The Sun.
London, England, 1859-04-28 00:00:00

LAW INTELLIGENCE-April 27.

EQUITY COURTS.
(Before the Master of the Rolls.)
HOPKINS V. PENNELL.
This was an interpleader suit. The plaintiff was
indebted to a bankrupt of whom the defendants
Pennell and another were assignees. The defen-
dant Williams claimed the debt under an alleged
agreement by which it had been equitably assigned
to him. On a former occasion the plaintiff had paid
the money into court, and an order was made
under which Williams was to be at liberty to take
the necessary steps to establish his title. He there-

fore filed a second bill, but without making the
assignees parties, and the assignees now moved to
have the money paid out of court to them.

Mr. Selwyn and Mr. Collins were for the motion ;
Mr. Palmer and Mr. Higgins for the plaintiff; and
Mr. Lloyd and Mr. Steere for the defendant
Williams.
The Master of the Rolls said that the right of
the plaintiff in interpleader was clear, and that
Williams' bill was defective for want of parties, but
he would allow the motion to stand over till next
seal in order to give an opportunity to amend.
(Before Vice-Chancellor Sir J. Stuart.)
CLEMENT V. MADDICK AND OTHERS.
Mr. Malins, Q.C., Mr. J. Hinde Palmer, and Mr.
French, appeared for the plaintiffs in this case, who
are the proprietors of the Bell's Life in London and
Sporting Chronicle newspaper, for an injunction to
restrain the, defendants George Maddick, William
Henry Stephens, and Richard Vyvyan Robinson,
from publishing a newspaper called the Penny
Bell's Life and Sporting News, or from in any way
using or applying the name, " Bell's Life," to any
other newspaper or periodical without the consent
of the plaintiffs.
It appeared that on the 24th of March last the
first number of a newspaper called the Penny Bell's
Life was piblished by the defendant, George Mad-
dick, as sole proprietor. On the 9th of April the
plaintiff filed a bill seeking a declaration by the
court that they were absolutely entitled to the use
and enjoyment of the name of " Bell's Life" in the
publication of their newspaper, and to restrain
the defendant Maddick from publishing the
newspaper called the Penny Bell's Life and
Sporting News, or in any other way using or
applying the name " Bell's Life," to any other news-
paper without their license or consent. It appeared
from the statements in the plaintiffs' bill that in
the year 1824 the plaintiffs' father purchased the
copyright in Bell's Life in London, and that that
paper has been for many years published at 170,
Strand ; that from the long established and well-
known respectability of that paper, it has long
been the practice of persons in the sporting world
on making bets upon sporting subjects, to make
the proprietors the stakeholders, and that a sum of
from £B,OOO to £lO,OOO annually passed through
the proprietors' hands in that way, and that the
proprietors of Bell's Life are in the habit of receiv-
ing a large amount of correspondence from all parts
of the world, addressed to Bell's Life, London.
The plaintiffs alleged 1,,y their bill that the assump-
tion of the title Bell's _Life by the defendants would
occasion very serious loss and inconvenience to
them by reason of the miscarriage or misdeliveries
which would constantly occur of correspondence
and remittances which were intended for the
plaintiffs, and that the public would be deceived
by the defendants' paper, and thus the plaintiff'
paper would be brought into discredit. On the

