85 1786. CARNAN against BOWLES. [Vide S. C. certainly injured by the publication of the letter-press; as to which he must have an injunction. (3) ་་ (3) See R. L. accordingly. The matter coming before Lord Thurlow, upon a motion to dissolve the injunction, Mr. Cox states his Lordship to have observed, "that "as the roads of Great Britain were open to the inspection and observation of all mankind, every one was at liberty to publish the result of such observation: the subject"matters of these books were therefore in medio: but the question will be, whether the "author has exhibited any new and distinct idea in the exposition of them; and then, whether the subsequent editor has, in substance, adopted the same. When globes "were first invented, this was a new scheme of exhibiting the face of the earth, different "in substance from the plain chart. Now, then, the addition of a few places on the globe will not make a new invention, the substratum being the same. So in the case "of Newton's Milton, the Court thought that Milton's works were in medio, but the "notes and other additions were not so; and therefore, as to them, restrained the publication, though they left the text open to any body. Now, here, if the scheme of exhibiting this information to the public is substantially and fundamentally the same in the second work as in the first, and the former is merely reprinted, with such dif"ferences as not to amount fundamentally to a different project of exhibition, the law "ought to interfere and protect the exhibition. His Lordship thought the report not "sufficiently clear, and directed that it should be again referred to the Master, whether "the books were the same, or whether the latter differed from the former so as to "render the same a new and original work in any and what particulars." 46 It is said, that Lord Thurlow afterwards dissolved the injunction generally; thinking the second work, though containing the same matter, original in itself. See 5 Ves. 25. Cary v. Faden, 5 Ves. 24. was determined under a similar impression; but such doctrine appears very questionable, and has been over-ruled by later very sound determinations. Lord Eldon C. has often granted and maintained injunctions against parties publishing, in any work common to each party, any matter which has been the composition of another; as in the instance of Trusler's Chronology, the case of a work, called "Time's Telescope," &c. In a case of doubt, the Court has of late directed the plaintiff to bring an action, and maintained the injunction in the meanwhile. See King v. Reed, 8 Ves. 223. note. In a plain case of piracy, Pinnock v. Rose, Lincoln's Inn, 10 July, 1819, Sir J. Leach, Vice Ch., directed the injunction to "restrain the publication of any works or work in which the matter of the plaintiff's publication, or any part thereof, was verbally or "substantially introduced." Master of the Rolls for Lord Chancellor. Residue of 3 STEBBING against WALKEY. (Reg. Lib. 1785. B. fol. 503. b.) per cent. annui- MARY STEBBING gave to the two daughters of Mr. Titus Stebbing ties given to the of T. S. He had three daughters 10. each; and appointed her mother in law, Margaret Harriet two daughters Stebbing, executrix. The said Margaret Harriet Stebbing, by her will,] gave 827. 3 per cent. annuities, the residue of 1821. annuities, in trust, to pay the same unto and between the two daughters of [the said] Titus Stebbing, in equal shares and proportions, during (1) their lives, and, if either of them should die (2), then to pay the whole to the survivor of them; and, in case both should depart this life (3), then the whole was to fall into the residue, and she appointed Walkey and Ritson residuary legatees, [and joint executors of her will]. [when the will was made]: they shall all take equal shares. (4) Titus Stebbing had three daughters, the plaintiffs. Mr. Scott, for the plaintiffs.- This will can admit but of two constructions, either the two eldest daughters of Titus Stebbing must take, or the word two must be rejected, and all the daughters must take. (1) "So much of the term to come therein as they should live," &c. Reg. Lib. and 1 Cox, 251. (2) "Before the expiration of the said term." Ibid. (3)" Before that time." Ibid. (4) See 1 Roper on Legacies, 114. and the cases above referred to. Sleech Sleech v. [*] Thorington, 2 Ves. 560. is a bequest to the two servants who should live with the testatrix at the time of her decease; at the testatrix's death, she had three servants, and they all were decreed to take equal shares. In that case, [pp. 564, 565.] Tomkins v. Tomkins (5), in 1745, was cited, where the testator gave to the three children of his sister 50l. each; the sister had four children, and they were all let in. In Scott v. Fenhoulet, in 1779, (as to this point, not reported,) (6) there was a legacy given to Captain Compton, and each of his two daughters, if each or either of them should survive Lady Chadwick. Captain Compton had more than two daughters, and it was held, that all the daughters should take. Mr. Price and Mr. Emlyn, for the residuary legatees.-One great line of distinction between this case and that in Vesey, is, that in that case no particular servants were in view; in this, there is a particular identification of the two daughters, and, if either of them shall die, to the survivor; if both shall die, then to the residuary legatee. In that case, the decision was ut res magis valeat quam pereat; here there is a direction that it shall fall into the residue. The case of Scott v. Fenhoulet is different from this; it was to Captain Compton, and each of his daughters: the mistake was only in point of number, but in this case, three were not intended to take the annuity, it was intended that only two should take it. It must be determined by reference to the Master, which are the two. If three take, it will postpone the residuary gift for another life, and contradict all the terms of the legacy. Master of the Rolls.