. It cannot have been done with any other purpose. If it had been acted upon, as I pointed out it might have been, by the company, and the money had been paid over by the direction of the executors to the mortgagees, or with the consent of the mortgagees to the executors, it could not possibly be said that there had been no receipt by the executors, and that they were not liable. This case seems to me, therefore, to have been a clear case of acting as executors, and in no other character. It follows from that that I must direct the usual accounts to be taken against Emerson. I have seen a case of James v. Frearson (1 Y. & C. C. C. 370) in which a bill was filed against an executor seeking to charge him in respect of devastavit committed by a co-executor who had died, and the defendant denied that he had acted, and it was admitted that he had not proved the will until after the death of the other executor, but the court held that the defendant had intermeddled. A decree was made for "ordinary administration accounts." I only refer to that case for the form of the decree. Then Mr. Everitt asked for relief on the footing of wilful default. That is a decree of a totally different character and nature from the ordinary decree for common accounts. It has been well explained in various cases. I may refer amongst others to Partington v. Reynolds (31 L. T. Rep. O. S. 7; 4 Drew. 253, 255), in which there is a passage pointing out very fully the totally different nature of a wilful default decree and decree for a common account. If this is to be a wilful default decree it must depend upon special evidence proving cases of wilful default. I say cases because I think on one occasion Wood, V.-C., or Lord Hatherley, said one instance was enough. I think that would rather depend upon the sort of instance. One clear case might be good enough possibly, but it is desirable to have more. I am not prepared to say that one might not be enough in this case if there were one proved. A decree of that sort is a very strong decree to make against a defendant for this reason. Although you have only proved one or two cases which are relied upon at the trial, the result is a judgment on the footing of wilful default in respect of all the acts of the executors in winding up the estate, and they may be charged with wilful default in taking the accounts in respect of matters as to which not a word was put forward at the trial of the action. therefore a very large order, and totally different from a particular inquiry with respect to a particular matter. I can quite understand if there It is CH. DIV.] BADISCHE ANILIN UND SODA FABRIK v. HENRY JOHNSON AND CO., &c. [CH. DIV. were one or two cases put forward the court might say they are not sufficient cases to justify a general decree based upon wilful default, but they are sufficient to justify particular inquiries being directed as to the particular transactions in question, and then if the court directed inquiries which were large enough to bring out all the facts, I take it there might be a decree upon the footing of wilful default as the result of the particular inquiries directed. But that is a totally different thing from a decree based upon wilful default proved, and therefore directed generally with respect to the taking of the accounts. Now in the present case, what are the facts of wilful default suggested. [His Lordship after going through certain alleged instances of wilful default as to which he held there was no evidence, proceeded:] It is said there was wilful default in not getting in the moneys due upon the policy to which I have already referred. There has been no wilful default with respect to that by reason of which any loss has accrued to the testator's estate for the full sum was received. But it is said that, although there is no wilful default with respect to that sum, there was a breach of trust because if it had been got in it might have been either applied in paying debts carrying interest, or it might have been invested itself at interest. That does not seem to me to show that there was wilful default in not getting in the sum in question, although there may have been some neglect of duty in not receiving the sum and investing it or applying it in payment of debts. It was said that there had been wilful default in allowing the will to remain unproved for so many years; but it is impossible to say that loss of interest on that particular sum which was received is a loss sustained by reason of wilful default in not proving the will. The facts are too far apart. The damage is too remote. That is perhaps the more legal way of expressing it. I do not see how executors can be held liable for damage occasioned by wilful default in not proving a will. Under the circumstances, therefore, no case is made as to wilful default. The question remains as to the form of the decree. After some discussion judgment was given dismissing the action with costs so far as related to the question of wilful default, and directing the common inquiries and accounts against both defendants as to real and personal estate with liberty to use all proceedings in Stevens v. Stevens. The defendants were ordered to pay the costs so far as related to the question whether both defendants were liable. The rest of the costs were specially reserved. Solicitors: S. S. Seal, agent for Steavenson, Darlington; Whites and Co., agents for M. S. Emerson, Norwich. Jan. 26 and 27. (Before NORTH, J.) BADISCHE ANILIN UND SODA FABRIK v. HENRY English patent-Infringing goods manufactured (a) Reported by J. TRUSTRAM, Esq., Barrister-at-Law. England-Injunction against foreign manu- Goods covered by an English patent were manu- THIS was an action for (1) an injunction restrain- The plaintiffs, Badische Anilin und Soda Fabrik, were a company incorporated according to the laws of the Grand Duchy of Baden, in Germany. The defendants, Henry Johnson and Co., carried on business in the city of London as drysalters. They admitted by their defence that during 1895 they imported into England and 66 'Fast sold small quantities of dye known as Yellow T.," and thereby made a small profit amounting to 41. 