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Adams for an account of the share of the two lunatics in the TABLE OF CASES.
purchase-money of the real estate and the proceeds of the minerals. A compromise was made in this suit, which was confirmed by the Court, and an order was made in Chancery and Lunacy
confirming the sales and leases, and directing the committee to &quity.
concur in the conveyances, and that the proceeds of the sale of BATLEY v. KYNOCH (Patent-Trial of Issues Particulars of the real estate and the proceeds of the minerals should be Breaches) . .
V.-C. B. 209 carried to separate accounts in the lunacy. LONDON AND PARIS BANKING CORPORATION, In re (Company
Martha died in 1867, leaving Mary her heir-at-law and sole Winding-up-Creditors' Petition Disputed Debt) M. R. 209 next of kin, and accordingly both the sums were carried to the SMITH (A LÜNÁTIC), In re (Conversion-Lunatic': Estate-Sale of
credit of her estate. Real Estate-Lease of Mines—Tenant in Common-Lunacy
Mary was now also dead, and petitions were presented by her Regulation Act, 1853, 88. 124, 130, 131) • . L. JJ. 209 heir-at-law and personal representative respectively claiming
the two funds. Common Law.
J. Pearson, Q.C., and Everitt, for the heir-at-law.
Ince, for the personal representative. HOPE v. HOPE AND ERDODY (Dissolution of Marriage-Variation
Eyre, for the next of kin. of Settlement-Appointment of New Trustees-22 & 23 Vict.
THE LORDS JUSTICES were of opinion that the Court had no c. 61, s. 5) . . .
authority under the Lunacy Regulation Act or otherwise to LAURIE 1. WILSON (Practice-Costs—- Refreshers) . . C. P. 210 VAUGHAN V. WELDON (Practice-Common Law Procedure Act,
convert the real estate of the lunatics into personalty; and 1852, 8. 18—Cause of Action) . . . . . C. P. 210
therefore that the order confirming the sales and leases had no such effect. They also held that the leases of the minerals were
in substance sales, and that the consideration money must be During the sittings of the Courts THE WEEKLY NOTEs will be published considered as real estate. But they were of opinion that as on Saturday, and will generally comprise Notes of the Decisions up to
to all sales in which Mary concurred before she became of unand including those of the previous Wednesday. An cases of permanent
sound mind the proceeds were converted into personalty, both
as to ber own share and that of her sister, which had devolved interest noted herein will be reported in full in The Law REPORTS.
upon her. With that exception the proceeds, both of the absolute sales and of the mining leases belonged to her heir-atlaw.
Solicitors: S. F. Miller & Son, agents for J. H. Thursfield, Wednesbury; Clarke, Woodcock, & Ryland.
Nov. 21. L. JJ. In re SMITH (A LUNATIC).
In re LONDON AND PARIS BANKING CORPORATION. Conversion-Lunatic's Estate—Sale of Real Estate-Lease of Mines Company-Winding-up-Creditors' Petition-Disputed Debt.
-Tenant in Common-Lunacy Regulation Act, 1853, ss. 124, This was a petition to wind up the company by a creditor 130, 131.
claiming a sum of upwards of 2001. for goods supplied 'to the In this case petitions were presented by the heir-at-law and company. The company refused to pay the whole amount personal representative of Mary Smith, a lunatic, claiming two claimed by the petitioner, and he thereupon served the company sums of money, one of which had been produced by the sale
a statutory notice as provided by s. 80 of the Companies Act, of part of her real estate, and the other by leases of the minerals 1862, and also commenced an action against the company. The under the estate.
company tendered to him a sum less than the amount of his Tbe lunatic and her brother and sisters, Samuel, Martha, and
demand; but he refused to accept it, and at the expiration of Sarah, were entitled as tenants in common in fee to certain real
three weeks from the service of the demand filed this petition. estate.
