The defendants having disputed the validity of the invention, and denied infringement, the following issues had been directed for trial before the Vice-Chancellor without a jury:— 1. Whether Messrs. Jones were the first and true inventors of the undisclaimed portions of the patent; 2. Novelty of invention; 3. Infringement. On the 12th of November plaintiffs moved for an order to be allowed to inspect the manufactory of the defendants and all cartridges and machinery therein. This application was refused (see ante, p. 197). in England: that the judges of the Court of Queen's Bench, though still adhering to the opinion they had pronounced in Allhusen v. Malgarejo (Law Rep. 3 Q. B. 340) had agreed to follow the opinion of the majority; and that, consequently in future all the courts would follow Jackson v. Spittal. The rule was therefore discharged. Rule discharged. Attorneys for plaintiff: Gregory, Rowcliffes, & Rawle. Attorneys for defendant: Linklater & Co. Plaintiffs had delivered their particulars of breaches, that defendants between the 9th of September, 1871 (the date of amending the specification by disclaimer) and the 30th of May, 1873 (the C. P. day of filing the bill) had made or sold cartridges made in the manner described in the specification as amended by the disclaimer: viz., in particular, cartridges made respectively with a case to which is attached a metal head, and having a cap or chamber formed in the manner described, solid to and in a piece with the head, as and for the purposes mentioned in the said specification. Swanston, Q.C., and Macrory (E. C. Willis with them), for the defendants, in support of the motion, contended that plaintiffs were bound to give defendants by the particulars of breaches distinct notice of the case which they would have to meet, and to specify the time, place, and manner of, and the particular parts of the specification relating to, the alleged infringement. A rule nisi had been obtained for a review of the taxation of costs in this case. The master had disallowed certain fees paid to counsel for refreshers, and it was by way of appeal against such disallowance that the application to the Court was made. Sutton shewed cause. Butt, Q.C., appeared in support of the rule. that the fees had been disallowed in pursuance of the general LORD COLERIDGE, C.J., stated that the master had reported practice of the Court theretofore, which, differing from that of the Courts of Queen's Bench and Exchequer, had been never to allow refreshers: that the Court wished their practice for the future to be assimilated to that of the other courts, and consequently the plain-matter would be referred back to the master to exercise his discretion on the question whether in this particular case the refreshers ought to be allowed. Kay, Q.C., and Aston, Q.C. (Locock Webb with them), for tiffs, contended that they were not bound to give any further particulars than those already given. THE VICE-CHANCELLOR said it was the duty of the Court to take care that by the particulars of breaches full, fair, and distinct notice of what was complained of should be given to the defendants. In this case the defendants had been furnished with full particulars, as cartridges-the very thing in dispute -which plaintiffs, who had been refused access to the defendant's works, undertook to prove were made in infringement of the patent, had been made exhibits. It was not the case of a complicated machine, in which plaintiffs might very properly be required to point out what particular portions they alleged to have been infringed. The motion must be refused with costs. Solicitors: Stibbard & Cronshay; Treherne & Wolferstan. C. P. Common Law. VAUGHAN v. Weldon. Nov. 20. Practice-Common Law Procedure Act, 1852, s. 18-Cause of Action. Motion to set aside the proceedings upon a writ issued under the 18th section of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76). The action was brought upon a contract made abroad for a breach of such contract committed in England, and the question was, whether it was necessary under s. 18 of the Common Law Procedure Act, 1852, that the whole cause of action should have arisen in England, or whether it was sufficient that the breach should have taken place in England, a point as to which there have been conflicting decisions in the courts. A. L. Smith shewed cause against the rule. Nov. 20. LORD COLERIDGE, C.J., gave judgment, stating that there had been a conference of the judges with a view, if possible, to securing uniformity of practice in relation to the question, and the majority of judges were in favour of the opinion of the Court of Common Pleas in Jackson v. Spittal (Law Rep. 5 C. P. 542) viz., that it was sufficient if the breach took place Rule absolute. Attorneys for plaintiff: Freshfields & Williams. Attorneys for defendant: Pritchard & Sons. P. & M. HOPE v. HOPE AND ERdody. Nov. 24. Dissolution of Marriage-Variation of Settlement-Appointment of New Trustees-22 & 