money, under sect. 16 of the Trustee Act, 1893, and was competent to convey without the concurrence of her husband. He therefore declared that the requisitions of the purchaser had been sufficiently answered.

Solicitors: Few & Co., for Carr & Coverdale, Leeds; Hamlin, Grammer & Hamlin, for H. R. Cousins, Leeds. H. B. H.

bigh Court of Justice.

CHANCERY DIVISION.

Kekewich J. In re How GATE AND OSBORN.

Jan. 25.

Vendor and purchaser —Title — Misdescription —Alteration of name of party in title-deed-Married woman-Trustee mortgagee - Reconveyance Concurrence of husband Separate acknowledgment. Vendor's summons under the Vendor and Purchaser Act, 1874 (37 & 38 Vict. c. 78).

In August, 1901, the respondent became the purchaser of certain freehold property in Leeds. The abstract of title commenced with a mortgage, dated in 1878, to three persons, of whom the third was described as William Gray. Upon comparing the abstract with the original deeds, it was found that the Christian name "William" had been erased and the names "Edward Thomas" substituted, and it appeared that the deed had not been executed by the mortgagees. The purchaser's solicitors by their requisitions asked for an explanation of this alteration, and in reply the vendor's solicitors furnished them with two statutory declarations, one by the solicitor who prepared the deed, and the other by Ann Booth, the sole surviving mortgagee. It appeared from these declarations that the name "William" was inserted in the deed by the solicitor owing to his being misinformed; that the deed was executed and registered in its original form, and that the mistake had been repeated in the recitals in subsequent deeds; that it was not known when or by whom the alteration was made; and that the real name of the third mortgagee was Edward Thomas Gray. It also appeared that the mortgagees were trustees, and that the mortgage money had been repaid to the sole surviving trustee, Ann Booth, a married woman, who had reconveyed the property to the mortgagor. It was further objected on behalf of the purchaser that Ann Booth had no power to reconvey the property without the concurrence of her husband, and a separately acknowledged deed under the Fines and Recoveries Act.

The vendor asked for a declaration that the requisitions had been sufficiently answered, and that a good title had been shewn according to the contract.

P. O. Lawrence, K.C., and R. J. Parker, for the vendor.
H. Greenwood, for the purchaser.

KEKEWICH J. decided, first, that the alteration, not being material, did not avoid the deed; second, that Mrs. Booth was

In re CHISHOLM. GODDARD v. BRODIE.

Practice-Costs-Power of appointment-Successive appointments of specific sums-Appointment of residue.

By a settlement dated the 9th of April, 1851, made on the marriage of the testator and his wife, certain funds were brought into the settlement by the testator and his wife, and subject to their life interests a joint power of appointment was given to them over the whole of the capital among the children of the marriage.

Among the children were four daughters-Katherine, Annie, Henrietta and Hannah.

In 1871 Katherine married F. J. L. Blackwood, and by a deedpoll dated the 18th of April, 1871, the testator and his wife, in exercise of the powers of their marriage settlement, jointly appointed that the trustees of the settlement should, from and after the decease of the survivor of the testator and his wife, stand possessed of 10,0001. sterling, part of the trust funds of the settlement, in trust for their daughter Katherine.

In 1879 Katherine Blackwood married H. V. Corrie, and the 10,000l. was assigned to the trustees of the settlement of that marriage. Corrie had since died, and there was no issue of the marriage, and in the events which happened Katherine Corrie became solely entitled to the 10,000l. which was reassigned to her.

In 1877 Annie married A. Trinder, and by a deed-poll dated the 5th of September, 1877, the testator and his wife appointed 10,000l. in trust for her in the same form as the appointment made in trust for Katherine, and this sum was assigned by her to the trustees of her marriage settlement.

In 1886 Henrietta married R. M. Middleton, and by a deedpoll dated the 5th of October, 1886, the testator and his wife made a precisely similar appointment of 10,0007. in her favour, and this sum was assigned by her to the trustees of her marriage settlement.

