1846.

WESTWOOD

v.

SLATER.

were applicable for the benefit of Mrs. Stephens and her children, and two twenty-fourths were applicable for the benefit of Mrs. Westwood and her children. That, on the death of Mrs. Westwood, two twenty-fourths were applicable for the benefit of Mrs. Stephens and her children, and, as to two twenty-fourths, doubts were entertained whether they were not undisposed of and resulted to Samuel Wells; or whether one of them did not pass by the will of Charlotte Fraser, and the other result to Samuel Wells. That of the two twenty-fourths of Mrs. Fraser, which had devolved to Mrs. Westwood, one of them was disposed of by her will, and the other resulted to Samuel Wells. That the shares which resulted to Samuel Wells passed to his daughters and their representatives under his will. That, in the events which had happened, the plaintiffs, as the representatives of Thomas Westwood, claimed to be entitled to four twenty-fourths of the original fund, and one twenty-fourth in respect of the two twentyfourths which accrued to Mrs. Westwood on the death of Mrs. Fraser; in other words, to six and a quarter thirtieths.

The defendant, Mrs. Stephens, by her answer, submitted that the two twenty-fourths and one twenty-fourth, or such other shares as were mentioned in the bill in that behalf, resulted to Samuel Wells as in the bill stated, but that they were limited by the indenture of the 14th of December, 1804, to the next of kin of Samuel Wells; and that she and her sisters were such next of kin, and that they took such part of the trust funds as so resulted, in joint tenancy; and as there was no severance, the defendant, Mrs. Stephens, became entitled by survivorship to the whole of such part or parts.

The cause now came on for hearing.

Mr. Russell and Mr. H. Humfreys, for the plaintiffs.

Mr. Wigram, for the representatives of the surviving

trustee.

Mr. Teed, Mr. Chandless, Mr. Abraham, and Mr. Mackeson, for other defendants.

Mr. Malins, for the defendant Mrs. Stephens, and others. -The primary object of the settlor was to provide for his daughters and their families. If any two of his daughters should die without children, his meaning was, that what was not appointed to their husbands should go to that daughter who had children. That intention will be frustrated, if it be held that, in the events which have happened, the limitation in the settlement to the "next of kin" of Samuel Wells fails. The settlement, it is true, directs the trustees, in case there shall be no issue of the daughters who shall live to gain a vested or transmissible interest in the fund, to transfer the "whole of the said twelve fifteenth parts" to the next of kin. But it does not follow that this clause is to have no operation unless the whole fund goes over: it operates upon such portions of the fund as may from time to time fall in. In cases where estates in common, in tail, have been created by settlement, and some of the shares have fallen in, and the Court has refused to imply cross remainders, each share, as it has fallen in, has been considered to go over under the ultimate limitation in fee: Doe d. Tanner v. Dorvell (a). If it be urged that, in the case cited, the ultimate limitation was merely of the old reversion, that objection is answered by the case of Doe d. Foquett v. Worsley (b), where the ultimate limitation to the "right heirs of Lancelot Colman," was a remainder; the heirs taking by purchase. He also cited Edwards v. Alliston (c), Turner v. Frederick (d), Swaine v. Burton (e), and,

1846.

WESTWOOD

v.

SLATER.

1846.

WESTWOOD

v. SLATER.

as to the description of persons meant by "next of kin," Elmsley v. Young (a).

The VICE-CHANCELLOR.-This is a dispute not between two claimants under a settlement, but between the settlor himself and a person who alleges that something has been given to that person by the settlement, which allegation those who represent the estate of the settlor deny. Without questioning either of the cases mentioned by Mr. Malins, I am of opinion that this particular instrument exhibits an intention that the next of kin of the settlor should not take anything if there should be any child of either daughter who should live to gain a vested interest in the fund in question, or any part of it. Now, at least, one child of one daughter has lived to gain a vested interest in the fund in question, or some part of it.

