The Express.
London, England, 1847-11-15 00:00:00

EQUITY COURTS.

Bt tae the lot;1-6anteliOr.

Ex PARTE BUTTERFIELD. PROOF IN strerxer ow
TRUST PROPERTY ADVANCED TO FIRM W111,.11 BECOMFA
SA-VERCPT.—This was an appeal from an order of the Court
of Review, directing the admission of a proof, which had
been rejected by Mr. Commissioner Holrocd. A testator,
named Thomas Butterfield, who had carried on business as
a draper at Royston, by his will directed that it should be
lawful for his wife to retain in her hands, and employ in car-
rying on the trades or businesses in which he might be en-
gsged at his decease, any part of his assets not exceeding
6,0001., so long as she should think fit, dein should continue
his widow; and he appointed his wife and son as his exe-
cutrix and executor, together with another executor who re-
nounced probate. The testator died in June, 1832 ; and in
August, 1832, the widow took the son into partnership in
carrying on the Wallies, of which the son thenceforth had
the entire management. In December, 1845, the mother
and son became bankrupts, and at the time of the bank-
' ruptcy their receipts, in respect of the testator's
estate, exceeded their xpenditure by 8,9211. sa. 9d. It
was in evidence before the commissioners that 6,0001., part of
the above sum had been sued in the partnership trade. A
proof was tendered under the fiat of the whole sum of
8,92141x:9d. ; but the commissioner, considering the sum of
6,0001. as having been invested in the business, in conformity
with the trusts of the will, only admitted the proof for the
balance of 2,9211. is. 9d. This decision was reversed by the
Vice-Chancellor Knight Bruce, sitting in the Court of Re-
view, on the ground that the direction in the will tv the
wife to retain and employ 6,0001. in the testator's trade d:d
not entitle her to take her son into partnership, and entrust
the fund to him, but meant that she should carry on the
trade alone. From the latter decision the assignees appes led,
land the case was argued by Mr. Swanston, Mr. Russell, and
Mr. Cheadle's, in November lan.—The Lord Chancellor now
gave judgment, and s as of opinion that the rejection of the
proof by the commissioner was right. In "Es pane
Garland' (10 Vesey, 110), an executor wan directed
by the will to carry on the trade with a limited por-
, tion of the meets, and there were questions which did not
exist in the present case ; but Lord Eldon in that case con-
eluded by expressing an opinion that the property declared
to be embarked in the trade should be answerable to the
creditors of the trade. The employment in the trade here
was what the will authorised, to the extent of 6,0001. • and
the respondents were only entitled to prove for the balance.
The result was that the decision of the commissioner most
be restored, and the order reversing it discharged.
MANN V. STISPHENS.—INJUNCTION.--ORDER TO COY-
MlT.—The Lord Chancellor gave judgment in this matter,
which was a motion argued last April, and then reported in
this paper, to discharge an order of the Vice-Chancellor to
commit the defendant for breath of an injunetion granted
by his Honour to restrain the defendant from building •
brewery, or house of entertainment, in a place called the
Windmill, at Gravesend. The question was, whether the
covenant in the defendant's lease permitted such a building
in a place called the " Dell," and what was the boundary of
that place. His lordship then ordered the injunction to
I stand until the plaintiff brought an action at law ; and now
giving his final judgment, after stating the evidence as to
the locality of the "Dell," has lordship was of opinion that
the injunction ought to be discharged, leaving the plaintiff
at liberty to bring his action.
Moonset:us v. MORRISON.—THE OPENINO Accot NTS
REPUICED.—The Lord Chancellor gave judgment in this
cue also, which was argued before his lordship last January,
upon appeal from an order of Vice-Chancellor Wigram,
made in the petition of William Morrison Wyllie, and his
infant children, praying for the re-opening of consignee's
accounts in the cause. George Morrison, by deed dated in
1813, and by will dated in 1811, conveyed and devised
certain Wert India estates to trustees, for the bene-
fit of his son and four daughters. Mr. Edward
Ellice was one of the trustees. A bill was pled for

titeraisidalatiation of the state in 1813, and a decree
was made thereon in 1817. Settlements were after-
wards executed on the marriage of the daughters, and in
two of them Mr. Ellice was appointed a trustee. In I°l9,
Mr. Ellice was appointed consignee to the estates, and he
continued so until 1830, when he was diecharged at his re-
quest. In 1831, a petition was presented by the parties
interested in the estates, complaining of all the acts done
since and under the decree of 1517, and praying that the
accounts taken under the decree of 1519 end another decree
in a suit instituted in 182-5 might be again taken against Mr.
Ellice. No objection being made by him, a reference wan
made to the muter, who again went through the accounts,
and reported on all except the accounts of the con-
eigneeship. The present petition was presented in
1846 (in a new cause instituted in 1844), for opening
the accounts once more, on the ground that the peti-
tioner had not been a party to the taking of the accounts
before, he being then a minor and for some time afterwards
in want of means to move in the matter. The Lord Chan-
cellor, after stating at great length the various suite, and pro-
ceedings taken in them. since 1817, wu of opinion that the
petition should be dismissed.
His lordahip after giving judgment in another matter of
no general interest proceeded to bear appeals.

