thereon." Held, that this exoneration only applied to moneys so charged at the date of the will, and not to money afterwards laid out and charged, nor even to money then laid out, but afterwards charged.

Alexander Houston Douglas made his will, dated the 30th of June 1843, of which the material part was as follows:

:

"I give and bequeath to my sister Miss Elizabeth Houston the sum of £1000 of lawful money, to be paid to her my said sister within three months next after my decease, to purchase any article as a token of remembrance of me; and I do also acquit and absolutely exonerate my said sister from all payments and claims in respect of money laid out by me in repairs and improvements of the estates in Scotland of which I am in possession, or receipt of the rents as heir of entail, and which money has, according to the laws of Scotland, been charged thereon, a proportion whereof my said sister, as the next heir in tail of the same estates, might otherwise have to pay, contribute, or make good to my representatives or personal estate. And I hereby declare that the bequest to or in favour of my said sister by this my will would have been of much larger amount had she been in need of it; but as my said sister has a fortune of her own, and will acquire a large addition thereto at my decease, I have only left the above bequest as a remembrance and token of my sincere affection for her. . . . And as to all the rest, residue, and remainder of my real and personal estate and effects whatsoever and wheresoever, and of what nature or kind soever, and whether in possession, remainder, reversion, or otherwise, of or to which I may die seised, possessed, or entitled, or in, or to, or over which I have, or, at the time of my decease, may have, any right, [401] interest, or power of gift, devise, bequest, direction, appointment, or disposition, in any manner howsoever, I do hereby (in case I shall have no child living at my death, or born in due time after, who shall live to acquire a vested interest in the residue of my estate and effects under the bequest herein before contained) give, devise, bequeath, direct, and appoint the same and every part thereof unto and to the use of my dear wife Louisa Houston Douglas, her heirs, executors, administrators, and assigns, for her and their own absolute use and benefit."

The testator died in June 1852, leaving his sister Elizabeth and his wife Louisa surviving him.

The testator was tenant for life, under a Scotch deed of entail, of the estates mentioned in his will, of which his said sister, Elizabeth Houston Douglas, then Elizabeth Houston, was the nearest heir of taillie.

Under the provisions of the Montgomerie Act, 10 Geo. 3, c. 51, the testator had, in 1836, given formal notice to his said sister of his intention to execute certain improvements on these estates, declaring, in the terms of the said statute, that he, his heirs, executors and successors, should be creditors to the heirs of taillie succeeding to the said estates for three-fourth parts of the money so expended.

Previously to the date of his will the testator accordingly expended £4419 in such improvements, in respect of £4124, 18s. 3d., of which the requisite annual vouchers were recorded at the date of the will, so as to complete the charge as to that sum under the provisions of the Montgomerie Act. Of the remaining £294, 1s. 9d. the vouchers were recorded after the date of the will; so that, as to this sum, the charge was not then completed. The testator laid out also a considerable sum after the date of the will, [402] which was duly charged under the Act at the time of his death.

These facts were stated in a special case, in which the said Elizabeth Houston Douglas was Plaintiff, and the said Louisa Houston was Defendant; and the question was whether the exoneration of the estates by the testator's will extended to the sums so charged and spent by the testator after the date of the will.

By the effect of the Montgomerie Act, moneys laid out according to notice were not charged until the vouchers were recorded; but when such record was made it related back, so as to charge three-fourths of these moneys from the time when they were laid out.

Mr. Anderson, Q.C., and Mr. Erskine, for the Plaintiff. The will speaks from the death of the testator: 1 Vict. c. 26, s. 24. It would have been so as to a bequest of personalty before that statute. In Bridgeman v. Dove (3 Atk. 201) the following direction in a will, "Creating St. Mary's and Creating St. Olave's, I make liable to all

debts I have contracted since 1735," was held to charge those estates with all debts due at the death of the testator; Lord Hardwicke saying "have contracted' must be read shall contract,'" and it is the same since the Act, unless a contrary intention appear by the will: Cole v. Scott (1 Mac. & G. 518), Doe d. York v. Walker (12 M. & W. 591).

Mr. Wilcock, Q.C., and Mr. Jessell, for the Defendant. An intention that this will should not speak from the death of the testator, but from its date, sufficiently appears upon the face of it. The intention might have been so manifested as to produce that effect in bequests of per-[403]-sonalty before the recent statute, as by the word "now" Attorney-General v. Bury (1 Eq. Ča. Abr. 201).