23 Vict. c. 61, s. 5. In this case a decree nisi for dissolution of marriage was made on the 14th of November, 1873, and a decree absolute on the 2nd of July, 1874. On the same day a petition for the alteration of the trusts contained in the marriage settlement of the parties was presented, in which it was stated that they were agreed that all the trust funds settled by the petitioner shall be applicable, and all such powers of appointing new trustees, or of appointing any portion of the trust funds, or of consenting to, requesting or directing any investment or change of investment, or any application of the capital or income of the trust funds or any part thereof, and all other powers and authorities whatever, shall henceforth operate and be exercisable in the like manner and by the like person or persons as if the respondent had died on the day of the date of the order. The petitioner had brought into settlement a large sum of money, and the respondent a reversionary interest in 30,000., over which she was still to have control. The registrar reported in favour of the alterations agreed upon. Day, Q.C., and Hemming, for the petitioner, applied to the Court to carry out the agreement of the parties, and to confirm the report of the registrar. Dr. Spinks, Q.C., for the respondent. Inderwick, Q.C., and Stephen, for the trustees. Nov. 24. THE JUDGE ORDINARY expressed a doubt whether he could interfere with a wife's right, secured to her by settlement, to join in the appointment of new trustees, but in the present case refused to do so because the trustees were not only trustees of the fund settled by the petitioner, but also of that belonging to the respondent, in which it was still intended she should have an interest. Attorneys for petitioner: Young, Jackson, & Co. M. R. 211 BAKER V. STORY (Will-Real Estate-Implied Revocation-Devise 215 V.-C. M. 213 V.-C. M. BNKCY. tion Act, 1845 (8 Vict. c. 18), 88. 35, 68) Common Law. M. R. 213 212 215 212 214 212 214 212 This was an appeal from an order of Mr. Spring Rice, sitting as chief judge in bankruptcy, made on a debtor's summons against the Rev. G. H. Turner. The summons was taken out by Captain Hubback for the sum of 500l., being the balance of a sum of 750l. which Captain Hubback had paid to Mr. Turner in November, 1873, as the purchase-money of a share in the Gurtnakelly slate quarry in Ireland. Captain Hubback alleged that Mr. Turner at the time of the purchase had no saleable interest in the quarry, and he claimed a return of the money on the ground of failure of consideration. Mr. Turner denied the debt, relying on an agreement for final settlement of the transactions between himself and Captain Hubback in February, 1874, at which time, as he alleged, Captain Hubback had full knowledge of all the circumstances and received back 2501., part of the purchase-money, and gave up the transfer to be cancelled. On the application to dismiss the summons affidavits were filed by both parties, and Mr. Turner was cross-examined before the registrar, who adjourned the summons for the purpose of an action being brought, but being of opinion that the probability was in favour of the creditor succeeding in the action ordered Mr. Turner to give security to the amount of 1000. Mr. Turner appealed from this decision. E. C. Willis, for the appellant, contended that this was not a proper case for requiring security. De Gex, Q.C., and Rolland, for the creditor, referred to Ex parte Lowenthal (Law Rep. 9 Ch. 324), where Lord Justice Mellish laid down the rule that where there is a question to be tried, and it is not made out to the satisfaction of the judge that there is a probability that a good defence would be made out, security ought to be required. THE LORD JUSTICE JAMES said that he did not think this was a proper case for requiring security. It was difficult to I. J. J. 211 avoid prejudicing the trial of the action; but, weighing all the probabilities, he was of opinion that there was at least as much probability of the defendant succeeding in his defence as of the plaintiff succeeding in his action. The order must be discharged so far as it required security to be given. Solicitors: Poole & Hughes; Philip Roberts. HORSFORD, IN THE GOODS OF (Will — Execution - Testimonium Will-Real Estate—Implied Revocation—Devise upon Secret Trust. Isaac Britton, the testator in the cause, made a will dated the 23rd of February, 1865, whereby he gave all his real and personal estate to his wife Emma Britton absolutely. He afterwards made another will dated the 6th of May, 1867, and thereby, after making a specific gift to his wife Emma Britton, he gave and devised all his real estate and his residuary personal estate to trustees upon trusts for sale and conversion and investment of the proceeds and payment of the income to his said wife during her life; and after her decease he directed his trustees and executors to pay the net proceeds of his said estate to the treasurer for the time being