there are no sufficient damages in evidence to warrant interference by injunction.

The learned Chancellor held that a verbal consent or license on the part of the plaintiff had been proved, but reserved judgment as to whether the consent must be in writing.

Afterwards he gave judgment on this point as follows:

November 21st, 1883. BOYD, C.-To create a perfect right under the statute (38 Vic. ch. 88 C.), there should be an assignment in writing of such parts of the book as the owner of the copyright therein is willing to permit his licensee to publish; but, without any writing there may be such conduct on the part of the owner, as disentitles him to relief in equity by way of injunction. I have found upon the facts in this case, that the plaintiff was aware of the defendant's intention to publish what is now complained of in pursuance of an assent given by the plaintiff, and encouraged the defendant in so doing. That is, in substance, the case of Rundell v. Murray, Jac. 311. See also Saunders v. Smith, 3 My. & Cr. 711. In both injunctions were refused, and the parties were left to their strict rights at law. I said, at the close of the argument, that the plaintiff's damages were but trifling, at the outside, not over $20, and if the case were before me in its purely legal aspect I would give no more. This amount is too small to litigate about in this Court; and I have no doubt my proper course is, to dismiss the action. I have hesitated about costs. It would, perhaps, be unreasonable to withhold costs from the defendant, who succeeds; yet there being some cause of action in the plaintiff he should not pay all costs; as a rough way of doing justice, I think that the plaintiff should get his costs on the lower scale.

A. H. F. L.

[CHANCERY DIVISION.]

MCGREGOR v. MCGREGOR.

Occupation rent-Improvements under mistake of title.

No occupation rent should be charged against one who has been in occupation of land ander mistake of title, in respect of the increased value thereof arising from improvements which are not allowed him.

THIS was an appeal from the report of the Master, made in pursuance of a reference directed by the decree in this action, as reported 27 Gr. 470, and dated June 28th, 1882.

The contents of the report, and the grounds of this appeal, are sufficiently set out in the judgment of Ferguson, J.

The appeal was heard on Thursday, January 18th, 1883.

C. Moss, Q. C., and George Lount for the appellants. We have not been allowed enough for our improvements, and have been charged too much for rents and profits. Rent has been charged for the increased value arising from the improvements, which should not have been done. We refer to Rice v. George, 20 Gr. 221; Fawcett v. Burwell, 27 Gr. 445; Carroll v. Robertson, 15 Gr. 173 ; Gummerson v. Banting, 18 Gr. 516; In re Brazill, Barry v. Brazill, 11 Gr. 253.

W. Cassels, Q. C., for the respondents. Barry v. Brazill, and Fawcett v. Burwell, decide the contrary of what has been alleged. The rent should be, as it is, based on the enhanced value. As to the appeal, so far as it is one on questions of fact, we refer to Day v. Brown, 18 Gr. 681. The judgment of Spragge, C., reported 27 Gr. 470, concludes the matter as regards the commencement of the time during which there was a mistake of title. The appellant never believed himself to be owner until he got the conveyance from his father. He knew, up to that time, he was not the owner.

78-VOL. V O.R.

C. Moss, Q. C., in reply, referred to the judgment in Rivet v. Desourdi (a), a copy of which was laid before the Judge.

February 5th, 1883. FERGUSON, J.-The more important facts appear in the report of the case and the judgment of the present Chief Justice (then the Chancellor) 27 Gr. 470.

In the concluding part of this judgment, which was mainly against Malcolm's contentions, the learned Chief Justice says:-" Counsel for Malcolm McGregor asks that he be allowed for improvements under the statute as for improvements made under a mistake of title. I think this is not unreasonable, he in that case accounting for rents and profits from the time the title of the plaintiffs accrued that is, from the death of the father. It appears probable from the evidence that he really was under a mistake as to his title, as it was a general belief among his sisters and their husbands that the father was (as they phrase it) heir to his wife, and consequently that his conveyance to Malcolm was effectual to convey to him an absolute title."

This conveyance from the father to Malcolm was on October, 22nd, 1866, and the father's death took place on May 7th, 1873.

The decree drawn up in pursuance of this judgment contained, amongst many other things, a reference to the Master to take an account of the rents and profits received by Malcolm since May 7th, 1873, and to charge him with a proper occupation rent since that date, and also to take an account of the amount by which the lands in question had been enhanced in value by lasting improvements made thereon by Malcolm. Nearly all the evidence in the Master's office was taken under the decree in this form, and, as appears by a document produced from the offices, the Master had made a computation in which he stated the enhanced value from improvements made at

(a) Reported 12 C. L. J. 203.

intervals from 1857 to 1873 to be $1,125, that he fixed the occupation rent at $150 per annum, that he took the accounts allowing Malcolm the taxes paid by him and allowing interest according to the case Fawcett v. Burrell, 27 Gr., 445, and found a result in favor of Malcolm of $1,200.96. This paper bears no date, but it is manifest that it was made out before the decree was amended as hereafter stated. On June 9th, 1881, an order was obtained to amend the decree by inserting in the part containing the reference to improvements, the words— "Under the belief that the said lands and premises were his own," and the decree was accordingly amended. The evidence taken in the Master's office after the amendment of the decree was taken in October, 1881, and was a few lines additional testimony given by Malcolm himself stating that he went into possession in 1857, that he paid taxes upon the land believing it to be his own, that he got himself assessed for it, that had he not believed it to be his own he would not have "cut a stick" or made any improvements upon the land, and being asked the foundation of his belief, he said, "My father and mother persuaded me to take possession of the land, and they would give me a deed." (The land belonged to his mother.)

After this the Master appears to have made another memorandum, or computation paper, by which he allowed to Malcolm only the improvements made after the date of the conveyance from his father in the year 1866, and to have taken the accounts in other respects much on the same principle as before. He appears to have found a balance against Malcolm of $808.87 instead of the former balance in his favour of $1,200.96, mostly all the improvements having been made before the execution of the deed in 1866, and in the sixth paragraph of the Report the Master reported this balance against Malcolm McGregor This seems to be what mainly occasioned the appeal.

Many grounds of appeal were stated. These are shortly as follows:

:

1. That too high an occupation rent was charged.

2. That more than six years rent should not have been charged. That more rent should not have been charged than the defendant (Malcolm) submitted to be charged with, $100 per year for the first four years after his father's death, and $150 per year for the four following years.

3. That the Master should not have charged interest on the occupation rent.

4. That rents beyond the amount of improvements allowed should not have been charged, and in case the rents equalled or exceeded the improvements the taxes paid by Malcolm should have been allowed over and above the rent.

5. That the allowance for improvements and rent should not have been confined to the time that Malcolm was in possession after March, 1873, but the Master should have allowed what he allowed in what is called his former judgment, (by which is meant the memorandum to which I first alluded,) the same extending back to the period when the defendant Malcolm first went into possession.

6. That the Master was wrong in finding against Malcolm $808.27, and should have found the $1200.96 in his favor.

The chief contentions before me were as to the improvements and the occupation rent. The improvements that were made after Malcolm got the conveyance from his father were, as I understand the case, allowed for. It was contended, however, that all the improvements that were made by Malcolm from 1857, when he first went into possession, were made under the belief that the lands and premises were his own," and that the Master had so found by what was called his first judgment, and it was argued that the meaning of the decree was the same before as after the amendment of it, and this argument was based (in part at least) upon the contention that the words used in the judgment of the Chief Justice" as for improvements made under a mistake of title," have really the same meaning as the words introduced into the decree by the amendment. But before the amendment neither of these