So, where a testator gave to his son all sum and sums of money due to me from him on bond or any other security," Sir Lloyd Kenyon, M.R., said that the testator must be supposed to measure the bounty according to his situation at the time of making the will, and held that a bond subsequently given to him for an additional debt was not included in the bequest: Smallman v. Goolden (1 Cox, 329).

These cases were before the new Act; but Lord Cottenham, in Cole v. Scott (1 Mac. & G. 518), intimated an opinion that that statute had not altered the law as to personal estate.

Mr. Anderson, Q.C., in reply.

THE VICE-CHANCELLOR Sir W. PAGE WOOD. The question in this case is one which, although there is not any great difficulty in applying the law in the present instance, involves a point of considerable interest under the new Wills Act. The question is, how far the 24th section of the Act, which directs "that every will shall be construed, with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will," is to be considered as applicable to those gifts of personal property which, before the Act, would have been specific legacies.

As regards real estate, every devise was specific before the Act but it was important to have a clause of this [404] description in the Act with reference to both real and personal property. It is true that a general bequest of personal estate passed, even before the Wills Act, all that the testator was entitled to at the time of his death. But there was another considerable class of cases, in which gifts of personalty were held to be specific and which, since the new statute, may possibly include portions of the property which would not have passed except by its operation; in particular, those cases in which a testator bequeaths the whole of some one genus of his property, as, for instance, all debts due to him on bond or simple contract; and the question is whether he is not in such cases to be taken as knowing the statute, and intending to give all his property that may answer that description at his death; and Doe d. York v. Walker (12 M. & W. 591) is a strong authority for the construction of such a gift according to the view of the Plaintiff in this case. In Doe d. York v. Walker (Ibid.) the gift was of all the estates of which I am seised in the parish of Bowden; and that case, in fact, determined that, where a testator describes property "of which I am seised," that is nothing more than the expression "all my estates; and unless there is something definite, as in Cole v. Scott (1 Mac. & G. 518), to shew that the testator intended to refer to property in his possession at the date of the will, such a gift would pass everything which answered the general description at the death of the testator.

In Cole v. Scott (Ibid.) Lord Cottenham says, what everyone must agree in thinking correct, that the intention of the testator is not to be altered; and if it be clear that the testator is not referring to a general class of property, but to something specific, the new statute is not to have the operation of passing property which evidently was not in the contemplation of the testator, where the subject of [405] the gift appears to have been defined and marked out by him as existing at the period when he is speaking.

I can imagine that, under the new statute, a gift of "all my stock" would pass all stock to which the testator was entitled at the time of his death. But suppose the bequest were of "all my stock which I have purchased," that would make a considerable difference, and would, I think, be enough on the face of the will to shew that the

testator was defining the particular portion of the property which he intended to give as being property then in his possession; so, if the gift were of "all the debts due to me on judgments," it is impossible that judgments obtained after the date of the will would pass; but if it were "all judgments which I have registered," that would be taking a particular class of judgments out of the general class, and would shew that the testator did not intend his will to have the sweeping operation of passing all judgment debts registered by the testator at the time of his death.

In this case I am obliged to come to the conclusion that the testator intended to give only a particular portion of the money expended in improvements, though the effect of that construction will be somewhat hard, looking to the fact that, under the Montgomerie Act, the testator is entitled to be a creditor of the heirs in taillie succeeding to the estates for three-fourth parts of the money so expended by him. And looking to these words only of the will, "I do also acquit and absolutely exonerate my said sister from all payments and claims in respect of money laid out by me in repairs and improvements of the estates in Scotland," I think that upon those words, coupled with the notices which he had given, and the operation of the Montgomerie Act, it might have been possibly successfully argued that money laid out after the date of the will would pass under such general words [406] of description, the testator's intention being to exonerate his sister in respect of all money laid out under the Act as to which he had given the required notices; and that, although the words "laid out by me" are in the past tense, that would not be sufficient indication of an intention to confine the exoneration to money laid out at the date of the will.