of the Bristol General Hospital to | allowed the plot to remain in its original condition of unimproved be applied to and for the benefit of the hospital; and he gave moorland pasture. and devised to his said trustees the estates vested in him by way of mortgage or otherwise (subject to the equities and upon the trusts affecting the same), and also all the residue of his real estate and the proceeds thereof which by any law to the contrary might not by that will pass to the said hospital, fully relying upon his said trustees to carry out his wishes and desires. The trustees claimed part of the proceeds of the real estate beneficially under the ultimate gift; but the Court held upon the evidence that the testator had communicated his intentions to them, and consequently they were to hold upon a secret trust for the benefit of the hospital. The question then arose as to who was entitled to these proceeds. Chitty, Q.C., and Millar, contended that the will of 1865 had not been revoked, and consequently that the proceeds belonged to the widow of the testator. Marten, Q.C., and Phillpotts, for the heir-at-law. Southgate, Q.C., Everitt, and Bush, for other parties. THE MASTER OF THE ROLLS said that if the ultimate gift was an express trust, then the case of Tupper v. Tupper (1 K. & J. 665) shewed that the prior will was revoked, even if the gift failed by the incapacity of the devisee; and if the ultimate gift was intended to be a beneficial gift to the trustees, the prior will was also revoked, notwithstanding that the gift failed by reason of the secret trust: the widow therefore was not entitled, and he decided in favour of the heir-at-law. In 1864 the defendant Horner removed a portion of the sur- Southgate, Q.C., and Whateley, for the plaintiff. THE MASTER OF THE ROLLS held that as the prior covenant Railway Company - Lands injuriously affected - Arbitration Taking up Awa-Lands Clauses Consolidation Act, 1845 (8 Vict. c. 18), ss. ¿5, 68. Mr. Harper claimed to be entitled to compensation from the Great Eastern Railway Company in respect of certain property which he alleged to be injuriously affected by works of the company in course of construction. The question of compensation was 1 eferred to arbitration; and an award had been made, but was not taken up by the company. Upon the application of Mr. Harper the reference to arbitration was made a ule of this Court, (Law Rep. 18 Eq. 539). Graham Hastings, for Mr. Harper, now moved under s. 35 of the Lands Clauses Consolidation Act, 1845, that the company might be ordered to take up the award within four days, at their own expense, and to furnish a copy to Harper. Smart, for the company, contended that the section applied only to cases of compensation for lands taken by the company, and did not extend to cases of compensation for lands injuriously affected. THE MASTER OF THE ROLLS made the order. In this case the bill had been amended four times, and replication filed. Afterwards the plaintiffs informed one of the defendants that they were willing to abandon a large portion of the case, and a summons was taken out asking that the plaintiffs might be at liberty to withdraw replication, and amend their bill for the fifth time by striking out a large portion thereof, upon the terms of paying the costs of so much of the suit as related to the portion of the case proposed to be abandoned. This summons was, however, opposed by another defendant, and the application was refused. The defendant to whom the original proposal had been made, and who was willing to consent to an order on the said summons, now applied by summons that the plaintiffs might be ordered to pay the costs of so much of the suit as related to the portion of the case proposed to be abandoned. Southgate, Q, C. and Rendall, for the application. THE MASTER OF THE ROLLS held that there was no precedent Will-Specific Devise of Real Estate-Apportionment-Apportionment Act, 1870 (33 & 34 Vict. c. 35). This was a special case filed by the trustees of the will of Samuel Pedley, dated the 31st of December, 1869, for the purDec. 4. pose of obtaining the opinion of the Court on certain questions, which had arisen in the administration of the trusts. The testator made several codicils to his will in the years 1871 and 1872 and died on the 9th of June, 1873. Two of the points raised were the following: (1) whether the Apportionment Act, 1870, applied to a will made before the passing of the Act by a testator who died after it came into operation; (2) whether the Act applied to a specific devise of real estate. Colt, for the plaintiffs. Mandatory Injunction-Furming Covenant-Waste. The plaintiff in 1835 granted a lease of a plot of ground near Halifax to a party under whom the defendants claimed for a term of years which had not yet expired. The lease contained a covenant on the part of the lessee, within five years from the date of the lease, to break up and cultivate the plot according to the best and most improved method of husbandry pursued in the neighbourhood of the premises, and keep the same and every part thereof clean and in good farming and husbandry-like condition. Instead of laying down the plot in grass, which would have been the proper performance of the covenant, the lessee W. C. Druce, for the defendants. THE MASTER OF THE ROLLS held that the Act applied in both cases. Solicitors: Turner & Son. V.