178., but stated that they were unaware that the sale of such dye was or was alleged to be an infringement of the plaintiffs letters patent until the 28th Oct. 1895, when they received a letter from the plaintiffs' solicitors to that effect, and that since receiving that letter they had not sold, and did not intend to sell, any of such dye; and although not admitting that they had infringed the plaintiffs patent, they offered to give an undertaking not to sell such dye in future, and to submit to an order to be made on summons in chambers for an account of profits, or an inquiry as to damages, and for payment of the amount of such profits or damages and of the plaintiffs' costs up to that time, and the costs of the order for carrying their offer into effect, the costs of the account or inquiry being reserved, which order was made on the 13th April 1896, those defendants paying to the plaintiffs 47. 178. as damages without any account or inquiry. The defendants, the Basle Chemical Works, Bindschedler, were chemical manufacturers car CH. DIV.] BADISCHE ANILIN UND SODA FABRIK v. HENRY JOHNSON AND CO., &c. rying on business at Basle, in Switzerland. By their defence they alleged that they were Swiss subjects domiciled in Switzerland, that they had no place of business or residence in England, and did not carry on business in England, and denied that they were subject to the jurisdiction of the English court; and, without prejudice to their plea to the jurisdiction, they denied that they had ever made, used, or vended the alleged invention in the United Kingdom of Great Britain and Ireland and the Isle of Man, or had ever imported into England dyes manufactured in accordance with the alleged invention, or in any manner infringed the plaintiffs' rights under their letters patent. By their particulars, however, they stated that they did not intend to plead that the dye called "Fast Yellow T.," manufactured and sold by them, was not manufactured in accordance with the plaintiffs invention comprised in their letters patent. The plaintiffs, in reply to the defence of the defendants, the Basle Chemical Works, Bindschedler, alleged that these defendants had never objected to service on them of the notice of the writ in the action, or applied to set aside snch service or to discharge the order of the Court of Appeal authorising such service, that they had appeared to the writ unconditionally, and had submitted themselves and could not deny that they were subject to the jurisdiction of the court. The facts admitted by the defendants, the Basle Chemical Works Bindschedler, were as follows: That in due course of post after the 7th June 1895, they received at Basle, in Switzerland, from the defendants, Henry Johnson and Co., a postcard as follows: London, June 7, 1895.-Dear Sirs,--Please send us by post immediately, five pounds yellow T. for wool 109. Yours truly, HENRY JOHNSON and Co. That on the 11th June 1895 they supplied to the defendants, Henry Johnson and Co., the five pounds of dye, mentioned in the postcard, by delivering the same at Basle, to Messrs. Niebergall and Goth, as agents of Henry Johnson and Co. That on the 11th June 1895 they sent to the defendants, Henry Johnson and Co., an invoice, as follows: Basle, Switzerland, June 11, 1895.-Messrs. Henry Johnson and Co, 16 Laurence Pountney-lane, London, E.C. Bought of the Basle Chemical Works Pindschedler, terms 24 per cent. discount, m.a. Sent to Messrs. Niebergall and Goth, Basle, to be held by them at your disposal, one package containing five pounds yellow T. for wool, at 38. 34d. per pound, 168. 6d. That the defendants, Henry Johnson and Co., subsequently paid to them the sum of 16s. 6d. mentioned in the invoice. It appeared from the depositions read at the trial of the action that the business carried on under the title of the Basle Chemical Works, Bindschedler, belonged entirely to Dr. Bindschedler; that the package was conveyed to Messrs. Niebergall and Goth, by Dr. Bindschedler's cart, with a document called a weight note containing instructions to them to hold it at the disposal of Messrs. Johnson and Co., and also the direction to be sent by post; that it was the invariable custom of Dr. Bindschedler that goods sold to [CH. DIV. English customers and which fell under English patents should be delivered to a forwarding agent on the continent who forwarded the goods and paid the forwarding charges; that if the dye had not been covered by an English patent the package would have been sent by Dr. Bindschedler by post direct to Henry Johnson and Co.; that Dr. Bindschedler never paid the agents' forwarding charges; that Messrs. Niebergall and Goth_paid the forwarding charges; and that Henry