In 1891 Hannah married S. Baker, and by a deed-poll dated the 21st of November, 1891, the testator and his wife appointed the funds of the settlement which should remain after satisfying the previous appointments in trust for her, provided that not more than 10,000l. was to be appointed. The appointed fund was assigned by Hannah to the trustees of her marriage settlement, and the testator covenanted with the trustees of the settlement and with Hannah, in case the appointed fund should not amount to 10,000., that his executors or administrators would make up the deficiency. In 1899 Hannah Baker married F. F. Goddard.

The testator died on the 31st of December, 1899, and his wife died on the 24th of September, 1901. At this date the trust funds of their marriage settlement amounted approximately to 38,0007.

This summons was taken out by Mrs. Goddard and the trustees of the Baker settlement against the trustees of the testator's settlement, Mrs. Corrie, the trustees of the Trinder settlement, the trustees of the Middleton settlement, and the executors of the testator, to determine (inter alia) whether in the distribution of the trust funds comprised in' the testator's settlement the three first appointed sums of 10,0007. ought to bear any and what proportion of (1) the estate duties respectively payable on the deaths of the testator and his wife; (2) the costs of raising the duties; (3) the costs of raising the said three portions; (4) the costs of winding up the trusts of the testator's settle

ment.

Warrington, K.C., and Ashworth James, for the plaintiffs. Renshaw, K.C., and Hatfield Green, for Mrs. Corrie, the trustees of the Trinder settlement, and the trustees of the Middleton settlement.

P. Ogden Lawrence, K. C., and Dunham, for the executors. Lindley, for the trustees of the testator's settlement. KEKEWICH J. held that the duties, the costs of raising the duties, the costs of raising the portions, and the general costs of administering the trust funds, ought to be borne rateably by the appointed funds. He thought that this case fell within the principle of Moore v. Dixon, (1880) 15 Ch. D. 566, and In re Shaw, [1895] 1 Ch. 343, and within the rule laid down by Chitty L.J. in In re Saunders, [1898] 1 Ch. 17, 23. Solicitors: Janson, Cobb, Pearson & Co.; Trinder, Capron & Co.; Simpson & Bowen. H. B. H.

Byrne J.

In re FERGUSSON'S WILL. Jan. 28. Will-Construction—Next of kin—Sister of the half-blood— Nephews and nieces-Domicil-Foreign law.

The testator, a domiciled Englishman resident in India, who died in 1898, bequeathed a pecuniary legacy to his niece Minnie Koppe. The will contained a declaration, that in case of the death of a legatee in the lifetime of the testator, the legacy was not to lapse, but should be divided among the "next of kin " of the deceased legatee. Minnie Koppe died in June, 1897, a domiciled German subject, without any issue; her nearest relations were a half-sister, and nephews and nieces, the children of a deceased brother. According to German law, the sister of the half-blood came after nephews and nieces, children of a brother or sister of the whole blood, in ascertaining the next of kin; and the question for decision was whether Minnie Koppe's "next of kin" were to be ascertained by German or English law.

Jessel, for the nephews and nieces.
W. M. Cann, for the half-sister.
Borthwick, for the trustees of the will.
W. S. Baines, for other claimants.

BYRNE J. said that the will, being that of a domiciled Englishman, must be construed according to English law; that will contained a gift to the "next of kin " of a legatee, which according to English law meant, as there was no reference to the Statute of Distributions, nearest blood relations in an ascending and descending line, those of the half-blood being equally entitled with those of the whole blood, and no authority

next of kin according to German law. For these reasons he held that the sister of the half-blood was entitled to this legacy to the exclusion of the nephews and nieces.

Solicitors: Waterhouse & Co.; J. Banks Pittman; Herbert Oppenheimer; Lawford, Waterhouse & Lawford. W. C. D.

Buckley J.

Jan. 30. ACETYLENE ILLUMINATING COMPANY v. UNITED ALKALI COMPANY.

Patent - Anticipation - Application by patentee in a foreign country-Subsequent publication in this country by another person-Later application by patentee in this country for a patent-Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57), s. 103, sub-ss. 1, 2.

This was an action for the infringement of a patent. A preliminary question arose whether under the circumstances of the case the defendants could rely on an alleged anticipation.