-C. M. In re EMMA SILVER MINING COMPANY. motion. Dec. 2. pledging himself to conform to the agreement of October, 1873, and to do no further harm in any way to the business or the sale of the "Hop Supplement.' printed circular had been then recently issued, headed "Estcourt's In the month of January, 1874, the plaintiffs discovered that a Hop Essence. Sole proprietor, James Taylor;" offering for sale a preparation therein called Estcourt's Hop Essence, and the plaintiffs believed that such circular was in fact issued by James Taylor at the suggestion and instigation of the defendant, Charles Estcourt, and that the name of James Taylor was used only for the purpose of evasion and concealment. The defendants "The panies Act, and the memorandum of association was signed by Hop Essence Company," were duly incorporated under the Combrother of J. Taylor), Henry Estcourt (a brother of Charles Estseven persons, Frederick Estcourt, J. Taylor, Henry Taylor (a court), John Brierly and Robert Brierly (brothers-in-law of Frederick Estcourt), and Uria Spratt, described as manager of the company. This company were selling under the name of a substance identical with or only colourably A petition was presented for the winding-up of the Emma Silver Mining Company by a shareholder having shares to the amount of 22751. The petition was opposed by the company, and their secretary had made an affidavit, upon which he was cross-examined before a special examiner appointed by the Court. He then refused to produce the books of the company, and a motion was now made that the secretary might be ordered to produce such books before the examiner for inspection. Cotton, Q.C., and Graham Hastings, in support of the J. Pearson, Q.C., and Colt, for the secretary and for the company, contended that the secretary was not the proper person against whom an order to produce the books could be made, and that no such order could under any circumstances be made, unless the company had been actually ordered to be wound up. The alle-Hop Essence gations were not sufficient to shew a case for winding up the differing from the "Hop Supplement." company, and the only documents which the petitioner was entitled to see were those provided for by the Winding-up Acts" Hop Essence" in accordance with the secret process of the The bill charged that the defendants were manufacturing the in regard to all shareholders. THE VICE-CHANCELLOR said this was a company which had Charles Estcourt, and that the defendant, Charles Estcourt, plaintiffs by means of information given by the defendant started with a capital of one million, all of which had been sub- though not a member of the company, was, by virtue of a secret scribed for. They had paid 18 per cent. for the first ten months, agreement, entitled to a large share in the profits of the busiand then had to borrow money to pay dividends for the follow-ness. That the sale of the "Hop Essence" by the defendants ing two months, since which they had paid none for the last two had greatly injured the plaintiffs' business, and that such sale, so years. There were allegations of fraud which, if proved, would be far as regarded Charles Estcourt, was a gross breach of faith ample ground for making a winding-up order. Under the cir- towards the plaintiffs, and a violation of the agreements of the cumstances he could not allow the company to refuse production 17th of October, 1871, and the 15th of August, 1873, and that of their books, which would shew whether the allegations in the the company was making use, for its own benefit and to the petition were true. The secretary was put forward by the injury of the plaintiffs, of the knowledge acquired by the defendirectors to make an affidavit, and must be considered as repre- dant Charles Estcourt by means of the agency in which he was senting the company, but to prevent difficulty he would give employed by the plaintiffs, on the faith and promise that he leave t amend the notice of motion, and make an order upon would not avail himself of such knowledge or injure the the company by their secretary to produce the books, and that plaintiffs. the secretary do attend before the examiner with the books of the company, and allow them to be inspected. The costs would be costs in the winding-up. Solicits: Harper, Broad, & Battcock; Turners & Knight. V.