Johnson and Co., on receiving the package paid through the post-office Messrs. Niebergall and Goth's account for forwarding charges which included their commission, although this did not appear on the account. There was no evidence to show that Henry Johnson and Co., when they paid the forwarding charges, knew that they were paying any commission to Messrs. Niebergall and Goth. The remainder of the evidence, so far as material, is stated by North, J. in his judgment. Moulton, Q.C., W. N. Lawson, and C. J. Graham, for the plaintiffs. The action is now only against the defendants, the Basle Chemical Works Bindschedler. They do not dispute the validity of the plaintiffs' patent, or that the goods sold are an infringement of the plaintiffs' rights. It is discreditable that articles patented in this country should be made abroad and surreptitiously conveyed into this country, and that there should be agents here in this country who go about and obtain orders for infringing goods. It is smuggling. We submit that a man who sends by post infringing articles to this country is an infringer. He cannot say he delivers to the post as agent of the customer. These defendants did not follow the directions of Henry Johnson and Co., to send the dyes by post. They sent the package with the weight note to Niebergall and Goth, and Niebergall and Goth sent the package to England to Henry Johnson and Co. The only inference to be drawn from this is that these defendants employed Niebergall and Goth as their agents. Upjohn (Bigham, Q.C. with him).-The sending by post to England, by a foreign manufacturer in a foreign country, of an article manufactured in that country which infringes an English patent, does not constitute an infringement in England of the English patent so as to render the sender. who has no place of business in England, and does not carry on any business here, liable to the jurisdiction of the English court. But even if it does, Bindschedler did not send the dyes to this country, but delivered them at Basle to Messrs. Niebergall and Goth as agents of Henry Johnson and Co., and Niebergall and Goth sent them by post to this country. If Henry Johnson and Co. did not appoint Messrs. Niebergall and Goth as their agents they ratified the agency by paving their charges. [NORTH, J.— There is no evidence to show that when the amount of Messrs. Niebergall and Goth's account for forwarding charges was paid to the postoffice, Henry Johnson and Co. knew that it included Niebergall and Goth's commission. Even if Bindschedler delivered the package at Basle to carriers as his agents, with instructions to send it to Henry Johnson and Co., that amounted to a complete delivery at Basle to Henry Johnson and Co.; and if the package had been lost through the default of the carrier, the CH. DIV.] BADISCHE ANILIN UND SODA FABRIK v. HENRY JOHNSON AND Co., &c. loss would fall on Henry Johnson and Co.: (Sale of Goods Act 1893 (56 & 57 Vict. c. 71), sects. 21, 32). [NORTH, J.-The goods are not at the buyers' order when going through the post, and the seller was taking part in an illegal act according to the law of England. That appears to be the view taken by Lindley, L.J. in the appeal in this case with respect to service out of the jurisdiction, reported 73 L.T. Rep. 523; (1896) 1 Ch. 25.] I submit that the view of the Court of Appeal there was that the case was similar to that of agents selling the goods in this country. The evidence in this case shows that the responsibility of Bindschedler ended when he delivered the goods to the carriers at Basle. When a purchaser does not select his own carrier the sender usually selects the carrier for the purchaser. How can Bindschedler be blamed for taking care to confine his acts to his place of residence, where his acts are legal, when he knows that the goods infringe an English patent? It would be otherwise if he came over here or did any act here. There is no case in the books which approaches this case. If he does no act here which is illegal, how can he be brought before an English court for doing in Switzerland an act which is legal by Swiss law? (Benjamin on Sales, 2 edit. p. 185). After goods are sent off the consignor cannot stop them, but the consignee to whom they are addressed may. If Bindschedler had no control of the goods after they were sent from Basle, how can he be said to have done any illegal act within the jurisdiction of the English courts in the case of a breach of a right which has force only in England? Sykes v. Howarth, 41 L. T. Rep. 79; 12 Ch. Div. 826. Moulton, Q.C. in reply.-Bindschedler sent the dyes to England. NORTH, J.