1864. CHAPMAN v. CHAPMAN. May 30. In a bequest "to brothers THE testator desired that, in case his daughter Frances Chapman should marry, the sum of 1,4007. should their represen- be settled on her for her separate use for life, and then tatives in equal and sisters, or tatives meant shares:" Held, on her husband for life, and the principal to go to her that represen- children; "but if there should be no children, then to all her brothers and sisters, or their representatives, in equal shares." executors or administrators, and not the next of kin. She married, survived her husband, and died in 1861 without having had issue. Some of the brothers being dead, the question was as to the meaning of the word "representatives." Mr. Bedwell contended, that "representatives" meant "next of kin." He cited Re Porter's Trust (a), and see Re Henderson (b); In re Crawford's Trusts (c); King v. Cleaveland (d). Mr. I. J. Hamilton Humphreys was not called on. The MASTER of the ROLLS. I think it must mean either executors or administrators. The primâ facie meaning of the word representative, so far as relates to real estate, is the heir, and, so far as it refers to personal estate, is the executors, if (a) 4 Kay & J. 188. any (d) 26 Beav. 26, and 4 De G. & J. 477. any have been appointed, or if not, the administrators. The burthen of proof lies on anybody contending the contrary. Here I see nothing to shew that the testator intended anything different from the ordinary and usual meaning of the word. I am of opinion that the testator intended, that on the death of his daughter without having had children, her brothers and sisters should take; but if any of them should be then dead, then that their shares should go as part of their estate. 1864. CHAPMAN v. CHAPMAN. TH COGENT v. GIBSON. May 30. HE Plaintiff Cogent was entitled to a French patent A contract for for improvements in the manufacture of saddles. the sale of a patent speciIn 1863 the Defendant agreed to purchase from the fically enPlaintiff the patent right to manufacture and sell these saddles in England for 125l., and Cogent was, at the expense of the Defendant, to obtain the English patent. The patent was obtained, and this was a bill by the vendor against the purchaser for the specific performance of the agreement. Mr. Selwyn and Mr. C. H. Blake for the Plaintiff. Mr. T. H. Terrell, for the Defendant, argued that this was not a proper case for the interference of this Court, for all the Plaintiff required was the purchasemoney, which he might obtain by action at law. He argued, secondly, that the patent right was of no value. forced at the suit of the vendor, although all he required was the payment of the purchasemoney. The 1864. COGENT V. GIBSON. The MASTER of the ROLLS. I think the Plaintiff is entitled to a decree for specific performance. I am of opinion, that in all these cases the rights of the vendor and purchaser are mutual and correlative. I had to consider the point lately, in a case where the Plaintiff, the vendor of land at Harrogate, had nothing to do but to receive a sum of money, and I held that he could come to this Court for specific performance. It is true that the vendor may bring an action to recover the damages, but he is also entitled to come here for a specific performance. I am of opinion, that where there is a valid contract for the sale of a patent, this Court will specifically enforce it in a suit by the purchaser against the vendor, and will make the latter execute a conveyance. I am also of opinion that the opposite is equally true, and that the vendor may come into equity for the purchasemoney. The Plaintiff is entitled to the usual decree for specific performance. 1864. ΑΝ Re JEWITT. June 8. while on his N attachment had issued out of this Court against A solicitor, Mr. Jewitt, for non-delivery of his bill of costs within the time limited by a taxation order. He was arrested on his way to attend a summons for his client at the Judges' Chambers, Serjeants' Inn. Mr. W. H. Terrell now moved for his discharge. He argued that a solicitor was not only privileged whilst in attendance upon the Court, but in going and returning; In the Matter of O'Neill (a); Fitzmaurice's Case (b); and that the principle extended to the present case, for in Moore v. Booth (c) Lord Loughborough said, "I am told it is understood at Serjeants' Inn, that parties attending at the Judges' Chambers are always protected." Mr. Wickens, contrà, submitted that there was no authority for saying that the privilege extended to such a case as the present, except a mere dictum in Moore v. Booth. way to attend a summons at Judges' Chambers, is privileged from arrest. The MASTER of the ROLLS. On the authority of that case, I must discharge Mr. Jewitt. He will be liable to be arrested again, unless he makes some arrangement or complies with the order. I shall simply discharge him. 1864. Apr. 7. May 4, 5. The Defend ant, a mortgagee, agreed to grant a lease to the Plaintiff, but upon the mutual understanding that the mortgagor was to concur. The mort gagor having refused his IN FRANKLINSKI v. BALL. N 1828, Mr. Slattery mortgaged two leasehold houses to the Defendant Sir William K. Ball. The mortgage deed contained a power of sale, but no power to lease. In 1863, the Defendant agreed to let one of the houses to the Plaintiff for the remainder of the term. The Court, upon the evidence, came to the conclusion, that the Plaintiff knew that the property was under mortgage, and that it was on both sides considered, that the agreement was for a lease to be approved of and not entitled to concurred in by the mortgagor, and that it proceeded on the mutual understanding that the mortgagor was to concur therein. concurrence: Held, that the Plaintiff was insist on hav ing a lease from the mort gagee alone; and secondly, that he was not entitled to damages in equity. The mortgagor, however, refused to concur in the lease, and the Plaintiff afterwards filed this bill for the specific performance of the contract, or, in the alternative, that the Defendant might pay damages. Mr. Hobhouse and Mr. G. Hastings for the Plaintiff. If the mortgagor will not concur in the lease, the Plaintiff is willing to take such title as the Defendant can give, and to accept a lease from the mortgagee alone. The Defendant is bound, to the extent of his interest, to give effect to his contract; but if not, then the Court ought to assess the damages under Sir Hugh Cairns' Act (21 & 22 Vict. c. 27), and direct the Defendaut to pay the amount; Howe v. Hunt (a); in which (a) 31 Beav. 420. |