After the petition had been filed the company paid into Court Previously to 1853 Martha became of unsound mind, and
in the action a sum exceeding the amount tendered, but less Samuel, Mary, and Sarah sold part of the real estate and con-|
than the amount of the demand. veyed their undivided three-fourths to the purchasers, covenant
The petition now came on to be heard. ing that Martha would confirm the sale as to her fourth part,
There was evidence to shew that the company was solvent, and in the meantime that they would hold one-fourth of the pur
and that the petitioner was in fact the only unpaid creditor. chase-money in trust for her.
Southgate, Q.C., and Oswald, for the petition. In 1854 Mary also became of unsound mind, and soon after- || Bagshawe, Q.C., and Dundas Gardiner, for the company. wards Samuel and Sarah sold certain other parts of the estate,
THE MASTER OF THE Rolls said that there was in this case and conveyed their undivided two-fourths to the purchasers a bonâ fide dispute as to the debt, and evidence that the comcovenanting that Mary and Martha would confirm the sales as pany was solvent, and under these circumstances he could not to their undivided shares, and in the meantime that they would make a winding-up order; further he was of opinion that the hold two-fourths of the purchase-money in trust for them. They | petition was not presented with
petition was not presented with the view of winding up the comalso granted leases of the minerals under the estate in considera- pany, but for the purpose of compelling them to pay the peti. tion in each case of a gross sum to be paid by instalments
tioner's demand ; and he dismissed the petition with costs. in a limited number of years.
Solicitors : Crook & Smith; Innes & Son. In 1856 Sarah died, having by her will given her real and personal estate to Samuel, Mary, and Martha equally. After her death Samuel dealt with other parts of the real estate and the
V.-C. B. minerals under it in a similar manner.
BATLEY v. KYNOCH.
· Nov. 25. In 1861 Samuel aied, having appointed J. F. Adams his
Patent-Trial of Issues— Particulars of Breaches, executor.
This was a motion on behalf of the defendants to a bill to In 1862, Martha and Mary were found lunatic by inquisition, restrain an alleged infringement of a patent, that plaintiffs might and a bill was filed by the committee of both estates against be ordered to deliver further and better particulars of breaches.
The defendants having disputed the validity of the invention, in England: that the judges of the Court of Queen's Bench, and denied infringement, the following issues had been di- though still adhering to the opinion they had pronounced in rected for trial before the Vice-Chancellor without a jury :- Allhusen v. Malgarejo (Law Rep. 3 Q. B. 340) had agreed to follow 1. Whether Messrs. Jones were the first and true inventors of the opinion of the majority; and that, consequently in future all the undisclaimed portions of the patent; 2. Novelty of inven- the courts would follow Jackson v. Spittal. The rule was theretion ; 3. Infringement.
fore discharged. On the 12th of November plaintiffs moved for an order to be Rule discharged. allowed to inspect the manufactory of the defendants and all Attorneys for plaintiff : Gregory, Rowcliffes, & Rawle. cartridges and machinery therein. This application was refused Attorneys for defendant: Linklater & Co. (see ante, p. 197).
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 (tho C. P.
LAURIE v. WILSON.
Nov. 25. day of filing the bill) had made or sold cartridges made in the
Practice- Costs-Refreshers. manner described in the specification as amended by the dis
| A rule nisi had been obtained for a review of the taxation of claimer : viz., in particular, cartridges made respectively with a costs in this case. The master had disallowed certain fees paid 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 such disallowance that the application to the Conrt was made.
naving a cap or to counsel for refreshers, and it was by way of appeal against
more with the head, as and for the purposes mentioned in the said
Sutton shewed cause. specification.
Butt, Q.C., appeared in support of the rule. Swinston, Q.C., and Macrory (E. C. Willis with them), for the
LORD COLERIDGE, C.J., stated that the master bad reported defendants, in support of the motion, contended that plaintiffs
that the fees had been disallowed in pursuance of the general were bound to give defendants by the particulars of breaches
practice of the Court theretofore, which, differing from that of the distinct notice of the case which they would have to meet, and to
Courts of Queen's Bench and Exchequer, had been never to allow specify the time, place, and manner of, and the particular parts
the particular parts refreshers; that the Court wished their practice for the future to of the specification relating to, the alleged infringement.
