vided by the deed; that in September 1847 Swinborne agreed to assign to Franks and Millard, and they agreed to purchase, his interest in the patent process under the deed of licence, and also his stock in trade upon the terms and subject to the covenants and agreements contained in the deed of licence; that by virtue of that agreement, Franks, Baker, Millard, and Lawrance had made arrangements to carry on the business on the same premises, and had carried it on accordingly, and that they continued to sell coffee in packets with labels similar to the labels formerly used by Swinborne, with the exception that the firm of "Baker & Co." was substituted for the name of Swinborne; that instead of selling only pure and unadulterated coffee as they were bound to do, they were adulterating it with chicory, molasses, and other articles, and the value of the patent was thereby much depreciated and that in other particulars they were acting in violation of the covenants contained in the deed of the 21st of November 1846, and to the prejudice of the plaintiff.

The bill prayed for an account of the quantity of coffee manufactured and sold by the four other defendants under their agreement with Swinborne, and as assignees of the deed of licence; and a declaration that they were liable to account to the plaintiff for the royalty due thereon, and for an injunction to restrain them from manufacturing or selling any article under any name, purporting to be coffee packed according to the plaintiff's invention, or otherwise than in conformity with the covenants in the deed of licence, and from manufacturing or selling under the deed any adulterated article under any title purporting to denote coffee manufactured and packed according to the plaintiff's invention.

On the 6th of March 1848 the plaintiff moved for an injunction according to the prayer of the bill; and, at the defendants' request, the motion stood over upon their undertaking not to do any of the acts sought to be restrained.

On the 13th of March the plaintiff filed a supplemental bill, alleging, that since the original bill was filed, the defendants alleged that the article sold by them was manufactured and packed by them inde

pendently of and without regard to the letter of licence, and that they had erased the names of the plaintiff and Swinborne from the labels, and substituted a different label, which was a colourable imitation of the one formerly used, but entirely omitting all reference to the plaintiff's patent, and that they intended to continue to manufacture and to sell this article entirely without reference to the deed of November 1846, or to any of the plaintiff's rights, and that the coffee so sold was composed of the same ingredients and adulterated in the same way as the coffee formerly sold with the old labels.

The bill prayed for an injunction to restrain the defendants from manufacturing or selling, except under the letter of licence, any coffee by the name formerly used, or any similar name, and which should consist of unadulterated coffee; and also from manufacturing or selling under any name any article manufactured in the same manner as the articles sold by them at the filing of the bill under the name formerly used, and also from manufacturing or selling any article in imitation or infringement of the plaintiff's invention.

The defendants, by their answer and affidavits, denied that the plaintiff's patent was of any value, and alleged that they had for some time ceased to use the plaintiff's invention, except when required to do so by any of the sub-licensees; that most of their coffee was packed in the mode which was generally adopted before the patent, and that they had never used labels without the plaintiff's name upon them for any packets which were made up according to his invention. But that the invention could not be carried on to any advantage, and that they manufactured and packed coffee in the ordinary way without using the plaintiff's invention, which they contended they were entitled to do, and that they had made no alteration in their labels since the filing of the supplemental bill.

On the 7th of April 1848 the motion in the original suit, and also a motion to commit the defendants for a violation of their undertaking, and a third motion for an injunction, according to the terms of the prayer of the supplemental bill, came on to be heard before the Vice Chancellor Knight Bruce, who ordered the motions to

stand over without prejudice, with liberty to the plaintiff to bring such action at law as he might be advised against the defendants, or any one or more of them.

The plaintiff now renewed his motion for an injunction before the Lord Chancellor, by way of appeal, or that the order of the Vice Chancellor might be varied by the insertion of an admission by the defendants, that a deed had been executed by them containing similar covenants to those in the deed of November 1846, and also an admission of the validity of the patent.

Mr. Cooper and Mr. Daniel, for the plaintiff. An action at law might satisfactorily try the rights of the plaintiff as between himself and a stranger. He would be obliged to support his patent in the usual manner. But no form of action at law would enable the plaintiff to try his right against the defendants, as equitable licensees of the patent. They have availed themselves of the patent and have accepted a licence under it; and they are estopped thereby from disputing the validity of the patent

Baird v. Neilson, 8 Cl. & Fin. 726. Bowman v. Taylor, 2 Ad. & E. 278; s. c. 4 Law J. Rep. (N.S.) K.B. 58. The defendants have violated the covenants in the deed of November 1846. Now, no form of action will enable the plaintiff to raise the question, whether the defendants as equitable licensees are liable for that violation.