-C. M. ESTCOURT v. ESTCOURT HOP ESSENCE COMPANY. manufacturing or selling the said "Hop Essence," or any other The bill prayed an injunction to restrain the defendants from substance being identical with or only colourably differing from the said "Hop Supplement," and from disclosing to any person the secret of compounding the said "Hop Supplement ;" and to restrain the company from trading under the name of "The Dec. 3. Estcourt Hop Essence Company," for carrying on the business of manufacturing and selling any substance intended to be used as a substitute for hops in brewing, and from using any designation calculated to lead purchasers into the belief that such substance was the "Hop Supplement" manufactured by the plaintiffs, or substantially equivalent thereto. Injunction-Trade Secret-Employer and Agent. The bill stated that the plaintiffs Thomas Estcourt and N. Bradley had for some years carried on in partnership the business of brewers and analytical chemists at Manchester, and were manufacturers of "Hop Supplement," a substance used in brewing, in part substitution for hops, the ingredients of which were kept a secret and known only by the plaintiffs. On the 17th of October, 1871, the defendant, Charles Estcourt, who was a son of the plaintiff Thomas Estcourt and brother-in-law of N. Bradley, was engaged by the plaintiffs as their agent for the sale of the "Hop Supplement," and he then promised that he would not divulge the secret of the ingredients therein contained, and signed an agreement that he would not directly or indirectly sell at any time or be connected with any other substance which could be used as a substitute for hops. Charles Estcourt continued to act as the plaintiffs' agent until the 1st of July, 1873, and during that time he acquired a knowledge of the plaintiffs' secret. He then gave notice to the plaintiffs that he should no longer continue to act as their agent, and shortly afterwards he commenced selling under the name of the plaintiffs' firm a substance which he called "Hop Essence," but which was identical with, or only colourably differing from, the "Hop Supplement." The plaintiffs filed a bill against Thomas Estcourt on the 13th of August, 1873, to restrain him from continuing such sale, and he thereupon made full submission, and signed an agreement Higgins, Q.C., and Hemming, for the plaintiffs, rested their case upon two grounds; first, fraud in discovering the secret of the plaintiffs while their agent and using it to the prejudice of the plaintiffs; and secondly, adoption of the name and imitation of the labels and packages of the plaintiffs. Glasse, Q.C., and Millar, for the company. THE VICE-CHANCELLOR said if this case rested only upon the imitation of a trade label there might not have been sufficient similarity of labels to warrant him in granting an injunction, but it depended upon an accumulation of facts all tending to shew that the defendants had adopted a systematic plan for the purpose of injuring the plaintiffs in their business. The evidence went to prove a deliberate intention on the part of Charles Estcourt to break the contract he had entered into, and to sell a compound which, whether exactly similar or not, the public were to believe was the compound manufactured by the plaintiffs. The pretended company he considered to be a mere sham, got up for the purpose of carrying out the scheme for appropriating a portion of the plaintiffs' business. The injunction must, therefore, be granted in the terms of the prayer. Solicitors: Hopwood & Sons; Pritchard, Englefield, & Co. V.-C. M. In re REHOBOTH CHAPEL. Dec. 4. Lands Clauses Act-Payment out of Court-Purchase-money of Freeholds-Investment in Leaseholds-Charity Trustees Persons absolutely entitled. This was a petition to take out of Court part of a fund which had been paid in under the Lands Clauses Consolidation Act as the purchase-money of a freehold Nonconformist chapel which had been taken by the East London Railway Company. It was proposed to apply the money asked to be taken out in the purchase of a leasehold chapel, to be used in the place of that which had been taken. Glasse, Q.C. (Locock Webb with him), for the petitioners. T. C. Wright, for the company, referred to Ex parte Macaulay (23 L. J. (Ch.) 515), as a decision that the Court would not allow the purchase-money of freeholds to be laid out in the purchase of leaseholds. Glasse said that Ex parte Macaulay was the case of an estate settled in strict settlement. The trustees of the chapel were persons absolutely entitled. THE VICE-CHANCELLOR made the order. ; V.