be assimilated to that of the other courts, and consequently the Kay, 'Q.C., and Aston, Q.C. (Locock Webb with them), for plain
matter would be referred back to the master to exercise his distiffs, contended that thoy were not bound to give any further
cretion on the question whether in this particular case the particulars than those already given.
| refreshers ought to be allowed. THE VICE-CHANCELLOR said it was the duty of the Court to
Rule absolute. take care that by the particulars of breaches full, fair, and
Attorneys for plaintiff: Freshfields & Williams. distinct notice of what was complained of should be given to the
Attorneys for defendant: Pritchard & Sons,
-which plaintiffs, who had been refused access to the defen-
HOPE v. HOPE AND ERDODY. Nov. 24. the patent, had been made exhibits. It was not the case of a complicated machino, in which plaintiffs might very properly be
Dissolution of Marriage-- Variation of Settlement- Appointment of required to point out what particular portions they alleged to
New Trustees—22 & 23 Vict, c. 61, s. 5. have been infringed. The motion must be refused with costs. In this case a decree nisi for dissolution of marriage was made Solicitors : Stibbard & Cronshay; Treherne & Wolferstan. 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 appli
cation of the capital or income of the trust funds or any part O. P. VAUGHAN v. WELDON.
thereof, and all other powers and authorities whatever, shall
henceforth operate and be exercisable in the like manner and Practice-Common Law Procedure Act, 1852, s. 18–Cause of
by the like person or persons as if the respondent had died on Action.
the day of the date of the order. The petitioner had brought Motion to set aside the proceedings upon a writ issued under into settlement a large sum of money, and the respondent a the 18th section of the Common Law Procedure Act, 1852 (15 & reversionary interest in 30,0001., over which she was still to have 16 Vict. c. 76).
control. The registrar reported in favour of the alterations The action was brought upon a contract made abroad for a agreed upon. breach of such contract committed in England, and the question Day, Q.C., and Hemming, for the petitioner, applied to the was, whether it was necessary under s. 18 of the Common Court to carry out tho agreement of the parties, and to confirm Law Procedure Act, 1852, that the whole cause of action should the report of the registrar. have arisen in England, or whether it was sufficient that the Dr. Spinks, Q.C., for the respondent. breach should have taken place in England, a point as to which Inderwick, Q.C., and Stephen, for the trustees. there have been conflicting decisions in the courts.
Nov. 24. THE JUDGE ORDINARY expressed a doubt whether A. L. Smith shewed cause against the rule.
he could interfere with a wife's right, secured to her by settleThesiger, Q.C., supported the rule.
ment, to join in the appointment of new trustees, but in the Nov. 20. LORD COLERIDGE, C.J., gave judgment, stating that present case refused to do so because the trustees were not only there had been a conference of the judges with a view, if possible, trustees of the fund settled by the petitioner, but also of that to securing uniformity of practice in relation to the question, I belonging to the respondent, in which it was still intended she and the majority of judges were in favour of the opinion of should have an interest. the Court of Common Pleas in Jackson v, Spittal (Law Rep. Attorneys for petitioner: Young, Jackson, & Co. 5 C. P. 542) viz., that it was sufficient if the breach took place Attorneys for respondent: Lyne & Holmun.
TABLE OF OASES.
During the sittings of the Courts THE WEEKLY NOTEs will be published on Saturday, and will generally comprise Notes of the Decisions up to and including those of the previous Wednesday. All cases of permanent interest noted herein will be reported in full in THE LAW REPORTS.
Alisox's Trusts, In re (Marriage in Foreign Country-Validity
- Personal Disqualification not such by English Law) V.-C. M. 214 ARNOLD . Dixon (Real Estate, Partition-Decree for Sale
Conversion) . . . . . . . V.-C. H. 214
L. J. J.
Doc. 3. secured-Separate Causes of Action) . . . V.-C. H. 215
In re TURNER. BAKER V. STORY (Will— Real Estate-Implied Revocation-Devise
Bankruptcy - Practice-Debtor's Summons-Security-Balance of
Probabilities. upon Secret Trust) . . . . . . M. R. 211 Coates, Ex parte.