EXCHEQUER CHAMBERS.
(Sittings in Error.)
Several of the Judges attended this morning,
according to previous arrangement, to give judg-
ment in the case of " Micklethwait and Mickle-
thwait."
Mr. Baron Martin said he had to give the una-
nimous judgment of the Court in this case, which
was an action of ejectment. A special case had
been stated for the opinion of the Court of Com-
mon Pleas' upon the construction of a clause in a
will made by John Micklethwait in 1822. The
facts of the case were these :—The great-grand-
father of the parties to this suit was John Mickle-
thwait, who will be designated as John of 1797 ; he
left three children—John (who will be designated
as John of 1822), Nathaniel (who will be called
Nathaniel No. 1), and Jonathan George. John of
1822 died without issue. Nathaniel No. 1 had two
children—Nathaniel No. 2 and Sotherton (after-
wards Sir Peckham Micklethwait). Nathaniel
No. 2 married, first, Lady Waldegrave, who died
in giving birth to a son, Colonel Micklethwait.
Nathaniel No. 2 married a second time a daughter
of Lord Rous, by whom he had two children,
Henry and John Nathaniel, and these two are
the parties to this suit, Henry being the plaintiff
and John Nathaniel the defendant in the court
below, but their names being reversed in the Court
of Error; John Nathaniel will, therefore, be plain-
tiff in this court, and Henry will be defendant.
The property in question was very considerable.
In 1782 John of 1797, on the marriage of his second
son, Nathaniel No. 1, settled certain estates, called
Hickling, Beeston, and Tunstal, in the county of
Norfolk, after a life estate to himself, to the use of
Nathaniel No. 1 for life, remainder to such son of
the marriage as Nathaniel No. 1 should appoint ;
in default appointment to the use of the first and
other sons of that marriage in tail male, with re-
mainder to the settler in fee. John of 1'97 made a
will in that year (1797) which did not affect the pro-
perty settled by him in 1782, but related to other
estates in different counties. By this will he devised
his estates to the use of his eldest son, John of
1822, remainder to the use of his first and other
sons successively in tail male, and in default to such
one of his two grandsons, Nathaniel No. 2 and
Sotherton, sons of his second son, Nathaniel No. 1,
as his son John of 1822 should appoint for life, re-
mainder to the first and other sons of such appointee
in tail mail. In default of such appointment by John
of 1822 the testator devised the estates to the eldest
of his two grandsons, Nathaniel No. 2, for life, with
remainder to his first and other sons, with remainder,
on failure of such issue, to his grandson Sotherton
for life, with remainder to his third son, Jonathan
George. On the 26th Feb., 1799, John of 1797
made a codicil to his will, revoking the devise so
far as regarded the estates in Surrey, Middlesex,
and London, and he devised them to his third son,
Jonathan George, in fee ; but this codicil was not
duly attested, and therefore was null and void. On
the death of John of 1797, John of 1822 entered into
possession of the estates comprised iu the will of
1797. Nathaniel No. 1 died in 1796, and Nathaniel
No. 2 succeeded to the estates named in the settle-
ment of 1782. In 1804, Nathaniel No. 2 being about
to marry, executed a settlement of the 18th of Janu-
ary, 1804, whereby, being a minor, he covenanted
to settle the estates of Hickling, Beeston, and Tun-
stal to the use of himself for life, and after provid-
ing by a term of years for a jointure for his wife, to
the use of himself in fee; and on the 28th of Janu-
ary, 1805, he suffered a recovery to bar the entail
in these estates. His wife died on the 14th of Fe-
bruary, 1805. In October, 1810, Nathaniel No. 2,
being about again to marry, made proposals for a
settlement whereby the Hickling estate was charged
with an annuity to his wife, and John of 1822 made
this proposal in pursuance of the power given him
by the will of 1787 to appoint all the estates
thereby devised to him to Nathaniel No. 2. In
pursuance of these proposals, John of 1822 exc.
cuted an appointment of the 29th of November,
1810, devised by the will of 1797, to Nathaniel
No. 2, according to the terms of the will of 1797,
and Nathaniel No. 2 executed a settlement.
The plaintiff and the defendant were the issue of
that marriage. Such was the state of the family
and of the estates in 1822. In 1822 John of 1822
made the will which gave rise to this litigation.
He had become possessed, through the family of his
mother (Miss Peckham), of real property, called the
Iridge estate, in the county of Sussex. He first
recited the will and ineffective codicil of his father,
John of 1797, and that it was his wish his father's
codicil should be confirmed, and then he proceeded
to devise the Iridge estate to trustees, first, to the
use of his nephew, Sir Peckham, for life, remainder
to the first and other sons of the body of Sir Peck-
ham successively in tail male •, secondly, in default
of such issue, to his brother, Jonathan George, for