The

But the subsequent words, "and which money has, according to the laws of Scotland, been charged thereon," are so clear, precise and specific that they must be held to point to the particular date of the will, and to refer to those moneys only as to which he had gone through the ceremonies prescribed by the laws of Scotland, in respect of which he had given notice that he intended to be a creditor, and had recorded a charge and made himself a creditor, not against the estate strictly speaking, because it is rather a personal charge against the heir in taillie. testator had a meaning in those expressions; they only refer to that money which he had actually laid out and made chargeable on the heir in tail in respect of her interest in the estate. He intended to exonerate her from these charges. If he had omitted to record them from year to year the charges would have been lost; therefore it is not an ideal difference that he is making. There might have been money laid out in improvements and not charged upon the property; therefore those words, though words of description, serve to identify the particular moneys to which the testator intended to refer. It is said that, if the general words would have passed all the moneys laid out at his death, I must not limit them by the other words of description; but when I am giving a statutory effect to the words and not their plain grammatical meaning, for, according to that, they are all in the past tense, the description of the property is the very thing to which I must look in order to identify it. [407] And if the intention has been such as the Act requires, and is expressed with sufficient clearness on the face of the will to take it out of the statute, I do not see any mode in which I could weaken the efficacy of those words as describing the particular property. There are other words which have some bearing on the question, such as where the testator says "the bequest to or in favour of my said sister by this my will would have been of much larger amount had she been in need of it; but as my said sister has a fortune of her own, and will acquire a large addition thereto at my decease, I have only left the above bequest as a remembrance and token of my sincere affection for her." Coupling the language there used with that of the bequest of £1000 to purchase a token of remembrance, I am inclined to think that the testator did there refer to that particular bequest only, and not to the exoneration. Still, the exoneration of the property follows the bequest of £1000, and this clause as to the sister comes afterwards. It is not, however, so clear as to enable me to rely on those words alone for the intention of the testator, merely as indicating that he was measuring his bounty by the scale of the amount of the exoneration. He also sometimes, in other parts of his will, distinguishes between the past and future tenses. "My sister has a fortune of her own, and will acquire a large addition

thereto at my decease;" and, again, of property "over which I have, or at the time of my decease may have, any right;" but I think the conclusive part of the will is where he is speaking of the moneys as actually charged. This construction will exclude the £294 and also the moneys expended after the date of the will.

[408]

SMITH V. THE LONDON AND SOUTH-WESTERN RAILWAY COMPANY.
March 3, 1854.

[S. C. 2 Eq. R. 428; 23 L. J. Ch. 562; 2 W. R. 310. See Price's Patent Candle Company v. Bauwen's Patent Candle Company, 1858, 4 K. & J. 730.]

Account. Injunction. Infringement of Patent. Delay.

The right to a decree in equity for an account of the profits made by the manufacture and use of articles in infringement of a patent is incident to the right to an injunction to restrain future infringements; and where no case is made for the injunction the account will not be decreed.

The owners of a patent for a peculiar mode of manufacturing iron wheels for railway carriages having discovered that several railway companies were violating their patent brought an action for damages against one of such companies only, but did not in any way give notice to the other companies to discontinue their infringements of the Plaintiffs' right. In the action the validity of the patent was disputed, and it was not decided until three years after the patent had expired, when a verdict was given for the Plaintiffs, with large damages. Thereupon the Plaintiffs filed a bill for an account of profits, and an injunction against another of the companies who had infringed their patent, complaining of acts done nine years before. Held, that the delay was not excused by the pendency of the action, but was fatal to the Plaintiffs' case.

The bill in this suit was filed by the owners, under an assignment dated the 15th of August 1845, of a patent for a peculiar mode of making the wheels of carriages in iron, chiefly adapted for the wheels of railway engines. The letters patent were dated on the 14th of August 1835, and the privilege was given for fourteen years from that date, that is, to continue till the 14th of August 1849.

During the continuance of the patent the Plaintiffs discovered that it was being infringed by several railway companies, and in particular by the London and NorthWestern Railway Company; and, after a long negotiation and correspondence, on the 29th of May 1852 an action was commenced by the Plaintiffs in the Queen's Bench against the London and North-Western Railway Company, to recover damages from them for an infringement of the patent; and the validity of the patent came in question in the action which was decided in the Plaintiffs' favour in the spring of 1853, and a verdict was given for them with £1250 damages.

