part, and answered part of the bill, and it might have been necessary to read the interrogatories through in that case, but it was sufficient to say the defendants had not adopted that course. The interrogatories need not have been perused until the demurrer had been heard; and the defendants could not be allowed to put the plaintiff to any additional expense occasioned by their commencing a second mode of defence to the bill before the first was disposed of.

As regarded the " 'observations," his Honour also agreed with the taxing master. On demurrer "obser vations" to the brief were unnecessary. The index and marginal notes were no doubt a great convenience, and might possibly be allowed as between solicitor and client; but as between party and party the costs of

sidered as included in the fee, per folio, for perusing

The solicitor's costs of attending counsel in conference his Honour thought should be allowed. The master had stated that the fees paid to counsel for advising were moderate and it was a saving to the

A demurrer by those defendants had been allowed with costs, and without liberty to amend. On taxation the master disallowed three items.

1st. Two sums of 13s. 4d. for the solicitor attending counsel twice in conference to advise as to demurring, the counsel's fees for the conference being allowed.

2nd. The solicitor's fees for perusing interrogatories. 3rd. The solicitor's fees for preparing observations to the briefs of counsel, including marginal notes and an index to the bill.

The bill was of great length, and dealt with a great variety of matters, in many of which the demurring

defendants had no interest. The nature of the case may be gathered from the report on a similar demurrer by another defendant (1 N. R. 425). Interrogatories were served on the defendants before they demurred. Giffard, Q.C., and Cracknall, for the motion,

referred to,

Cons. Ord. XL. rule 32;

Schedule to Order of March 6, 1860.

Roll, Q.C., De Gex, and Harding for the plaintiff. WOOD, V.-C., without calling on the plaintiff's counsel as to the second and third items, held that they could not be allowed. The fee for perusing interrogatories was a new fee introduced for the first time by the Order of March 6, 1860. Formerly the interrogatories formed part of the bill, and the fee for perusal of the bill included that for perusing the interrogatories. The words in the Schedule to the new Order were, "The solicitor of the party answering interrogatories, for perusing the interrogatories," which would not apply to a case where no answer was put in. It was true that the defendants might have demurred to

Practice-Patent-Issue.

The Court, in a suit respecting the infringement of a patent, will grant an issue to determine whether the invention described in the specification, is actually that for which the patent was granted.

This was a suit respecting the infringement of the plaintiff's patent, and it had been arranged that cer

tain issues should be tried before his Honour and a jury.

One of the proposed issues was the following:

"Whether the alleged invention, as described and claimed by William Needham, and James Kite, in the specification of the letters patent, granted to them for 'Improvements in machinery, and apparatus for expressing liquid or moisture from substances,' and dated the 14th day of July, 1853, was the invention for which Her Majesty granted the said letters patent."

Sir H. Cairns, Q. C. (with him, Bagshawe and Need ham), for the plaintiffs, objected that this issue raised a question of construction, and not a question of fact.

Aston (with him, Giffard, Q.C.), for the defendants, said, that the issue was intended to raise the question which, at Common Law, would be raised by a plea of

non concessit.

WOOD, V.-C., said, that though in general such a question would be one of construction, yet it might, under peculiar circumstances, turn out to involve a question of fact. It would, therefore, be safer to have

remainder to uses declared in the same words as those of the real estate to be purchased with the other two thirds. The testator appointed his trustees executors.

By a codicil, dated the 18th of January, 1854, the testator devised the Barnacre estate (which he had contracted to purchase) to his trustees, to uses declared in the same words as those of the estates to be purchased with two-thirds of the residuary personal estate.

The testator died on the 10th of March, 1854. Lady Bective was his only child and sole heiress-at-law. Lord Kenlis was her only son at the date of the will and the testator's death, and also the heir-apparent of the Earl. The Countess has had no son born since.

Mrs. Thompson (the widow) and the Countess were the only persons entitled to share in the testator's undisposed-of personal estate. . Mrs. Thompson died in 1861, having, by her will, bequeathed all her property to the Countess. Lord Bective proved her will.