remainder to his nephew John, eldest son of his

brother Jonathan George, for life, and to the first
and other sons of John in tail male. Then came
two shifting clauses—first, that if the testator's
nephew Nathaniel No. 2 and his first or other son
or sons, or his or their heirs, should in the lifetime
of Jonathan George effectually confirm and estab-
lish the codicil of 1799 by effectually conveying the
estates in Surrey, Middlesex, and London to Jona-
than George in fee, then the foregoing devise in
favour of Jonathan George and of his son John and
his first and other sons in tail male was to be void,
and immediately on such event, or in default of
issue of the testator's nephew John (the son of
Jonathan George), the estate was to pass to the
testator's great-nephew John Nathaniel (the plain.
tiff in error) for life, remainder to his first and other
sons in tail male, and in default of issue to Jonathan
George in fee. Then followed the shifting clause
upon which the present contest arose, and which
was in these words :
" And, as by possibility it may so happen that from and
after the second, third, fourth, or other younger son of my
said nephew Nathaniel (No. 2), or the heirs male of his or
their respective body or bodies, shall under the limitations
aforesaid have come into possession of my said hereditaments
and real estate, the eldest or elder son of my said nephew
Nathaniel (No. 2) or the heirs male of his body may
die and become extinct, so that the second or other younger
son of my said nephew Nathaniel (No. 2), or the heirs male
of the body of such second or other younger son,. may be-
come entitled to the property settled on the marriage of the
said Nathaniel (No. 2) in the character of then heir male of
the body ; now, in order to prevent the union of the twe
estates in the same person while there is in existence a
younger son or an heir male of the body of a younger son of
my said nephew Nathaniel (No. 2), I do by this my will
direct and declare that, in case the second or other younger_
son or the heirs male of the body of such younger son shall
by the death or failure of issue male of the eldest or other
elder son become entitled to the said settled property of my
said nephew Nathaniel (No. 2) as the heir male of his body-,
then the limitations in this my will in favour of such second
or other youngerpon so becoming entitled shall immediately
after such event cease and become void, and the next
younger son of my said nephew Nathaniel (No. 2) and the
younger male of his body shall, under the limitationsof thiste
my will, become entitled to my real estate aforesaid •
manner in every respect as if the next elder brothernincotrira,t,hche
issue male of his body had been dead or become extinct."
John of 1822 died in 1824, and Sir Peckham entered
into possession of the Iridge estate under that n,
and Nathaniel No. 2 took possession of the estateswi
devised by the will of 1797. In April,lB26, Nath
niel No. 2 and his eldest son, Col. Micklethwait,
and
conveyed the properta in Surrey, Middlesex,
London to Jonathan eorge, the third sonofJohn
of 1797, whereby the devise of the Iridge estate to
Jonathan George became void, and the devise of that
estate to Nathaniel No. 2 and his sons took effect.
Nathaniel No. 2 made a will in 1852, and devised
his Hickling and other estates to his eldest son by
the first marriage, Col. Micklethwait, for life, with
remainder to his sons in tail male, with remainder
to his second son, John Nathaniel (the plaintiff in
error), for life, and to his sons, with remainder
to his third son Henry (the defendant in error.)
Col. Micklethwait died in 1856 without issue. The
plaintiff in error, John Nathaniel, took possession
of the Hickling and Beeston estates and other pro-
perty devised by the will of 1797. Upon this state