On the 28th of February, 1894, the patentee, named Willson, of whom the plaintiffs were the successors in title, made an application in the United States of America in respect of the invention the subject of the patent.

On the 16th of March, 1894, there was publication at the Patent Office Library in this country by a man named Moissan of what the defendants alleged to be the same invention.

On the 1st of September, 1894, Willson lodged his application in this country for a patent. That application was in the common form. He did not, however, apply at that time, under sect. 103 of the Patents, Designs, and Trade Marks Act, 1883, for the patent to be dated in his favour as of the 28th of February, 1894, the date of his application in the United States.

The seven months limited by sect. 103 expired on the 28th of September, 1894.

On the 20th of June, 1895, Willson's solicitors wrote to the comptroller stating that Willson desired to avail himself of the provisions of sect. 103; but the comptroller replied that he would not be justified in antedating the patent. under the provisions of that section, no application for such antedating having been made within seven months of the date of the foreign application.

On the 27th of June, 1895, Willson lodged his complete specification, which was accepted on the 30th of November, 1895, and his letters patent were sealed as of the date of the 1st of September, 1894.

That being so, the publication by Moissan on the 16th of March, 1894, was a prior publication unless Willson's application was held to date back to the 28th of February, 1894.

Moulton, K.C., Roger Wallace, K.C., and Colefax, for the plaintiffs.

Cripps, K.C., Lord Robert Cecil, K.C., Walter, and J. A. Bucknill, for the defendants.

BUCKLEY J. held that the comptroller was right, and that the patent sued upon was in fact dated the 1st of September, 1894, and, consequently, that the alleged anticipation by Moissan was one which the defendants would be in a position to avail themselves of.

Solicitors: Guedalla & Cross; J. H. & J. Y. Johnson.

G. M.

Joyce J.

NEVILLE V. BENJAMIN.

Will-Legatee entitled to share on surviving testator-Disappearance in testator's lifetime-No evidence of death-Presumption -Onus probandi.

JOYCE J. said that P. Benjamin must be presumed to be dead; the only question was when he had died. In re Walker

he had survivel the testator. That had not been proved. His Lordship, therefore, gave the trustees liberty to distribute the estate upon the footing of P. Benjamin having died in the testator's lifetime without having been married.

The testator died on the 25th of June, 1893. He had thirteen children, twelve of whom were living at his death, but as to the remaining one, namely, P. Benjamin, it was not kno vn whether he had predeceased the testator or not, he having on the 1st of September, 1892, disapparel under the following circumstances:

In August, 1892, he, being then twenty-four years of age and employed as a commercial traveller, went abrod for a holiday. On the 1st of September, 1892, he was at Aix-la-Chapelle with a friend, and after receiving a communication from his firm he left by train apparently on his way to London. Since that date nothing had been heard of him, although searching inquiries had been made and advertisements issued in all the English Colonies and in other parts of the world. It appeared that his accounts shewed large defalcations, but the communication from his firm contained no threat or suggestion of prosecution, and some of the members of the firm) were nearly related to him.

The share of his father's estate to which he was entitled if he survived the testator was about 30,000!. [

Letters of administration to his estate had been granted to one of his brothers, leave having been obtained from the Probate Division to swear his death on or since the 1st of September, 1892.

The trustees took out an originating summons to have it letermined in what manner the share of P. Benjamin in the estate of his father ought to be dealt with or disposed of by them. In answer to inquiries directed by the Court the master had stated that he was unable to certify whether P. Benjamin was living or dead, or if deal when he died. He certified, however, that P. Benjamin was not married at the time of his disappearance, and that no person claiming to be his wife or child had come in under the advertisements which had been issued, or made any application to the trustees or their solicitors.

The trustees now asked for an order upon the summons giving them liberty to distribute the estate as if P. Benjamin had predeceased the testator.

Hughes, K.C., and E. Ford, for the trustees, contended that the onus was upon the administrator of P. Benjamin to shew that he was living at the testator's death: In re Walker, (1871) L. R. 7 Ch. 120.