DECLARE, that, upon the true construction of the indenture of settlement of the 14th of December, 1804, as to twelve fifteenths or twenty-four thirtieths of the capital trust monies therein comprised, Ann Westwood had power to appoint and did well appoint six and a quarter of the said twenty-four thirtieth parts of the said capital trust monies to Thomas Westwood; and that the plaintiffs, as his personal representatives, are entitled to the same as part of his personal estate. Declare, that Charlotte Fraser had power to appoint and did well appoint six and a quarter of the said twenty-four thirtieth parts of the said capital trust monies to Henry Fraser * *And declare, that, in the events that have happened, two and a half thirtieth parts of the said capital trust monies, upon the decease of Ann Westwood, remained undisposed of by the said indenture of settlement of the 14th of December, 1804, and reverted to the estate of the said Samuel Wells. And the defendants [the executors of S. W.], by their counsel, admitting that all the debts, and funeral and testamentary expenses, of the said S. W., and the legacies given by his will, have been paid, declare, that the said [three daughters], as residuary legatees in his said will, became entitled to the said two and a half thirtieth parts of the said capital trust funds so undisposed of by the said indenture of settlement of the 14th of December, 1804, as aforesaid, equally as tenants

in common.

(a) 2 M. & K. 780.

1846.

GEARY V. NORTON.

Nov. 23rd.

THE plaintiffs, Geary & Co., of Norwich, were patentees Upon the inof a certain shawl, called the Royal Mecklenburgh Shawl. The defendants, Norton and Hanneford, were manufacturers at Huddersfield.

In April, 1845, Norton called upon Scott, a shawl manufacturer at Leicester, when Scott shewed him a woollen shawl which he said one of his workmen had purchased. Norton asked to take it away with him for a few days, which was permitted. It was returned soon afterwards by Norton, with a written order to Scott to make several others according to the pattern. Norton afterwards called again, when, in a conversation with Scott, he stated he had heard the shawl was registered, but he did not believe it. Scott stated that it was registered. Norton said, that, be that as it might, he had an order for one hundred, and they must be made. They were made and sent to Everington, Ellis, & Co., who paid for them.

vasion of a patent right, the party complaining has a right to the protection of

an injunction, although the other party may promise to

commit no fur

ther infringement, and may

offer to pay the costs

paring the bill: and if the de

fendant do not,

after injunction

obtained, offer to pay the costs

of it, the plaintiff may bring the suit to a hearing, and will be entitled

to the costs of the suit.

Quære, whether in such a

case the Court count of da

will give an ac

In the interval between Norton's visits to Scott, he called upon Ellis, Everington, & Co., and shewed to Burrell, their principal assistant, a pattern of a shawl. Burrell said, "This is a copy of a shawl which I have, which is registered." mages. Norton said, "I don't care if it is registered." Burrell said, "It is Norwich made; we have it from a Norwich house." Norton then offered to sell it at two-thirds less than the Norwich price; whereupon Burrell on behalf of Everington, Ellis, & Co., gave him an order for one hundred. Accordingly, on the 5th May, Everington, Ellis, & Co., received the invoice and goods.

On the 15th May, the plaintiffs' solicitors, Reed & Co., gave notice to Hanneford of their clients' intention to apply for an injunction to restrain the sale of the shawls. Hanneford immediately attended at the office of the plaintiffs' solicitors, when it was stated to him that instructions had

been given for a bill, and affidavits had been prepared, and that the costs incurred would be about £15 or £20. Hanneford without hesitation agreed not to sell any of the shawls, and to pay the costs. The parties then separated, but met again by arrangement, when the sum of £20 was named as the amount of the costs. The plaintiffs' solicitors, however, required an additional undertaking on the part of Hanneford not to make any shawls of the Mecklenburgh pattern, or of any pattern approaching thereto, under a certain penalty. To the latter proposition Hanneford refused to assent, and the matter remained unsettled.

On the following day, the defendants' solicitors sent the following letter to the plaintiffs' solicitors:

"46, Ely-place, May 16th, 1845. "Gentlemen,-Your letter to Mr. Hanneford of the 15th May, containing copies of your letter of the 10th to Everington, Ellis, & Co., and Messrs. Norton and Hanneford, Mr. Hanneford has handed to us. Until the receipt of your letter, Mr. Hanneford had not any suspicion that any shawls sold by Norton and Hanneford were a piracy, nor does he now know it. But, in compliance with your letter he will immediately suspend the sale of any shawl of which he and Norton are the owners or holders, and which are or resemble the Royal Mecklenburgh shawl. Messrs. Norton and Hanneford are not the manufacturers of any shawls. We are, &c.

"BOWER & SON."

The plaintiffs took no notice of this letter, but filed their bill, and obtained an injunction against the defendants, upon the affidavits of Scott and Burrell, stating the foregoing facts as to the order and sale of the shawls to Everington & Co.

The prayer of the bill was, that the defendants may at the hearing, and in the meantime, be restrained from applying the aforesaid design, or any fraudulent colourable imitation thereof, for the purpose of sale, to the ornament of any