Before the Tice-chanosdor of
Gcrxxs r. Ltutn.-IN.ic:cl7ios.s-tircatoisr..—Mr.
Ilethell and Mr. Southgate moved in this case for an inju no-
tion to entrain the dellendant, who was the proprietor a
publication called the Gardener, Florist,. and Agricultural
Magazine," front pirating certain
II articleidpublished in this
"Horticultural Magazine." The plain bad been the
proprietor of the latter periodical up t June last, sines
which time be bad been the editor, but had retained the
copyright in certain articles, which had been copied in some
in,tances verbatim into the defendant's publication, sad
wiliont acknowledgment. The plaintiff had.mitaplaig
the defendant of the coo Ine ', but since the eetrielietawe

spon the 'abject, the defendant bad still continued the
pasties eolop!ained of. The Vice-Chancellor, after coin-
faring the articles in the two publications, granted the
Injunction.

HADDAM V.SMITIL—RIGHT TO 17811 A PATENT TOR RAIL-
WAT plaintiff was the owner of certain
patents for the construction of wheels for carriage., and fur
a particular form of carriage to be used upon railways, and
had granted a license to the defendant Smith for the use of
these patents. The plaintiff subsequently put in a dis-
claimer (under the set of parliament authorising him in
that behalf) to • portion of the invention included
is the patents, and the defendant was to pay him
a particular amount, by way of royalties, for the
manufacture of the articles under the patents, This bill
was tiled against the defendant Smith, and against a person
named Wiliey, with whom Smith had associated himself, for
an account of the sums due to the plaintiff, but in case the
pinintifre right should be disputed, then the hill prayed an
injunction to restrain the defendants from continuing to
work the patents. To this bill a demurrer was put in, upon
the ground that the disclaimer by the plaintiff had dasen-
titled him to an account, and that the license was revoked
thereby. For the bill, it was contended that the prayer
being in the alternative, either for relief or for an injunc-
tion, the demurrer ought to be overruled.—The Vice-Chan-
cellor said it appeared to him the bill was framed in such a
manner no to raise the question, not whether the heelless was
void, but whether it was lawful for the defendants
to go on doing the thing they had done under the Mecum-
stances stated. The plaintiff was willing to allow the de-
fendants to proceed, provided they paid him for so doing.
It wee reasonably plain that if they were not bound by the
license, and therefore not bound to account, they were both
acting without the authority of the plaintiff. It was clear to
his Honour that the defendants were not justified in con.
tinning to act as they had done, without remunerating the
plaintiff; be should therefore overrule the demurrer, with
toots.

GOVOII O. BIat.—CONISTRUCTION OF A WILL:A ques-
tion was raised in this came on demurrer upon the construc-
tion of the will of a gentleman named Bult, dated the sth of
June, 1819, and containing the following bequest:
•' Whereas I have not heretofore by this my will made any
provision for raising a particular capital or sum to enable
my sons to begin and carry on business; and where-
as I may not have sufficient ready money or stock
in the public funds, or other securities to pay the
legacies bequeathed by me ; now, it is my will, and I
hereby order end empower my trustees at their free will and
pleasure, sad without the consent of my wife, either by pub-
lic suedes sr private contract, to sell and dispose of such
pert Mary meesusges or tenements and premises hereinbefore
gins*, orlanadedforithe benefitofsayeaid wife, for the most
amiss id best price that can be obtained for the same, and
to pay snob parts of the monies to arise from such sale, not
exceed/la[ SW sues of 2,0001., to each of my said sons for
MOMS Was or either of them up in business, or for such
e* parsons as my said wife shall think proper and most
bonsfloial for my said eons, and to pay the residue of inch
moneys, if required, in aid of the legacies herein-
by me given, and also in payment of the debts which
I owe at the time of my decease." The question was,
whafasr, under this clause, the representatives of the ter
Mort see, John, who had died, were entitled absolutely to
the sena of 2,0001., or whether such sum was only to be paid
for his benefit at the discretion of the testator's wile.—Mr.
Stuart and Mr. Stinton appeared in support of the demur-
rer, and Mr. &then end Mr. James for the bill.—The Vice-
Chancellor said the duty et the court was to give the natural
construction to the words of the will ; the subsequent events I
had nothing to do with the case. If, when the testator died,
his MD John had a right to require the trustees to raise the
sum of 2,0001. to be paid to him either for the purpose of
setting him up in business, or for such other purposes as the
testator's wife should think proper or moat beneficial for
him, it was then the duty of the trustees to raise that sum.
It would be ridiculous to say that because the trustees had
not done this, that therefore nothing was to be raised. It
was elm that the son John had a right to 2,0001. or
nothing, and his mother had merely a discretion
as to the application of it. It it had happened
that on the death of the testator John had been alive, he
would have been entitled to the 2,0001., and whatever right
he had vested in him that interest went to his repreeenta-
tine ; and though the trust was not executed, his executors
had perfect right to call upon the trustees now to execute
the trust, and have the sum of 2,0001. raised for their
benefit.