Jessel, for the administrator, contended that where there was ample motive for the disappearance of a person the Court would not presume death, or at any rate death at a particular period. On the contrary, it would rather presume life if the disappe irance could be accounted for. He relied upon Bowden v. Henderson, (1854) 2 Sm. & Giff. 360; Watson v. England, (1844) 14 Sim. 23; In re Corbishley's Trusts, (1880) 14 Ch. D.

Solicitors: Emanuel & Simmonds.

G. A. S.

Jan. 15, 25.

Will-Construction-Heirlooms-Dignity-Period of absolute vesting-Perpetuity.

This was an originating summons to determine whether articles of jewellery and miniatures bequeathed as heirloom to go with a title had become absolutely the property of the pesent tenant in tail male of the Viscounty Hill.

The late Aun, Dowager Viscountess Hill, by her will datel the 28th of May, 1891, appointed Fanny Melita Kynnersley and Lewis Berger executors and trustees. Her will contained the following bequest: "I bequeath my diamonds, consisting of a ti ra, necklace, pendant and earrings, and my two miniatures of Sir Roland Hill and Miss Hill, which are mounted in velvet and bracelets, and my small ring set with rabies, which was given by the Pretender to Sir Richard Hill, to my son, the Right Honourable Roland Clegg, Viscount Hill, until he shall die, and after his death to each and every of the persons who shall in turn succeed to the title and dignity of Viscount Hill, or any other title or dignity which may be granted to or assumed by any person for the time being entitled to the said title and dignity as aforesai 1, my intention being that the said diamonds and miniatures and ring shall descend as heirlooms as far as the rules of law and equity will permit.”

The testatrix died in October, 1891. Her son Rowland Clegg, third Viscount Hill, survived her. He died in March, 1895, and was succeeded by the plaintiff, his eldest son; his heirpresumptive was his brother Francis William Clegg Clegg Hill, who was also residuary legates of the testatrix. The defendants were the trustees of the will and the heir-presumptive.

Errington, for the plaintiff, argue that though it was perfectly competent for the testatrix, by apt language, to have tiel up the heirlooms so as not to vest absolutely in any tenant in tail during a life in being at the time of her decease and twenty-one years after, she had not done so by the will she made. When the plaintiff succeeded to the title he became absolutely entitled to the settled chattels.

Brinton, for the heir-presumptive. The testatrix attempted to tie up the devolution of the chattels so as to make them go with the title. She has cut down the generality of the bequest by the expression "as far as the rules of law and equity will permit," so that the chattels will vest absolutely in the Viscount who is alive at the expiration of twenty-one years from the death of the survivor of persons in being at the death of the testatrix

CROWN CASES RESERVED.

The testator in this matter gave all his real and personal estate to trustees upon trust to divide into four shares, and to pay the income of each share to one of his four daughters for life, and after her death to hold the share in trust for all her children who should attain twenty-one or marry. The will contained a general direction that all provisions made for the testator's daughters or their children, or any other persons being female, should be for their separate use without power of anticipation. By a codicil the testator gave his daughters power to appoint a life interest in their respective shares to their husbands. The testator died in 1850. One of his daughters, Esther Wiley, was married in his lifetime, and had one child, the petitioner, born before his death.

Esther Wiley died in 1875, having appointed a life interest to her husband, and leaving him, the petitioner, and six other children, born after the testator's death, surviving.

The petitioner in 1872 married a Danish subject domiciled in Denmark. In 1885 the petitioner and her husband executed a mortgage of her reversionary share under the testator's will. In 1892 the petitioner obtained a divorce from her husband. In 1900 the petitioner's father died, and the surviving trustee of the will paid the share of the petitioner under the testator's will into court. The petitioner asked that the fund might be paid out to her, notwithstanding the mortgage, on the ground that she was bound by the restraint on anticipation and the mortgage was void.

irant, for the petition, contended that, as the petitioner was born in the testator's lifetime, the restraint on anticipation bound her, though in the case of children born after his death it was void under the rule against perpetuities. He cited Herbert v. Webster, (1880) 15 Ch. D. 610.

R. J. Parker, for the mortgagee, cited Buckton v. Hay, (1879) 11 Ch. D. 645, and In re Michael's Trusts, (1877) 46 L. J. (Ch.) 651, earlier cases which were in direct conflict with Herbert v. Webster.