[The LORD CHANCELLOR.-If they are invading your right, you want no assistance from the Court; the defendants cannot be deprived of the right of disputing your patent, because they have purchased a

licence. If, as they say, they have discontinued the use of the licence, what reason is there to restrain them from disputing the licence as any other strangers might?]

The right to the injunction must depend, not on what the defendants now say, but on the relative position of the parties at the time of the bill filed. It would be like a party who has committed waste, coming into court and saying, "I have committed waste, but I do not intend to commit any more waste." The injunction would nevertheless lie. The defendants did claim under the licence when the original bill was filed. Some form of admission by the defendants is essential to enable the real question to be tried at law.

-The defen

The LORD CHANCELLOR. dants are asked by this motion to admit the very thing which they dispute. They say they are not bound by anything which they have done; and they repudiate the licence, and yet you call upon them to admit that they have a legal assignment; that would preclude them from raising one point on which they ground their defence. If you have any such question as that the defendants, as equitable assignees, are liable upon the covenants of the deed of November 1846, the hearing is the time to try it. The present question is, whether the plaintiff is entitled to an injunction. If he has a case at law he must go to law. I cannot make a party give up his equity to enable you to try the case at law. The motion must be refused, with costs.

Mr. Russell and Mr. Prior appeared for the defendants.

NEW SERIES, XVIII-CHANC

2 Q

Costs, Security for-Jurisdiction, Residence out of Ambiguous Explanation.

After the defendant had put in his answer, the plaintiff let his house, and went to reside at Boulogne, but had since occasionally been within the jurisdiction. He denied all intention to reside abroad, but said it was pleasant to remain where he was then staying; he also denied leaving England to avoid the jurisdiction :-Held, that the plaintiff's explanation was ambiguous, and that he must give security for costs.

This was a motion that the plaintiff might give security for costs, and that in the mean time the proceedings in the cause might be stayed. At the time of filing At the time of filing the bill the plaintiff was residing at Teignmouth. After the answer was put in he let his house for two years, and went to reside at Boulogne, but was without any residence in this country.

Mr. Kinglake.-The plaintiff was out of the jurisdiction of the Court, and, as far as could be collected, there was no apparent intention of returning. It was impossible to contend that he had gone abroad for a temporary purpose and upon ordinary business; he had no residence whatever in this country.

Mr. Goodeve, on behalf of the plaintiff. -It was stated distinctly that the plaintiff

had not gone abroad to reside permanently; on the contrary, he was in the habit of travelling backwards and forwards, and had been several times in England since he let his house. The affidavit in opposition to this application was made by him while in England; it denied that he intended to reside abroad, or that he left England to avoid the jurisdiction; he remained there because it was a pleasant place to stop at. Before a defendant was entitled to security for costs the withdrawal of the plaintiff must be permanent; he must have acquired a new domicile.

Weeks v. Cole, 14 Ves. 518.
Lonergan v. Rokeby, 2 Dick. 799.

The MASTER OF THE ROLLS.-The plaintiff had withdrawn himself from the jurisdiction, within which he had a house and residence at the time the bill was filed. He was there described as of a particular place, and the defendant had a right to suppose he would be found there when required for any of the purposes of this suit. The filing a bill did not impose upon a plaintiff the necessity of living at one place; neither did it require him to stay in England, if in the ordinary course of business it was necessary for him to travel about. In this case a temporary residence at Boulogne did not mean a visit; the plaintiff had his residence there. he been domiciled, the case would have been strengthened, but at present the an

Had

A testator made a general devise of all his property to A, upon trust, for purposes or legacies he should make in any codicil he might add to his will; and afterwards made a codicil, which was unattested :- Held, that A. was not entitled in his own right to the property, but was a trustee for the heirat-law of the testator.

Richard Harris, being entitled to a part of a share in the New River Company, made his will, dated the 17th of October 1822, which was duly executed and attested so as to pass real estate, and was as follows:-"I, Richard Harris, of &c., do make this my last will and testament; first, then, I leave to John Hester, now residing with me, all my property, freehold, leasehold, or of any other description whatsoever, in trust, for purposes or legacies I shall make in any codicil I may add to this my last will, and hereby revoke and make void any former will made by me."

The testator made a codicil to his will, dated the 29th of November 1823, which was unattested, and thereby gave several legacies to different persons.

The testator died soon after the date of the codicil, and the will and codicil were proved by John Hester. John Hester died in 1839, leaving the plaintiff his heir-atlaw.

The testator had been illegitimate, and therefore did not leave any heir-at-law.

The bill was filed by the plaintiff, as heir-at-law of Hester, against the New River Company and the Attorney General,

for the purpose of establishing his right to the part of the share in the company to which Richard Harris had been entitled.