-His Lordship stated the facts set out above, and with reference to the order for the dyes sent by postcard by Henry Johnson and Co. said: It is admitted that the article described there, and the article sent to England in consequence, was an article made in accordance with the patent in question, and therefore the use of it here and the delivery here as an infringement of the patent; [and, after referring to the invoice sent by Bindschedler, proceeded:]-Let me pause here for a moment; and I will assume that this invoice was an invoice for goods sent to Johnson and Co., instead of to Niebergall and Goth, because that raises one point which was argued before me. It was contended by counsel for the defendants that, if in point of fact the defendant company had complied with the order by themselves posting direct to Johnson and Co. in London the goods in question, they would have done an act that would have been perfectly authorised by law, and in respect of which they could not have been said to have committed any infringement in this country. I do not take that view. It is admitted that the article is one which, if dealt with here, is an infringement of the patent, and the result would be that two persons, one in London and another in Basle, could put their heads together, one to give an order and the other to carry it out, by which these infringing goods would be handed over to a carrier named, that is to say, the General Post, in order that they might be brought to this country by 66 [CH. DIV. that carrier, and on arriving here might be, I will not say delivered, because that is a technical word that might be misunderstood, but handed over by the Postmaster-General to Henry Johnson and Co. in compliance with the order sent abroad and executed there and completed here by the arrival of the goods and their being handed over to Henry Johnson and Co. In my opinion, that clearly is a combination of two persons to hand over in this country to Henry Johnson and Co. an article infringing the patent. That is done in pursuance of the order given, which the three letters I have referred to show was the sale of the goods to Henry Johnson and Co., completed in this country by the receipt by them of the goods. In my opinion it is quite clear that the defendant company took the same view of the law that I do. I think that their view is more sound than that suggested by their counsel in his argument. Then, with the desire to avoid, if possible, the infringement in this country of the patent by delivering the goods here, the defendant company adopted the device which we now have to consider, in order to see whether it is a successful one or not. As part of that plan they inserted in the invoice the words which I have supposed not to be there for the purpose of considering the first question, those words being, Sent to Messrs. Niebergall and Goth, Basle, to be held by them at your disposal.' That completes the communication between the defendant company and Henry Johnson and Co., as far as appears on the evidence except that it is admitted and appears from the pleadings that the goods were sent by post. Now, let us see what was done by the defendant company abroad. Having dealt with Henry Johnson and Co. in the way I have mentioned, they, on the 11th June-the same day on which the letter and invoice which I have just referred to were sent-send to Messrs. Niebergall and Goth, a firm carrying on business as forwarding agents at Basle, what is called a weight note, the translation of which I will read: "Weight note of the Basle Chemical Works, Bindschedler. We send you by our carrier," meaning by our cart, because the works are very near Basle. Then it describes the goods sent, gives their gross weight and their value as 25 francs, and then follow these words: "Free delivered Basle at disposal of Messrs. Henry Johnson and Co., 16, Lawrence Pountney-lane, London, for conveyance by post." The words "at disposal of Messrs. Henry Johnson and Co." are clearly a fair translation of the German words used. The words Free delivered Basle" meant that there was no charge in respect of the goods prior to the delivery at Basle to Niebergall and Goth, and showed that the free delivery was only to Basle, and that the payment for the sending of the goods on, that is to say, the conveyance by post, would have to be provided for by the persons who received the note. Messrs. Niebergall and Goth make an entry of it in their books, to which I do not think I need refer now, and on the same day send the goods by post to England. I have a copy of the document signed by the postmaster respecting the goods with a translation. It gives the date as the 18th June; the object, one package; value 25 francs, reimbursed 3 francs 60 cents; addressed Johnson and Co.; destination, London; freight, 2 francs 60 cents.; and it is signed by the post 66 CH. DIV.] BADISCHE ANILIN UND SODA FABRIK v. HENRY JOHNSON AND Co., &c. master. That I should say, in passing, is, notwithstanding the order, so far as it was an order, contained in the weight note that the goods at Basle were to be at the disposal of Henry Johnson and Co. That is how they understood it. On the same day they made an entry in their own book, which, of course, is evidence against them, and I will just refer to it. It describes the package. It says, sent by post 2 francs 60 cents. Then comes in another line, commission care, postage and stamps, 1 franc, which, added to the 2 francs 60 cents, makes 3 francs 60 cents, and that is marked down to the debit of the post, meaning that they would look to the post to get those charges back from the consignee of the parcel in London, and that when the post received them they would be repaid by the post to Niebergall and Goth. That, in fact, was done. The charges were paid in London, and accounted for by the post to Niebergall and Goth. On the day on which Niebergall and Goth forwarded the package to London, they write the following letter to Johnson and Co, which seems to be a common form, for it is in print with certain spaces to be filled up to suit the particular transaction: "We beg to inform you that we have this day forwarded to your address the undermentioned goods by," when there is a blank filled in in writing, which