The clerk at the enrolment office cannot receive an enrolment conditionally, and the Master of the Rolls refused to cancel or vacate an enrolment of a specifica. tion which had been left at the office, and had been enrolled, notwithstanding directions not to enrol it until further order.

THIS was a petition of a patentee, praying that the enrolment of his patent might be cancelled or vacated, under the following circumstances, stated in the petition :

The petitioner obtained a patent dated the.3d of June, 1843, subject to the usual conditions for making it void in default of the patentee enrolling a specification within six months "next and immediately after the date of the letters patent."

The specification being acknowledged by the petitioner, was, on Monday, the 4th day of December, 1843, taken to the enrolment office and delivered to a clerk in attendance there, with written instructions annexed not to enrol it until further order, it being doubtful, *whether the enrolment of it on [*105] Monday, the 4th of December, would be in sufficient time to prevent the letters patent from being void.

The written instructions were as follows: "Brough's specification. To be left at the enrolment office; but as yesterday was the last day, and it being doubtful whether the patent is not void, although the last day was on a Sunday, we do not wish it enrolled at present, until further advised as to its utility. If we wish it to be enrolled, it will, of course, be marked as of to-day."

On the 6th of December, the petitioner again called at the enrolment office, when the clerk referred to the fact of having received the specification, upon the terms of the aforesaid instructions, but stated that if it was intended to be enrolled, it was necessary that he should be informed of such intention.

The petitioner, being advised not to to rely on the first patent, applied for a new grant, and there being no opposition, it was probable that the new grant would be completed in a fortnight. The petitioner's agent, on the 9th of January, applied at the VOL. VII.

12

1844. In re Brough.

enrolment office for the specification, "when he was informed, to his great surprise, that the same had been enrolled, notwithstanding the written instructions to the contrary." The agent required that it might be cancelled, but was ultimately informed that it could not be cancelled without an order of the Master of the Rolls.

The patentee, by his petition, stated that his interest might be most prejudicially affected, if such unauthorized enrol[*106] ment was allowed to remain uncancelled and *unvacated,

and that he would be prepared to enrol a specification of his invention, as soon as the letters patent for which he was applying were sealed, which would be in about a fortnight. He prayed that the enrolment of the patent might be cancelled or vacated.

Mr. James Parker, in support of the petition referred to Ex parte Peck.(a)

Jan. 19.-THE MASTER OF THE ROLLS-I cannot make any order on this petition. The case cited of Ex parte Beck does not apply; for on inquiry, I find, that in that case there had been no enrolment, and the question was, if there was to be an amendment or a new patent.

Here the specification was taken to the enrolment office on the 4th of December, and nothing was done until the 9th of Jan

uary.

I am of opinion that the specification can be delivered into the office only for the purpose of being enrolled. To make the enrolment is in such a case the sole business of the office; the petitioner had no right to give special directions to the clerk there, and if he meant to keep any control over the enrolment he ought to have kept the specification in his own hands. It was no part of the officer's duty to act as the agent of the petitioner in such a

matter.

I had rather not say more as to this matter, or as to the effect of the 3d of December, being a Sunday, further, than it appears

(a) 1 Bro. C. C. 578.

1843.-Marquis of Hertford v. Lord Lowther.

to me a serious question, whether the petitioner can be relieved by any authority less than an act of parliament.[1]

*MARQUIS OF HERTFORD v. LORD LOWTHER. [*107] (The Countess Berchtoldt's Case.)

1843: June 9, 10; December 12.

A testator bequeathed as follows:-" to M. C. B., besides Austrian metalliques for 104,000 florins, I give 5000l." By a subsequent codicil he bequeathed as follows:-"Whereas, I have by indorsement on two little parcels, containing 104 Austrian bonds of 1000 florins each, given them to M. C. B.; I confirm said disposition, and add to it 20,000l." Held. first, that the testator, as to the Austrian securities, referred to the same subject matter; and the testator not possessing such securities at his death, that the gift of them failed; and, secondly, that the gifts of the two sums of 5000l. and 20,0001. (though both were connected with the gift of the same Austrian securities ;) were cumulative and not substantial.

Where a testator, having given a general legacy, by a subsequent instrument makes it specific, the ademption of the specific legacy, without more, will not set up the general legacy.

THE late Marquis of Hertford, the testator in this cause, hav ing, by several codicils to his will, made large provisions for his ward the Countess Berchtoldt, by a codicil dated Boulogne-surMer, 17th of September, 1835, bequeathed as follows:-" To Matilda Countess Berchtoldt, besides Austrian metalliques for 104,000 florins, I give 50007.”