-C. M. In re ALISON'S TRUSTS. Dec. 4 Marriage in Foreign Country-Validity-Personal Disqualification not such by English Law. This was a summons to vary the chief clerk's certificate on a petition for payment out of Court of a fund representing a legacy given by the will of Charles Alison, late British minister at Teheran, to one Vadine Rafael, an Armenian Christian woman, who for some years down to the time of his death, on the 29th of April, 1873, had been kept by him as his mistress. The question was, whether the petitioner was, as she contended, a feme sole, and entitled to receive the legacy, or had contracted a valid marriage with a Mr. Ongley, who at the time of the death of Mr. Alison was vice-consul at Teheran. Administration Suit-Costs-Specific and Residuary Devise. W. Jackson by his will, dated March, 1872, made specific bequests and devises to his wife, and gave and devised to his trustees his real estate, and made several specific devises to perpersonal estate to his wife, whom he appointed executrix. He sons named in his will. He gave the residue of his real and died shortly afterwards, and his widow filed a bill to administer the trusts of his will. The cause came on at the hearing and the Court made the common decree, with several inquiries as to the specific devises. The chief clerk certified that there were no debts, but the personal estate being insufficient for payment of the costs of the suit, a question arose as to how the deficiency ought to be made good. Davey, for the widow, the executrix, contended that the great expense of the suit had been incurred in respect of the real estate, and that those costs should be borne by the devisees. At all events, he contended that the specifically devised personalty and realty should be applied rateably with the residuary real estate to make up the deficiency after the personal estate should have been exhausted. J. Cutler, Dunning, Fellows, Druce, and F. C. J. Millar, for the specific devisees, contended that the deficiency should be made good, at least in part, out of the residuary personalty and realty. Owen appeared for the trustees. Nash and Carson for other parties. THE VICE-CHANCELLOR said the authorities were in an un estate. The facts were, that when Mr. Alison died the petitioner was, and was known to be, enceinte by him, but it was shortly after-satisfactory,state, and irreconcilable. He should, however, direct wards proposed that Mr. Ongley should marry her, and applica- that the deficiency must be made good rateably out of the tion was made successively to two priests of the Armenian specifically devised realty and personalty and residuary real church, into which the petitioner, when an infant, had been baptized, and of which she stated that she had since remained a member, to perform the ceremony. But the priests both declined on the ground that by a law of the Armenian church, the existence of which law was proved, no pregnant woman could contract a valid marriage. A Roman Catholic priest at Teheran was then applied to, and he after obtaining, by telegraph, a dispensation from his ecclesiastical superior, as on the ground that one of the parties only was a member of the Roman church, Mr. Ongley being, as was stated, a member of the Church of England, performed the ceremony of marriage between them in a private house. The ground for the suggestion that the petitioner was a Roman Catholic was, that her father was an Italian, who had married her mother, an Armenian Christian, and had died before the petitioner's birth, and that she had been confessed by the Roman Catholic priest before the marriage ceremony was performed. It was in evidence that by the law of Persia the marriages of Christians were held good if valid according to the law of the particular denomination to which the parties belonged. The chief clerk had found that there was a good marriage, and the motion was to vary his certificate in that respect. W. Pearson, Q.C., and Renshaw, for the petitioner, contended that the marriage was invalid both as an English and as an Armenian marriage. Higgins, Q.C., and W. W. Karslake, for Mr. Ongley, contended that there was a good marriage according to English law. Glasse, Q.C., for Mr. Hill, one of the trustees of the will. Solicitors for the plaintiff: Bischoff, Bompas, & Bischoff. Solicitors for the defendants: Pitmin & Lane; P. B. Matthews. V.-C. H. ARNOLD v. DIXON. Nov. 22. Real Estate-Partition-Decree for Sale-Conversion. A suit having been instituted by beneficiaries for the administration of the estate of two sisters named Dixon, and for a partition, the Court thought that a sale would be more beneficial, and ordered a sale accordingly. After the decree, but before the sale was effected, H. G. Dixon died intestate. The sale was subsequently carried into effect, and the proceeds paid into Court. H. G. Dixon left a brother, Ralph L. Dixon, who took out administration of his estate, and a sister, Mrs. Ripley, who was married, and all whose property was settled. A question was now raised whether the order to sell before the death of H. G. Dixon, followed by the actual sale afterwards, operated as a conversion. Pemberton, for the trustees of Mrs. Ripley's settlement, claimed one moiety of the proceeds as personal estate, and cited Steed v. Preece (Law Rep. 18 Eq. 192), to show that the estate had been converted by the order for sale. Tremlett, for the heir-at-law, contended that in the case cited the sale took place after the death, but here it was before. Brodrick and Wilkinson appeared for other parties. THE VICE-CHANCELLOR said he did not think the distinction |