A person threatened with an action has a right under the section to sue for an injunction to restrain the continuance of such threats, if the alleged patentee does not avail himself of the proviso by which the burden of taking proceedings is thrown upon him (i). If an action to test the validity of the patent or the fact of its infringement is honestly brought and prosecuted with due diligence against the person or any of the persons to whom the threats were made, the proviso is satisfied and the clause does not apply. It is not required by the proviso that the action should be brought against the person who is applying for an injunction against the threats (k). In considering whether an action is brought with “due diligence,” the time of issuing the threats and not the time when the party bringing the action first knew of the acts which he alleges to be infringements is the period looked to (l). Threats of legal proceedings for infringement of patent rights are actionable whether addressed to the infringer himself or intimated to a third person, and are none the less "threats within the meaning of the section because they are made in answer to inquiries (m). In construing the expression in sect. 32, threats "by circulars, advertisements or otherwise," the words" or otherwise " are to be read not as being restricted to threats by measures ejusdem generis with "circulars or advertisements" but as extending the previous words so as absolutely to prohibit any threats whatever of legal proceedings, unless the case comes within either of the two saving clauses at the end of the section (n). In an action to restrain threats of legal proceedings under sect. 35, no defence can be based upon the ground that what the defendant did was done bonâ fide, or that it was done on a privileged occasion (0). In order that an action by the owner of a patent for the be contingent warnings directed to future acts: Kurz v. Spence, 57 L. J. Ch. 238, 5 R. P. C. 161. See Johnson v. Edge, (1892) 2 Ch. 1 (C. A.) (i) Driffield v. Waterloo Mills, 31 C. D. 638; Fairburn v. Household, 2 Pat. Ca. Rep. 140. (k) Challender v. Royle, 36 C. D. (m) Skinner & Co. v. Shew & Co., (n) (1893) 1 Ch. 413, 419, 426. Chap. XIII. Chap. XIII. infringement of his patent should be "prosecuted with due diligence" within the meaning of the proviso to sect. 32, so as to exclude the operation of the former part of that section, it is not necessary that the infringement action should be prosecuted up to judgment. The plaintiff will not lose the protection of the proviso by reason of his discontinuing the action before trial upon discovering that he has no cause of action (p). Where the proviso is satisfied, the section does not apply, and the case comes under the old law as it was before the Patent Act of 1883, and must be dealt with as if the section did not exist (q). Where accordingly a man brought an action under the section to restrain a patentee from issuing a circular intimating his intention to take legal proceedings against infringers of his patent, and the patentee thereupon brought an action against him, it was held, though the patent was proved on trial to be invalid, that the action against the patentee under the section should be dismissed, there being no evidence to show that at the time the circular was issued, the defendant had not a bona fide belief that he had a perfect legal right to the exclusive enjoyment of the patent (r). The plaintiff in a threats action will, if successful, be entitled to an injunction and damages. In addition to the remedy of a perpetual injunction at the trial he may move for an interim injunction till the hearing (s). Such motion should not be made ex parte, but on notice (t). The Court will not, however, grant an interim injunction unless the plaintiff shows a strong prima facie case (u). It will not be conceded on a mere balance of convenience (x). Chitty, J., held that a plaintiff in a threats action is not entitled to an interlocutory injunction unless he satisfies the (p) Colley v. Hart, 44 C. D. 179. (r) Sharp v. Brauer, 3 R. P. C. (8) Challender v. Royle, 36 C. D. p. 436. (t) Wilson v. Church Engineering Co., 2 R. P. C. 175. (u) Société Anonyme v. Tilghman, 23 C. D. 1 (C. A.). (xx) Challender v. Royle, ante; Société Anonyme v. Tilghman, 25 Court that he has not infringed the defendants' patent (), Chap. XIII. but Kay, J., took a different view (2). The Court refused an injunction where the defendant gave an undertaking (a), and where an infringement action was pending (b). During the pendency of an action for the infringement of a patent, the Court will not permit the plaintiff to issue circulars containing a positive statement that there has been an infringement (c). An injunction to restrain a man from threatening the customers of the plaintiff with legal proceedings in respect of articles purchased by them from the plaintiff is not to be had ex parte (d). In an action