This was an appeal from an order of Mr. Spring Rice, sitting In re LEES (Bill of Sale-Condition—Regis as chief judge in bankruptcy, made on a debtor's summons tration - Possession—Bills of Sale Act, 1854, 8. 2) Bakcy. 215 against the Rev. G. H. Turner. Emma Silver MINING COMPANY, In re (Company – Petition to
| The summons was taken out by Captain Hubback for the sum
of 5001., being the balance of a sum of 7501. which Captain wind up-Production of Books) . . . V.-C. M. 213
Hubback had paid to Mr. Turner in November, 1873, as the ESTCOURT O. ESTCOURT HOP ESSENCE COMPANY (Injunction —
purchase-money of a share in the Gurtnakelly slate quarry in Trade Secret-Employer and Agent). . , V.-C. M. 213 Ireland. Captain Hubback alleged that Mr. Turner at the time HARPER, Ex parte (Railway Company-Lands injuriously affected
of the purchase had no saleable interest in the quarry, and he
claimed a return of the money on the ground of failure of con- Arbitration—Taking up Award-Lands Clauses Consolida
sideration. Mr. Turner denied the debt, relying on an agreement tion Act, 1815 (8 Vict. c. 18), 88. 35, 68) . . M. R. 212 for final settlement of the transactions between himself and Captain HARRIS, Ex parte. In re JAMES (Bill of Sale-Act of Bankruptcy Hubback in February, 1874, at which time, as he alleged, Captain
| Hubback had full knowledge of all the circumstances and re- Notice— Payment off of Prior Mortgage-Stisfaction en
ceived back 2501., part of the purchase-money, and gave up the tered up-Costs-New Case made on Appeal) Brkcy. 215
transfer to be cancelled. On the application to dismiss the HASLECK O. PEDLEY (Will—Specific Devise of Real Estate-- Appor summons affidavits were filed by both parties, and Mr. Turner tionment-Apportionment Act, 1870 (33 & 34 Vict. c. 35) M. R. 212 was cross-examined before the registrar, who adjourned the sum
mons for the purpose of an action being brought, but being of JACKSON v. PEAsE (Administration Suit-Costs—Specific and Resi
opinion that the probability was in favour of the creditor sucduary Devise) . . . . . . V.-C. H. 214 ceeding in the action ordered Mr. Turner to give security to the MUEGRAVE v. HORNER (Mandatory Injunction - Farming Covenant amount of 10001. Mr. Turner appealed from this decision.
--Waste) . . . . . . . M. R. 212 E. C. Willis, for the appellant, contended that this was not a REHOBOTH CHAPEL, In re (Lands Clauses Act–Payment out of
proper case for requiring security.
De Gex, Q.C., and Rolland, for the creditor, referred to Ext Court-Purchase-money of Freeholds—Investment in Lease parte Lowenthal (Law Rep. 9 Ch. 324), where Lord Justice
holds-Charity Trustees Persons absolutely entitled) V.-C. M. 214 Mellish laid down the rule that where there is a question to be SNELL v. SKINNER (Practice - Abandonment of Part of Case
tried, and it is not made out to the satisfaction of the judge that Costs—Payment of Costs before Ilearing) . . M. R. 212
there is a probability that a good defence would be made out,
security ought to be required. TURNER, Ex parte. In re Turner (Bankruptcy Practice —
THE LORD JUSTICE JAMES said that he did not think this Debtor's Summons-Security–Balance of Probabilities)
was a proper case for requiring security. It was difficult to 1. J. S. 211 avoid prejudicing the trial of the action; but, weighing all the
probabilities, he was of opinion that there was at least as much Common Law.