W. H. Cozens-Hardy, for the trustees.

SWINFEN EADY J. said that in Herbert v. Webster Hall V.-C. had the earlier cases before him, and Levertheless held to what appeared to be the sounder rule. He should, therefore, follow Hall V.-C.'s decision, and hold the restraint on anticipation good and the mortgage void.

Solicitors: Busk, Mellor & Norris, for Slater, Heelis, Williamson, Colley & Tulloch, Manchester; Orford & Sons, Manchester.

THE KING v. JAMES AND JOHNSON. Criminal law-Larceny-Wife taking goods of husband when about to desert him-Form of indictment-Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), ss. 12, 16.

Case stated by the chairman of the Glamorganshire Quarter Sessions.

The prisoners were tried and convicted at the Michaelmas quarter sessions for Glamorganshire on an indictment in the ordinary form charging them with the larceny of certain goods the property of John Thomas James. It appeared at the trial that the prisoner Eliza James was the wife of John Thomas James, and that she had taken the goods in question when about to leave or desert her husband and to join the prisoner Johnson.

It was contended that the indictment was insufficient for not averring these facts, and that the offence created by sects. 12 and 16 of the Married Women's Property Act, 1882, was a special offence, a material part of which was that the prisoner was the wife of the prosecutor, and that she took the goods when about to leave or desert him, and that, therefore, the averment of these conditions was a necessary part of the indictment.

Lloyd Morgan, for the prisoners.
Parsons, for the Crown.

THE COURT (Lord Alverstone C.J., Lawrance, Wright, Bruce, and Darling JJ.), having taken time to consider, affirmed the conviction, holding that the conditions imposed by sect. 12 of the Married Women's Property Act, 1882, did not affect the character or quality of the offence, but merely introduced matters which might be pleaded by way of defence, but which it was not necessary to negative in the indictment.

with sect. 16 and rule 217 of the Bankruptcy Act, 1883. It was contended that this statement was rendered inadmissible in evidence by 24 & 25 Vict. c. 96, s. 85, as amended by 53 & 54 Vict. c. 71, s. 27.

J. B. Matthews, for the prisoner.

A. T. Lawrence, K. C., and N. G. Davidson, for the Crown. THE COURT (Lord Alverstone C.J., Wright, Ridley, Bigham, and Walton JJ.) affirmed the conviction, and held that the evidence had been rightly admitted, considering that the statement of affairs in bankruptcy was not a statement made in any compulsory examination on the hearing of any matter in bankruptcy within the protection of sub-s. 2 of s. 27 of 53 & 54

Vict. c. 71.

Conviction affirmed.

Solicitors for the prisoner: Dobbs & Hill, Worcester. Solicitors for the Crown: The Treasury Solicitor.

A. P. P. K.

C. C. R.
THE KING v. PENFOLD.
Feb. 1.
Criminal law-Evidence of previous convictions-Charge of
offence within seven years of second conviction-Prevention of

Crimes Act, 1871 (34 & 35 Vict. c. 112), ss. 7, 9-Larceny Act, 1861 (24 & 25 Vict. c. 96), s. 116.

Case stated by the chairman of the Clerkenwell Sessions. The prisoner was charged before a magistrate with an offence under sect. 7 of the Prevention of Crimes Act, 1871, which makes persons committing certain offences within seven years of a second conviction punishable. He elected to be tried by a jury; and at the trial evidence of the previous convictions was given in the hearing of the jury, and the prisoner was convicted. It was contended that under sect. 9 of the Prevention of Crimes Act, 1871, and sect. 116 of 24 & 25 Vict. c. 96, the previous convictions ought not to have been proved before the jury until the other facts constituting the subsequent offence had been found by them.

No counsel appeared for the prisoner.

H. Sutton, for the Crown.

THE COURT (Lord Alverstone C.J., Wright, Ridley, Bigham, and Walton JJ.) upheld the conviction, holding that the evidence of the previous convictions was necessary to prove the offence charged, and was therefore admissible.

Conviction affirmed.

Solicitor for the Crown: The Treasury Solicitor.

A. P. P. K.