runs "by post via Ostend, delivery at your house. Our charges on the same amounting to 3 francs 60 cents carriage from Basle to London as per specification have been charged forward." The reference to specification is in print, it has not been explained, and I daresay it is not material. But the point to notice there is that the route is directed, the delivery is to be "at your house," and the charges 3 francs 60 cents are described in writing as carriage from Basle to London charged forward. In addition to that, there is a little further useful information to be derived from the depositions of the witnesses taken at Basle. There are certain portions of each which I wish to read. First, I will take that of Stauffacher, the head of the corresponding department in Dr. Bindschedler's business. He receives all the correspondence, and attends to the execution of orders from England. He received the postcard, and he gave directions for its being carried out and so on. Then he says this, "I don't think I had any special instructions from anyone at the works to send the package to Niebergall and Goth. If any order comes to the works from England for goods covered by an English patent the practice is to forward the goods to a forwarding agent on the Continent, not in England. That is a standing order in the works, and it is not necessary to give special instructions. In such a case Bindschedler never pays the forwarding charges to England." Then a little further on he says, "As far as I know no further instructions were sent to Niebergall and Goth with respect to the package except what I called the weight note. A little further on he says, "Besides the documents abovementioned neither I nor anyone at the works had any communication with Niebergall and Goth with respect to the package." Then, in cross-examination he says that-in answer to the letter giving the order" I did not send the package by post because I knew I was not allowed to. As far as I know nobody told me on this particular occasion. My reason for not sending it by post was because [CH. DIV. it came under an English patent. I did not want to send it through the carriers. I only wanted to hand it to them. I was under the impression that my responsibility ceased with respect to this package when I banded it to Niebergall and Goth. That was why I introduced the words Zur Verfugung.' I generally introduced those words when we were selling dyes covered by an English patent. My firm has sent considerable quantities of dyes of the same composition as 'Yellow T' by means of weight notes always containing the words Zur Verfugung.' A considerable quantity of such dyes has been bought by firms in England. Prior to this transaction we have had correspondence with Johnson and Co., and I think it relates to the same sort of dye. We have on many occasions prior to this transaction sent packages of dye similar to Yellow T.' to the carriers with weight notes in which the words Zur Verfugung,' appeared, and it is my belief "these words are important-" that the carriers forward the packages as soon as they can to purchasers." Then in his re-examination he says at the end," On every occasion on which Bindschedler sold Tartrazin or Yellow T.' to Henry Johnson and Co. the delivery was to a carrier on the Continent, with written instructions to hold at the disposal' of Henry Johnson and Co., and on no occasion did Bindschedler pay the carrier's forwarding' charges. The above statements apply also to sales to people in England other than Henry Johnson and Co." Then there is the deposition of Lenthardt, who is the manager of the business which Bindschedler carries on. Though it appears that Dr. Bindschedler does take some part in the business, as, for instance, he signed one document I have seen, yet the manager of the business is the person who generally conducts it. He says: "I gave no instructions as to those words. There is a custom of the business to account for the introduction of those words. The custom is that all goods which are sold to English customers, and which fall under an English patent, must be delivered to a forwarding agent on the Continent. The custom is for the man who receives the goods to pay the forwarding charges. That is an invariable custom. I have never known Bindschedler since he commenced business paying the forwarding charges to England of articles covered by an English patent." Then a little further on in his examination in chief he says: "In this particular case neither Bindschedler nor the works paid any part of the forwarding charges to England, nor has he or the works reimbursed Johnson and Co. any part of these forwarding charges. The transaction was carried out in the ordinary way." I will next read the statement at the beginning of his examination, because it adds a useful piece of information: "Bindschedler employs a person at the works to find out which of his products are protected by English letters patent. If a product is protected by any English patent belonging to a person other than Bindschedler we do not deliver in England." Then I go back to his crossexamination. He says: "I saw that this particular dye came within an English patent," and the patent is produced to him. If it had not been for the existence of that specification, we should have sent the package by post direct to Johnson and Co. We did not send it by post because it was not our business to deliver. There is no |