probability of the defendant succeeding in his defence as of the
plaintiff succeeding in his action. The order must be discharged H.ORSFORD, IN THE GOODS OF (Will — Execution - Testimonium so far as it required security to be given. and Attestation Clauses with Signatures on Separate Paper
Solicitors: Poole & Hughes ; Philip Roberts, attached to Instrument by a String-Alterations unattested
Paper pasted over-Legacies) . . . . P. & M. 216
Nov. 20. surance-Loss of Freight—Delay through Perils of the Sea –
Will — Real Estate-Implied Revocation-Devise upon Secret Trust, Frustration of Adventure-Right of Charterer to refuse to load)
Isaac Britton, the testator in the cause, made a will dated the
23rd of February, 1865, whereby he gave all his real and perEx. Ch. from C. P. 216
sonal estate to his wife Emma Britton absolutely. He afterPROTAERO, IN THE GOODS OF (Administration with Will annexed wards made another will dated the 6th of May, 1867, and thereby, Insolcent Estate-Grant to a Legatee limited to Trust Property)
after making a specific gift to his wife Emma Britton, he gave
P. & M. 216 and devised all his real estate and his residuary personal estate STRATTON AND OTHERS v. METROPOLITAN BOARD OF WORKS (Poor
to trustees upon trusts for sale and conversion and investment
of the proceeds and payment of the income to his said wife Rate—Deficiency in Parochial Rates—Liability to make good
during her life; and after her decease he directed his trustees --Lands Clauses Consolidation Act, 1845, 8. 133). C. P. 216 and executors to pay the net proceeds of his said estate to the No. 34.-1874.
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. In 1864 the defendant Horner removed a portion of the surof mortgage or otherwise (subject to the equities and upon the face and made a hard crack for running foot-races on, and since trusts affecting the same), and also all the residue of his real that time the plot had been frequented as a place of amusement estate and the proceeds thereof which by any law to the con- by crowds of people who paid 3d, each for admission. trary might not by that will pass to the said hospital, fully re- The bill alleged that by the proceedings of the defendant the lying upon his said trustees to carry out his wishes and desires. herbage on the plot had been for the most part destroyed, and
The trustees claimed part of the proceeds of the real estate that the plot was no longer cultivated in accordance with the beneficially under the ultimate gift; but the Court held upon covenant, and could not be restored without considerable time the evidence that the testator had communicated his intentions and expense, and prayed that the defendants might be restrained to them, and consequently they were to hold upon a secret trust from using the plot as a place for holding races of men, horses, for the benefit of the hospital. The question then arose as to or dogs, or for shooting matches, or for playing games, or otherwho was entitled to these proceeds.
wise as a place of public amusement. Chitty, Q.C., and Millar, contended that the will of 1865 had Southgate, Q.C., and Whateley, for the plaintiff. not been revoked, and consequently that the proceeds belonged to Roxburgh, Q.C., and Jolliffe, for the defendants. the widow of the testator.
THE MASTER OF THE ROLLS held that as the prior covenant Marten, Q.C., and Phillpotts, for the heir-at-law.
to bring the land into cultivation had not been performed, there Southgate, Q.C., Everitt, and Bush, for other parties.
could be no breach of the subsequent covenant to keep the land THE MASTER OF THE ROLLS said that if the ultimate gift was in cultivation; and that, even if there had been a breach, the an express trust, then the case of Tupper v. Tupper (1 K. & J. Court could not grant a mandatory injunction to enforce farm665) shewed that the prior will was revoked, even if the gift ing covenants; and, being of opinion that the acts proved did not failed by the incapacity of the devisee; and if the ultimate gift amount to waste, he dismissed the bill with costs. was intended to be a beneficial gift to the trustees, the prior will Solicitors: Emmet & Son, for Emmet & Emmet, Halifax; Bower was also revoked, notwithstanding that the gift failed by reason & Cotton. of the secret trust: the widow therefore was not entitled, and he decided in favour of the heir-at-law. Solicitors : Mead & Daubeny, agents for Bush & Pay, Bristol : M. R.
SNELL V. SKINNER.