of things the defendant in error contended that the
second shifting clause in the will of 1822 had taken
effect, inasmuch as by the death of the eldest son
of I\lithaniel No. 2 without issue the defendant in
error, the second sou, had succeeded as heir male of
the body of his father, within the meaning of the
language of the clause, to " the property settled on
the marriage of Nathaniel" No. 2 ; such property
being, as the defendant in error maintained, the
estates which passed by the will of 1797, and the
appointment of John of 1822 in 1810, made with a
view to, and as a settlement upon, the second
marriage of Nathaniel No. 2. The plaintiff in
error made three points- -first, that the properties
referred to in the second shifting clause as " set-
tled on the marriage of Nathaniel" were not the
estates comprised in the will of 1797 and dealt
with on the marriage in 1810, but were the Hick-
ling, Beeston, and Tunstal estates, dealt with
in the settlement made on the marriage of 1804,
and that, consequently, the contingency provided
for in the shifting clause of the second nephew suc-
ceeding in place of the first as " heir male of the
body" of his father had not happened, inasmuch as
the plaintiff in error had succeeded to these estates,
not as " heir of the body," but as devisee under the
will of his father; secondly, that, even assuming
that the estates referred to in the shifting clause
were the estates devised by the will of 1797, still
the contingency provided against had not happened,
inasmuch as the plaintiff in error had not succeeded
to these estates as " heir male of the body" of his
father, Nathaniel No. 2, because, taking as first
tenant-in-tail after the determination of the
estate for life, according to the limitations of
the will of 1797, he would take, not an estate
by inheritance, but an estate tail, as purchaser ;
and, thirdly, that even if this should be held other-
wise, still the contingency provided for by the
will had not been fulfilled m regard to the estates
succeeded to, seeing that the estates settled (ac-
cording to the construction of the defendant in
error) on the marriage of 1810 comprised the whole
of the estates devised by the will of 1797, while the
plaintiff in error had succeeded only to a part of
those estates, another part having been conveyed to
Jonathan George, conformably to the will of 1822,
as the price of the Iridge estate. In this manner
the case came for the judgment of the Court of Com-
mon Pleas, the question being whether the defen-
dant in error had become entitled to the property
settled on the marriage of Nathaniel No. 2, in the
character of " heir male of his body." The Judge
of that Court gave judgment to this effect :—They
were of opinion that the properties referred to as
" settled on the marriage of Nathaniel" No. 2, were
the estates dealt with on the second marriage in
1810. It was plain that the estates devised by the
will of 1797 were those referred to. In no sense
of the word could it be said that any estates were
" settled" on the marriage of 1804. Was the clause
intended to refer to the estates devised by the will
of 1797 ? Strictly speaking, those estates were not
settled on the marriage of 1810 ; they passed to
Nathaniel No. 2, for life, and his sons after him in
tail by virtue of the will of 1797 and the appoint-
ment of 1810. Nevertheless, the Court was satisfied I
that it was to these estates that the testator
intended to refer. As soon as that appointment
was made the practical effect was to pass these
estates to Nathaniel No. 2 for life and his sons in
tail male after him, in strict settlement ; and the
testator might well refer to these estates as having
been " settled on the marriage." As the union of
the two estates, the contingency against which the
testator was seeking to provide, would equally have
arisen on a devise of the estate as on its descending
by inheritance, it was reasonable to suppose that
had the testator been dealing with an estate in fee,
which was not unlikely to be devised by will, he
would have guarded against the case of the estate
coming to the possessor of the Iridge estate by will
as well as against its coming to him by inheritance.
The term " heir male of the body" was applicable
to the estates devised by the will of 1797, and to
them alone. They therefore held with the plaintiff
(the defendant in error), that the shifting clause
was intended to apply to the union of the estates
devised by the will of 1797 with the Iridge estates
devised by the will of 1822. The plaintiff in error
then said that if the property " settled on the mar-
riage of Nathaniel" was to be held to be the estates
devised by the will of 1797, the contingency guarded
against by the shifting clause had not arisen, inas-
much as the plaintiff .in error had not come into
possession of the estates devised by the will of 1797,
but only a part of such estates, the Middlesex, Sur-
rey, and London property having been made over
to Jonathan George. Two satisfactory answers
might be given. In the first place such a construc-
tion would require a double contingency in order
to give effect to the shifting clause. In the next
place such a construction appeared to the Court to
be inconsistent with thescheme of the will. It ap-
peared to the Court that the reasonable construc-
tion to be put on the whole of the provisions of the
will taken together was that the shifting clause in
question was intended to take effect on the comple-
tion of the arrangement contemplated by the testa-
tor as to the transfer of the Surrey, Middlesex, and
London property, in the event of the rest of the
estates becoming united with the Iridge estate by
failure of the issue of the elder nephew then in
the possession of the former, and that consequently
'the term " property settled on the marriage of
Nathaniel," although general and unqualified, must
be taken to mean that property short of that
portion of it which it was part of the scheme of the
will to have separated from it. The court, there-
fore, were of;opinion that the estates referred to in
the shifting clause were the estates which passed by
the will of 1797, and which came to the plaintiff in
error as part tenant in tail in remainder after the
determination of the-prior estate of his elder brother;
that the character in which the plaintiff in error
actually took the estates was intended to be described
by the term " heir male of the body" of his father,
and that consequently the contingency provided for
by the shifting clause had happened. The Court,
therefore, gave judgment for the plaintiff (the de-
fendant in error).
Upon this judgment the present plaintiff brought
a writ of error to this Court. The case was argued
last Hilary Term when the Court took time to con-
sider its judgment.
The Court was now of opinion that the decision
of the Court of Common Pleas was right, and that
that judgment should be affirmed. The reasons had
been so fully stated in that judgment that it became
unnecessary to restate them, as this Court consi-
dered that the construction put upon the shifting
clause by the Court of Common Pleas was the cor-
rect one. The judgment must, therefore, be affirmed.
Mr. Honeyman presumed it was unnecessary for
him to ask for costs.
Mr. Baron Martin affirmed with costs.