Mr. Swanston and Mr. Faber, for the plaintiff.-First, under the will there is an absolute gift of the share to Mr. Hester. Secondly, New River shares are real estate.

[KNIGHT BRUCE, V.C. said that he would, for the present, assume that New River shares were real estate, subject to whatever might be said on that point on the part of the Crown.]

Thirdly, even assuming that there is no gift, under the will, of the share to the plaintiff for his own benefit, and that the testator died intestate as to it, the plaintiff is still entitled to it. New River shares are to be taken as real estate. Here, then, there is real estate vested in a trustee by way of resulting trust for a testator who has died without an heir. The Crown in such a case has no right to the property. This is settled by the cases of Burgess v. Wheate (1) and Taylor v. Haygarth (2).

Mr. Wray, for the Attorney General.First, there is no gift in this will of the share to the plaintiff for his own benefit.

[KNIGHT BRUCE, V.C. said that he thought that, if the testator had died leaving an heir, such heir would have been entitled.]

Secondly, the case is not covered by Burgess v. Wheate, which is not disputed. The decision in Burgess v. Wheate relates to what is strictly and properly real estate-that is, lands, tenements, and hereditaments, and to no other propertyTaylor v. Haygarth. The property belonging to the New River Company consists, in a great measure, of machinery and chattels. The New River shares are not, strictly and properly, real estate; they may be said rather to what is called

savour of the realty," than to be realty itself. For some purposes they may be real estate, but not for all. They are like gas shares and dock shares, which have lately been held not to be within the meaning of the Mortmain Act (3). The tech

Redeemed Land-Tax-Merger.

The guardians of A, an infant, who was tenant in tail in possession of an estate, contracted for the redemption of the land-tax, under the powers of the 38 Geo. 3. c. 60, and made all the transfers of stock, agreed to be made, before 1804. In 1804, A. attained his majority, and suffered a recovery. In 1805, A, by indentures of lease and release, executed in consideration of his then intended marriage, conveyed the estate with its rights, members and appurtenances, &c. (using the usual general words) to certain uses, and entered into the usual covenants for title. The land-tax was not noticed in these deeds. After the execution of these deeds, and during A's life, the said charge in lieu of land-tax was kept separate from the rents of the estate-Held, that this charge did not pass by the settlement, and that it had not been merged in the estate during A's life.

In 1797, Sir William Stanley Massey Stanley, then an infant, about seventeen years old, succeeded, as tenant in tail in possession, to certain estates at Puddington; and duly appointed Mr. Salvin and Mr. Webb to be his guardians. In March 1799, Mr. Salvin and Mr. Webb as such guardians, entered into a contract for the redemption of the land-tax on the Puddington estates, with the Commissioners for the redemption of the land-tax, under the powers of the 38 Geo. 3. c. 60, the

consideration agreed upon being the transfer of 8,9171. 3 per cent. consols, payable by instalments in about three years.

Sir William S. M. Stanley died an infant in June 1800; having by his will bequeathed all the benefit to which he was entitled in such redeemed land-tax to his next brother Sir Thomas Stanley Massey Stanley. Sir Thomas S. M. Stanley, then an infant, succeeded as tenant in tail in possession to the Puddington estates, and appointed Mr. Salvin and Mr. Webb to be his guardians; who having paid the instalments which had become due during the life of Sir William S. M. Stanley out of the rents of the estates, continued such payments after his death and paid the last instalment in November 1802.

In January 1804, Sir Thomas S. M. Stanley attained the age of twenty-one, and in August 1804, suffered a recovery of the Puddington estates.

66

By indentures of lease and release dated the 11th and 12th of January, 1805, being the settlement made in contemplation of the marriage between Sir Thomas S. M. Stanley and Miss Haggeston, Sir Thomas S. M. Stanley duly conveyed a part of the Puddington estates to the use of himself for life, with remainder to the use of his first and other sons in tail, with other remainders over. In these deeds, after a description of the property conveyed, the following usual general words were used: - " together with their rights, members, and appurtenances and thereversion and reversions, remainder and remainders, yearly and other rents, issues, and profits thereof, and all the estate, right, title, interest, use, trust, property, claim, and demand whatsoever, both at law and in equity, of him the said Sir Thomas S. M. Stanley of, in, and to the same." In the indenture of release were contained the usual covenants for title on the part of Sir Thomas S. M. Stanley; who (among other things) covenanted that the estates were "free and clear from all and all manner of fines and other gifts, grants, sales, mortgages, judgments, estates, titles, charges, and incumbrances whatsoever" (except certain leases therein particularly mentioned). These indentures did not in any manner refer to the redeemed land-tax.