Dec. 5, Yarde de Loader, agents for Whübborne & Tozer, Tt, mouth; Practice - Abandonment of Part of Case — Costs — Payment of D. Travers Burges,
Costs before Hearing.
tion filed. Afterwards the plaintiffs informed one of the defenM. R. Ex parte HARPER.
dants that they were willing to abandon a iarge portion of the
case, and a summons was taken out asking that the plaintiffs Railway Company - Lands injuriously affected — Arbitration Taking up Auu: 1-Lands" Clauses Consolidation Act, 1845
might be at liberty to withdraw replication, and amend their
bill for the fifth time by striking out a large portion thereof, (8 Vict. c. 18), s. 35, 68.
upon the terms of paying the costs of so much of the suit as Mr. Har or claimed to be entitled to compensation from the related to the portion of the case proposed to be abandoned. Great Eastern Railway Company in respect of certain property This summons was, however, opposed by another defendant, and which he alleged to be injuriously affected by works of the com- the application was refused. pany in course of construction. The question of compensation | The defendant to whom the original proposal had been made, was i eferred to arbitration; and an award had been made, but and who was willing to consent to an order on the said summons, was not taken up hy the company.
now applied by summons that the plaintiffs might be ordered to Upon the application of Mr. Harper the reference to arbitration pay the costs of so much of the suit as related to the portion of was made a ule of this court, (Law Rep. 18 Eq. 539).
the case proposed to be abandoned. Graham Hastings, for Mr. Harper, now moved under s. 35 of the Southgate, Q,C. and Rendall, for the application. Lands Clauses Consolidation Act, 1845, that the company might be ordered to take up the award within four days, at their own THE MASTER OF THE ROLLS held that there was no precedent expense, and to furnish a copy to Harper.
for the application, and refused it.
Dec. 7. THE MASTER OF THE ROLLS made the order.
Will-Specific Devise of Real Estate - Apportionment-ApportionSolicitors: Broad; Shaw.
ment 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 purM. R. MUSGRAVE V, HORNER.
Der a pose of obtaining the opinion of the Court on certain questions,
which had arisen in the administration of the trusts. The tes Mandatory Injunction - Furming Covenant-Waste.
tator made several codicils to his will in the years 1871 and 1872 The plaintiff in 1835 granted a lease of a plot of ground near and died on the 9th of June, 1873. Two of the points raised Halifax to a party under whom the defendants claimed for a were the following: (1) whether the Apportiopment Act, 1870, term of years which had not yet expired. The lease contained applied to a will made before the passing of the Act by a tesa covenant on the part of the lessee, within five years from the tator who died after it came into operation; (2) whether the Act date of the lease, to break up and cultivate the plot according to applied to a specific devise of real estate. the best and most improved method of husbandry pursued in Colt, for the plaintiffs. the neighbourhood of the premises, and keep the same and every W. C. Druce, for the defendants. part thereof clean and in good farming and husbandry-like con THE MASTEB OF THE ROLLs held that the Act applied in both dition. Instead of laying down the plot in grass, which would cases. have been the proper performance of the covenant, the lessee Solicitors : Turner & Son,
THE WEEKLY NOTES,
DEC, 12, 1874.]
THE WEEKLY NOTES. V.-C. M.
Dec. 2. pledging himself to conform to the agreement of October, 1873, In re EMMA SILVER MINING COMPANY.
and to do no further harm in any way to the business or the sale Company-Petition to wind up-Production of Books of the “Hop Supplement."
In the month of January, 1874, the plaintiffs discovered that a A petition was presented for the winding-up of the Emma printed circular had been then recently issued, headed “Estcourt's Silver Mining Company by & shareholder having shares to the Hop Essence. Sole proprietor, James Taylor;" offering for sale amount of 22751. The petition was opposed by the company, la preparation therein called Estcourt's Hop Essence, and the and their secretary had made an affidavit, upon which he was plaintiffs believed that such circular was in fact issued by James cross-examined before a special examiner appointed by the Taylor at the suggestion and instigation of the defendant, Charles Court. He then refused to produce the books of the company, Estcourt, and that the name of James Taylor was used only for and a motion was now made that the secretary might be ordered to produce such books before the examiner for inspection.
the purpose of evasion and concealment. The defendants “The
Hop Essence Company," were duly incorporated under the ComCotton, Q.C., and Graham Hastings, in support of the
panies Act, and the memorandum of association was signed by motion.