- In construing wills, courts ought not to indulge conjecture; it were much better that many wills should be defeated. In this case, I am not prepared to control the cases which have been determined. When rules are laid down, they ought to be such as meet the common sense of mankind. I acknowledge, on the present subject, I yield to the authority of the cases, and not to the reason of them; but on the authority of the cases, I must declare that all the daughters shall take. (7) - (5) Tomkins v. Tomkins is also cited, 5 Atk. 257. The Editor has a MS. report of it; the judgment in which (so far as relates to the present point) is as follows: Lord "Chancellor. As it hath been agreed that the legacy should extend to the four children, "it is not necessary to give any opinion upon it; but 1 should have thought it a favour"able case for all the children, if the testator had expressed it to all her three children, "and would certainly have taken in all the children; and the addition of the word three "must have been rejected as repugnant. In the present case, it is not said all, but her "children are definite words, and to be construed universally. And, if it was not to "extend to all, the legacy would be void for want of knowing which of the three should be "entitled." (6) The point in Scott v. Fenhoulet came on to be reheard in 1784; and is now reported 1 Cox, 79. The bequest was to the same effect with the above; and determined accordingly. (7) After a declaration that all the three daughters were entitled to legacies of 101. " each under the will of Mary Stebbing, the Court declared, that under the will of the "[second] testatrix, Margaret Harriet Stebbing, the 821. per annum short annuities, "therein mentioned, ought to be divided into three equal parts between the said three daughters of the said Titus Stebbing; with benefit of survivorship amongst them." Reg. Lib. 46 1786. STEBBING against WALKER [*86 ] a debt due from his brother John, on bond of 3001. [and upwards,] to three.. The debt was due as executor, 2001. by bond, 100%. by covenant, and 501. on account of a legacy, [remaining due from him. Held, that the whole amount of the sums thus due, viz. 350l. should be] divided among the three. The bank being made parties, to discover what sum the executrix had transferred into her own name, [88] WILLIAM WILLIAMS made his will, in which was the following clause: "Whereas my brother John stands indebted to me, by bond, in the sum of 300l. and upwards, now I dispose of the same as follows: one-third thereof to the said John, one third to Nicholas, and one-third to Thomas;" [and gave the residue of his lands, and his personal estate to his wife, whom he appointed sole executrix]. Nicholas and Thomas were the other brothers of the testator. The debt due from John was as executor of another Nicholas Williams, who was indebted to the testator in 2001. by bond, 100l. by covenant, and had bequeathed the testator a legacy of 50%. [which was unpaid, and remained owing to him by John.] The bill was filed against the executrix, claiming, on behalf of Nicholas and Thomas, third parts of the whole of John's debt. Mr. Mansfield (for the plaintiff) insisted the brothers were so entitled, and that the testator intended such division, and merely mistook the security upon which Nicholas was indebted. Mr. Scott (for the defendant) contended, that only the 2007. secured by bond was to pass to the brothers; and the testator's mistake was a mistake of the quantity secured by bond, he meaning only to give the sum so secured. Master of the Rolls.-I have no difficulty in declaring what the testator intended to give, though the expression does not describe the situation of the money. Mr. Scott thinks only the money secured by bond will pass; I think the testator thought of the quantity of the property. He had three relations, and he meant to give them the 3007. which were due to him from John; he therefore meant to include all John's debt. There was a matter arose in this cause as to costs. The testator had laid out 500l. or thereabouts, in the purchase of 3 per cent. consols, which produced about 800l. stock. The residue being given to the defendant for life, and, after her decease, to the children of Thomas, she transferred the stock into [*] her own name. Upon application to her by the plaintiffs, to know what the residue was, which would come after her decease to the children of Thomas, she answered, about 4007. (meaning, as she said afterwards, by her answer, the money laid out.) The plaintiffs, by their bill, made the Governor, &c. of the Bank parties, and brought them on to the hearing. This his Honor objected to as an unnecessary expence. Mr. Mansfield argued that it was not so; because, in practice, the subpoena being served, operated upon the Bank as an injunction, and prevented their permitting the executor to transfer, which they never would do after service of the subpoena. His Honor said, although this was so in practice, it was not so in law ; as the subpoena served would not be an answer to an action for (1) In Darlington v. Allen, 16 Nov. 1786, His Honor, in a similar case, directed "the plaintiff to pay to the Bank all their costs subsequent to their putting in their answer, but would not give them out of the funds. And he desired the bar to take "notice, that he considered the practice of bringing the Bank to a hearing as totally unjustifiable, though it might be necessary to serve them with subpana, and get their "answer." From Mr. Cox's MS. notes, 44 not not permitting a transfer, although an injunction would (2): and declared it improper to bring the Bank to an hearing, and, on that account, ordered the plaintiffs (3) to pay the costs of the Bank, as against whom the bill