By another codicil, dated Milan, 27th of January, 1837, he bequeathed as follows:-" Whereas I have by indorsement on two little parcels containing 104 Austrian bonds of 1000 florins each, given them to Matilda Countess Berchtoldt, I confirm said disposition, and add to it 20,000l. English currency."

By a subsequent codicil, dated in April, 1839, he ratified and confirmed his will and codicil.

The master, by his separate report, made pursuant to the de

[1] In re Sharp's Putent, 3 Beav. 294; In re Nickels' Patent, 4 Beav. 503; S. C. 1 Phillips, 36

1843.-Marquis of Hertford v. Lord Lowther.

cree, found, that the testator did not die possessed of the Austrian metalliques for 104,000 florins (mentioned in the codicil of the 17th of September, 1835,) or of the 104 Austrian bonds (mentioned in the codicil of the 27th of January, 1837 ;) and he therefore found, that the legacies of Austrian metalliques for 104,000

florins, and 104 Austrian bonds of 1000 florins each [*108] *were adeemed. And he further found, that the legacy of 20,0007., mentioned in the codicil of the 27th of January, 1837, was a substitution for the legacy of 5000l. mentioned in the codicil of the 17th of September, 1835; and in conformity with the finding, the master, in taking an account of what was due to the Countess Berchtoldt, excluded the bequests contained in the codicil of the 17th of September, 1835, and the bequest of 104 Austrian bonds of 1000 florins each, mentioned in the codicil of the 27th of January, 1837.

The Countess took exceptions to the master's report, and, admitting the legacy of 104 Austrian bonds for 1000 florins each was a specific legacy and adeemed, she claimed to be entitled to the legacies alleged to be given by the codicil of the 17th of Sep tember, 1835, and also to the 20,0007. given by the codicil of the 27th of January, 1837.

Mr. G. Turner and Mr. Tripp, for the Countess Berchtoldt.

Mr. Pemberton Leigh and Mr. Follett, for the executors.

Sir C. Wetherell, Mr. Kindersley, and Mr. Schomberg, for the residuary legatee.

Dec. 12.-THE MASTER OF THE ROLLS:-In amount and description, Austrian metalliques for 104,000 florins have the same meaning with 104 Austrian bonds for 1000 florins each;

and as to the legacy it has been argued, 1st, That the [*109] first gift was a general *legacy.(a) 2dly, That the second gift, which is a specific legacy, was not a substitution for

(a) Robinson v. Addison, 2 Beavan, 515; Bronsdon v. Winter, Ambler, 56; Allen v. Callow, 3 Ves. 289; and Barclay v. Wainwright, 3 Ves. 462.

1843.-Marquis of Hertford v. Lord Lowther.

the first,(a) and 3dly, That if it ought to be so considered, the ademption of the substituted legacy operated as a revivor of the gift for which it was substituted.

Looking minutely at the words used by the testator in both the codicils in question;-observing that in the second of them he evidently treated the gift as having been made by the indorsement on the parcels, and that by the first of them he rather alludes to the gift as having been otherwise made, than as being then made, I think that he must be considered as referring to the same subject matter, the same specific legacy in both instruments, and that in the two codicils he was not intending to make two distinct gifts, or two gifts of which the last was to be a substitution for the first, but was intending to allude to one gift otherwise made; but if the case were otherwise, if the first of these two codicils gave a general legacy, and the second a specific legacy, I should be of opinion that the subject of the gift was the same. It does not, indeed, appear by proof, that the testator actually possessed Austrian metalliques for 104,000 florins on the 17th of September, 1835. It may possibly, however improbably, have been, as now argued, that he meant such securities to that amount to be purchased, out of his general estate, for the legatee, and that he afterwards purchased the same amount himself, and made a specific gift or legacy of them. Even if this improbable state of facts appeared, I could *not find any [*110] ground for presuming, that he intended to give the amount as a specific legacy in one codicil, and leave his executors, acting under the former codicil, subject to the obligation of purchasing an equal amount for the same legatee out of his general assets. I should find it necessary to conclude, that the specific legacy was intended to be a substitution for the first; and if the testator himself made a legacy specific, which was at first intended to be general, I am of opinion that the ademption of the specific legacy, without more, would not set up the general legacy. It therefore appears to me that the master's report is right,

(a) Hurst v. Beach, 5 Mad. 358; Guy v. Sharp, 1 Myl. & K. 589; Robley v. Robley, 2 Beavan, 95; Wray v. Field, 6 Mad. 300; Mackenzie v. Mackenzie, 2 Russ. 262.