seven persons, Frederick Estcourt, J. Taylor, Henry Taylor (a J. Pearson, Q.C., and Colt, for the secretary and for the company, brother of J. Taylor), Henry Estcourt (a brother of Charles Estcontended that the secretary was not the proper person against court), John Brierly and Robert Brierly (brothers-in-law of whom an order to produce the books could be made, and that no
Frederick Estcourt), and Uria Spratt, described as manager of such order could under any circumstances be made, unless the the company. This company were selling under the name of company had been actually ordered to be wound up. The alle-“Hop Essence” a substance identical with or only colourably gations were not sufficient to show & case for winding up the differing from the “Hop Supplement.” company, and the only documents which the petitioner was The bill charged that the defendants were manufacturing the entitled to see were those provided for by the Winding-up Acts “ Hop Essence” in accordance with the secret process of the in regard to all shareholders.
plaintiffs by means of information given by the defendant THE VICE-CHANCELLOR said this was a company which had Charles Estcourt, and that the defendant, Charles Estcourt, 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 18per 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 show 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 lemployed by the plaintiffs, on the faith and promise that he leave t amend the notice of motion, and make an order apon I 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 l' The bill prayed an injunction to restrain the defendants from company, and allow them to be inspected. The costs would be I manufacturing or selling the said “Hop Essence,” or any other costs in tho winding-up.
substance being identical with or only colourably. differing from Solicit.8: Harper, Broad, & Battcock ; Turners & Knight. 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 V.-C. M.
Estcourt Hop Essence Company," for carrying on the business of ESTCOURT v. ESTCOURT HOP ESSENCE COMPANY. manufacturing and selling any substance intended to be used as
a substitute for hops in brewing, and from using any designation Injunction—Trade Secret—Employer and Agent,
calculated to lead purchasers into the belief that such substance The bill stated that the plaintiffs Thomas Estcourt and N. was the “Hop Supplement" manufactured by the plaintiffs, or Bradley had for some years carried on in partnership the busi- substantially equivalent thereto. ness of brewers and analytical chemists at Manchester, and were Higgins, Q.C., and Hemming, for the plaintiffs, rested their caso manufacturers of “Hop Supplement," a substance used in upon two grounds; first, fraud in discovering the secret of the brewing, in part substitution for hops, the ingredients of which plaintiffs while their agent and using it to the prejudice of the were kept a secret and known only by the plaintiffs. On the plaintiffs; and secondly, adoption of the name and imitation of 17th of October, 1871, the defendant, Charles Estcourt, who was the labels and packages of the plaintiffs. 2 son of the plaintiff Thomas Estcourt and brother-in-law of Glasse, Q.C., and Millar, for the company. N. Bradley, was engaged by the plaintiffs as their agent for the North, for Charles Estcourt. sale of the "Hop Supplement," and he then promised that he THE VICE-CHANCELLOR said if this case rested only upon the would not divulge the secret of the ingredients therein contained. imitation of a trade label there might not have been sufficient and signed an agreement that he would not directly or indirectly similarity of labels to warrant him in granting an injunction, sell at any time or be connected with any other substance which but it depended upon an accumulation of facts all tending to could be used as a substitute for hops. Charles Estcourt con- shew that the defendants had adopted a systematic plan for the finued to act as the plaintiffs' agent until the 1st of July, 1873. purpose of injuring the plaintiffs in their business. The evidenco and during that time he acquired a knowledge of the plaintiffs' went to prove a deliberate intention on the part of Charles secret. He then gave notice to the plaintiffs that he should no Estcourt to break the contract he had entered into, and to sell a Tonger continue to act as their agent, and shortly afterwards he compound which, whether exactly similar or not, the public were commenced selling under the name of the plaintiffs' firm a sub- to believe was the compound manufactured by the plaintiffs. Stance which he called “Hop Essence," but which was identical The pretended company he considered to be a more sham, got with, or only colourably differing from, the “Hop Supplement.” up for the purpose of carrying out the scheme for appropriating The plaintiffs filed a bill against Thomas Estcourt on the 13th a portion of the plaintiffs' business. The injunction must, of August, 1873, to restrain him from continuing such sale, and therefore, be granted in the terms of the prayer. 4e thereupon made full submission, and signed an agreement Solicitors: Hopwood Sons; Pritchard, Englefield, & Co.