was dismissed; and as against the executrix, an account of the testator's estate and effects, the debt due from John to be paid as aforesaid, (4) the residue to be transferred to the accountant-general, the interest to be paid to the widow for life, and then among the children of Thomas; the other costs out of the assets of the testator. (2) The practice of the Bank, upon notice of any dispute, is to withhold a transfer for some short limited time, in order to give the party opportunity to apply for an injunction: if he does not avail himself of it, a transfer will be permitted of course. (3) See note (1) antea. (4) "Declare that the bequest in the will of the testator W. W. of the sum of 300!. "and upwards, due by bond from his brother John W., and thereby given in thirds to the "defendant J. W. and the plaintiffs T. W. and N. W., according to the true construction "of the said testator's will, includes the sum of 2001. due on bond from the defendant, "the said J. W., as executor of Nicholas W. deceased; the sum of 100l. also due from "the said defendant J. W. as executor as aforesaid under the covenant of the said testator "Nicholas W.; and also the legacy of 501. due from the said defendant J. W. as executor ** as aforesaid for the legacy given by the will of the said testator Nicholas W." Reg. Lib. 1786. WILLIAMS against WILLIAME HORTON against WHITAKER. [26 June & 25 July.] (Reg. Lib. 1785. A. fol. 730.) HIS [The case was argued 27th June, (absente Lord Mansfield,) and returned with a certificate from the three puisne Judges. — Vid. 1 T. R. 346.] MR. STRATHMORE against Bowes. [1 & 11 July.] Master of the [Vide S. C. 2 Dick. 673. & 1 Cox, 263.] Master of the Rolls for Lord Chancellor. R. Mansfield moved for an injunction to restrain the defendant from Injunction for committing waste, by cutting down timber in the avenues, &c. of the estate of the late Mr. Bowes, at Gibside. waste against tenant for life, without impeachment of waste. (1) Affidavits read [*] By the settlement on the marriage of the late Earl of Strathmore with Miss Bowes, he was made tenant for life, without impeachment of waste, except voluntary waste in houses, remainder to Lady Strathmore, (then Miss Bowes,) in like manner, remainder over to the present against the Earl, &c. After the death of Lord Strathmore, the defendant inter- answer in supmarried with Lady Strathmore, and, being seised in her right, (but junctions to living separate from her,) had committed great waste in cutting timber, stay waste. (2) and marking other timber to be cut; among the rest, young saplins, not usually cut in the course of cutting timber. The injunction moved for was, to restrain him from cutting timber, or doing any waste in the rides or avenues to the house, or cutting timber (1) See Chamberlayne v. Dummer, antea, 1 vol. 166, 167, 168. and the notes. (2) See the practice, as at that time, accordingly stated by Mr. Dickins, the Registrar, 2 Dick, 673. [89] that 1786. STRATHMORE against BOWES. [ *90 ] that was of shade, or ornament (3) to the house, and trees unfit to cut as timber. The defendants insisted they had neither cut nor marked any saplins, or improper timber, or any trees near the house, but in rides through the woods, a mile from the house. (4) His Honor granted the injunction, saying, it ought to include every thing useful or ornamental to the house. A ride through a wood is most constitutive to the beauty of the place. He thought himself bound to grant an injunction as to the ornamental trees, though they should not be planted trees, but trees growing naturally. (5) He therefore directed the injunction to be in the terms of Mrs. Dummer's †, and to extend to cutting young saplins, and trees not fit to cut as timber. On the last day of the term, the answer, in the mean time, being put in, by which the defendant swore that he had not cut, nor intended so to do, any timber, or ornamental trees, or any saplins, although the woods received injury from some of them not being weeded out, and the plaintiff not having excepted to the answer, the defendants moved to dissolve the injunction. His Honor said, the answer not being excepted to, and being full, must be taken to be true; and therefore he must discharge the rule, although the time for excepting was not expired; and that, upon exceptions filed, the injunction would revive. [*] Mr. Mansfield afterwards said, he found he was misled as to the practice, that he ought to have read the original affidavits upon which the rule was granted, in reply to the answer, and that this was the practice in cases of waste. His Honor doubted the practice, and ordered it to stand over, in, order to enquire into it. (6) At the first seal after term, the affidavits were read, by consent (7), and the injunction dissolved. † Ante, 1 vol. p. 166. (3) The Court, however, refuses to speculate on what is ornamental or not, and confines itself to what has been planted for ornament. See note to 1 vol. p. 166. M. Downshire v. L. Sandys, 6 Ves. 107. 110, 111, 112. 8 Ves. 70, 71, &c. (4) Vide 7 Ves. 309. (5) This part of the report must be taken with caution, after the observations of Lord Eldon, above referred to. It is evident here that the trees were ornamental, as adorning the rides which had been cut through the woods, although the individual trees might not have been planted for ornament. The case, therefore, did not require the stress which Lord Eldon laid on the latter, as a requisite in general cases. See the note to 1 vol. 166, 167. (6) See the circumstances fully, and Mr. Dickins the Registrar's certificate, that affidavits might be read against the answer in cases of waste, 2 Dick. 673. and 1 Cox, 263. Vide also Norway v. Rowe, 19 Ves. 144, &c. and Robinson v. Ld. Byron, 1 vol. 588, 589. and the note. (7) The consent was given inadvertently. Vide 2 Dick. 676. Et vide 19 Ves. 153, 154. |