to restrain a man from threatening legal proceedings for the infringement of a patent, an order may be made on the application of the defendant that the plaintiff shall deliver particulars of matters in respect of which he alleges that threats have been made (e). candidates By the Corrupt and Illegal Practices Prevention Act, 1895, Slander on it is provided (in effect) that any person who, or the directors parliamentary of any body or association corporate which, before or during any parliamentary election, shall, for the purpose of affecting the return of any candidate, make or publish any false statement of fact in relation to the personal character or conduct of such candidate, may be restrained by interim or perpetual injunction from any repetition of such false statement or any false statement of a similar character in relation to such candidate, and for the purpose of granting an interim injunction prima facie proof of the falsity of the statement will be sufficient (f). (c) Goulard v. Lindsay, 4 R. P. C. 190, 56 L. T. 506. (d) Wilson v. Church, &c., Co., 2 R. P. C. 175. (e) Union Electrical, &c., Co. v. Electrical Power, &c., Co., 57 L. T. 791. (f) 58 & 59 Vict. c. 40, ss. 1,3; see Bayley v. Edmunds, 11 T. L. R. 537; and Ellis v. National Union of Conservative Associations, 44 Sol. J. 750. Chap. XIV. Parting with assets. CHAPTER XIV. INJUNCTIONS AGAINST EXECUTORS. If an executor or administrator through misconduct (a), insolvency (b), or bankruptcy (c), is bringing the property of the deceased into danger, an injunction will be granted to restrain him from getting in the assets, and a receiver will be appointed. If, however, a testator has selected an insolvent debtor as his executor, with full knowledge of his insolvency, the Court will not, on the bare fact of the insolvency alone, interfere and appoint a receiver (d); but where an executor becomes bankrupt after the death of the testator, the Court may restrain him from further acting, and if there is a coexecutor who is willing to act, it is not necessary to appoint a receiver (e). The circumstance that an executor is poor and in mean circumstances, is not a sufficient ground for the interference of the Court (ƒ), but an injunction will be granted where an executor or administrator is proved to be of bad character, drunken habits, and great poverty (g). The Court will not restrain an executor from parting with the assets unless a case of past or probable misapplication of them has been made out. Thus, when an annuity secured by a warrant of attorney had been granted, the Court would not, at the suit of the annuitant, restrain the executor of the grantor from paying simple contract debts before setting apart a fund to answer the future payment of the annuity (h). So Chap. XIV. also, where the only assets of a testator consisted of a devised real estate, which was liable to his bond for securing an annuity, and before the annuity had fallen into arrear the annuitant instituted a suit, alleging waste, and sought to restrain the executrix from selling or mortgaging the real estate, the Court refused to interfere (i). The principle upon which these cases proceeded was, that until an annuity is actually due there is no legal title, and the liability is only in contingency (k). Where, however, the liability in future is certain, the case is different, and the assets may not be parted with (1). But the Court will not interfere by injunction in favour of a creditor, unless it is shown that the assets are being wasted, or are in serious danger; nor will the Court interfere with the executor's right of retainer or of preferring a particular creditor (m). An injunction may be had to restrain an executor de son tort from parting with assets (n). against a man An injunction may be granted before probate on the appli- Injunction cation of a person appointed executor to restrain another appointed person appointed co-executor from intermeddling with the executor before estate and improperly dealing with it before probate (o). In In re Parker (p) it was held that where application is made for a receiver before probate, it should be made to the Probate Division. But this decision does not seem to have been followed in practice (q); and the more correct view appears to be that unless litigation is pending in the Probate Division the application for a receiver or an injunction may be made in the Chancery Division, notwithstanding that no probate or administration has been taken out (1). (h) Read v. Blunt, 5 Sim. 567. (i) Norman v. Johnson, 29 Beav. 77; Burrell v. Delevante, 30 Beav. 553. (k) Ib. (1) King v. Malcott, 9 Ha. 692; Atkinson v. Gray, 1 Sm. & G. 577; Ex parte Robinson's Executors, 6 D. M. & G. 578, per Knight Bruce, L. J. (m) Re Wells, Molony v. Brooks, 45 C. D. 569; Re Stevens, Cooke v. (n) Re Lovett, 3 C. D. 206; Brand (0) Re Moore, 13 P. D. 36. (9) See In re goods of Moore, (r) Green v. Knight, ante. probate. |