The Plaintiffs now filed the bill in this suit against another railway company, namely, the London and South-Western Railway Company, alleging that they had recently discovered, as the fact was, that the Defendants, the London and SouthWestern Railway Company, were infringing the said letters patent, to the Plaintiffs' great prejudice; and that they were, without the leave and license of the Plaintiffs, manufacturing or causing to be manufactured in Eng-[409]-land, and were using for their own profit and emolument, large quantities of wheels, made in the manner and according to the principle of the said invention, and in breach of the said letters patent, and were also using large quantities of such wheels manufactured by other persons in breach of the said letters patent, and that they were thereby deriving great gains and profits; and the Plaintiffs thereupon applied to the Defendants, the London and SouthWestern Railway Company, and requested them to discontinue their said infringements and to make compensation for the same; and, in particular, in the month of April 1853 the Plaintiffs wrote and sent to the Defendants a letter, which, so far as material, was in the words and figures following:-"Liverpool, 12th of April 1853.-The validity of Mr. Day's patent for a wrought-iron wheel having now been established by the

verdict of a jury, at the last Liverpool Assizes, we are requested to apply for an account of the wheels manufactured or used by you prior to the expiration of the patent in August 1849, and we will then submit for your consideration a rate of royalty, which will be reasonable, and we have no doubt will be satisfactory to you. We shall feel obliged by an early answer." And on the 13th of May 1853 the Plaintiffs' solicitor wrote and sent to the Defendants another letter, which, so far as material, was in the words and figures following:-"Liverpool, 13th of May 1853.— Referring to our letters to you on the subjects of infringements of Mr. Day's patent for wrought-iron wheels, we are directed to state that, unless the information sought for by us be furnished before the 20th instant, it will render it necessary to commence legal proceedings; and we shall in such event give in evidence the applications we have made to save the expenses of a bill of discovery and account." But the bill alleged the Defendants, the London and South-Western Railway Company, had refused to comply with the requirements contained in the said letters; and, in particular, the said Defendants, [410] on the 6th of June 1853, through their agent, wrote and sent to the Plaintiffs' said solicitor a letter, which, so far as material, was in the words and figures following:-"Gentlemen,-In reply to your letter of the 3d instant, I am instructed to say that the company have made no wrought-iron wheels before 1849, nor at any time previous to the late application; but that the company cannot conceive on what grounds you can call upon them to state what wheels they have purchased and used." And the bill alleged that the Plaintiffs had been unable to obtain evidence of the number and value of the wheels so made, or of the wheels so used by the Defendants, the London and South-Western Railway Company, in breach of the said letters patent; and the Plaintiffs were advised that, as the validity of the said patent had been disputed by the London and North-Western Railway Company, and would come in question in the aforesaid action, the Plaintiffs could not with propriety or effect institute proceedings against the Defendants, the London and South-Western Railway Company, until the aforesaid action against the London and North-Western Railway Company had been tried and disposed of, and the validity of the said letters patent established at law. The bill prayed that an account might be taken, by and under the direction of the Court, of all and every the wheels made or manufactured on the principle of the aforesaid invention, in breach of the said letters patent, which had been made or caused to be made or used by the Defendants, the said London and South-Western Railway Company, or by any other person or persons by their order or on their behalf, between the said 15th day of August 1845 and the said 14th day of August 1849, and also an account of all such of the said wheels as had been sold or disposed of by or by the order or for the use of the said Defendants, the London and South-Western Railway Company, and of the gains and profits made thereby; and also an account of all the gains, profits and [411] emoluments made or derived by the said last-named Defendants from or by reason of the use or employment of any such wheels as aforesaid, from the 15th day of August 1845 to the present time; and that the said Defendants, the said London and South-Western Railway Company, might be decreed to pay to the Plaintiffs what should be found to be due to them upon the taking of the said accounts, and for an injunction to restrain the said London and South-Western Railway Company, their servants, agents and workmen from using or causing to be used, and also from selling or otherwise disposing of, any wheels made during the said term of fourteen years, on the principle of this discovery, or in breach of the said letters patent, or only colourably differing therefrom.

The Defendants, the company, by their answer, admitted that they had, before the expiration of the patent, purchased about 402 wheels, which were made on the principle of the Plaintiffs' patent, and had used them since 1845, and were still using them, without the leave or license of the Plaintiffs; and the Defendants also admitted the correspondence above mentioned, and the refusal of the company to comply with the request then made by the Plaintiffs; and that during the continuance of the patent the company had advertised for wrought-iron wheels; and that tenders were made to them by different persons, and large quantities of wheels ordered and supplied to the company accordingly; and that such wheels were made according to the principle of the said invention, but that the company had never manufactured any such wheels; and that the company were then running engines, two in particular, called respectively