The bill was filed by the trustees, and prayed that the rights and interests of the several persons claiming to be interested in, or entitled to, the benefit of the trusts of the testator's residuary real and personal estate, and the accumulations of the annual income thereof, might be ascertained.

For the Earl and Countess it was contended, that the annual income of the residuary real estate, and of two-thirds of the residuary personal estate, until the Countess should have a second son, or die without having had one, was undisposed of, and went to the heiress-at-law and next of kin of the testator respectively.

For Lord Kenlis it was contended, that either the income should be accumulated for the benefit of the persons who might ultimately become entitled, or Lord Kenlis was entitled to a vested estate in possession, liable to be divested on the takers under prior limitations coming into esse.

Wickens (with him Rolt, Q.C.), for the trustees.

The Solicitor-General, Hobhouse, Q. C., and F. Hawkins, for the Earl and Countess of Bective, relied principally on

Hopkins v. Hopkins, Cas. t. Talb. 44; s. c., at later stages, 1 Atk. 581; 1 Ves. sen. 268; and more fully set out in Hargrave's note (1), vii. 2 to Co. Lit. ; 271 b.

As to the real estate, the authorities were clear in their favour. It appeared from the decree made by Sir J. Jekyll, M. R., in Hopkins v. Hopkins (a copy of which they had obtained from the Registrar's book), that the devise in that case was a general one of all the testator's real estates, and therefore exactly equivalent to the residuary clause in the present case. Hopkins v. Hopkins had been followed in,

Duffield v. Duffield, 1 Dow. & Cl. 268
Wills v. Wills, 1 Dr. & W. 439.

The present case was distinguishable from the class of cases represented by

Genery v. Fitzgerald, Jac. 468, where the residuary realty and personalty being given in one series of limitations as a mixed fund, the Court had imputed to the testator an intention that the income of the realty should be disposed of in the same manner as the personalty. The case was, in fact, Genery v. Fitzgerald è converso, for here the Court would discover an intention that the income of the personal estate should follow the rents of the realty.

As to the residuary personal estate, the ordinary rule of

Green v. Ekins, 2 Atk. 473,

was subject to evidence of a contrary intention. In Hopkins v. Hopkins, the residuary personalty was directed to be laid out in lands, to be settled to the same uses as the residuary realty, and it appeared from the registrar's book (see also Hargraves note, ubi supra), that by the decree of the Master of the Rolls, affirmed by Lord Chancellor Talbot, the heir was declared entitled to the surplus produce of the personal estate, as well as the intermediate rents of the real estate. That case was decided before

Ackroyd v. Smithson, 1 Bro. C. C. 503, which decided that there was no resulting trust to the heir of money to be invested in real estate; but the principle of it, viz., that the intermediate profits of the personalty were undisposed of, made it a clear authority for the next of kin under the will now before the Court.

[Wood, V.-C., referred to,

Phipps v. Ackers, 3 Cl. & F. 702.]

Then, again, the division of the personalty into thirds made it impossible to apply the doctrine of Green v. Ekins, for if the intermediate income of the two-thirds was "residue," it should be again divided into thirds, and not all be accumulated for the takers of the two-thirds. The case from this point of view fell within the principle of

Skrymsher v. Northcote, 1 Swans. 566;
Humble v. Shore, 7 Hare, 247.
They also referred to

Fullerton v. Martin, 1 Dr. & Sm. 31;
Wyndham v. Wyndham, 3 Bro. C. C. 58;
Shaw v. Cunliffe, 4 Bro. C. C. 144;
Bullock v. Stones, 2 Ves. 521.

Sir H. Cairns, Q.C., Giffard, Q.C., and Erskine, for Lord Keulis, relied on the rule laid down in

Green v. Ekins, ubi suprà ;

that a gift of residue of personalty carried all the intermediate fruits. That rule was not shaken by the decree made as to the personalty in Hopkins v. Hopkins, The point does not appear to have been argued and the decision appears to have been come to on the erroneous assumption which prevailed before Ackroyd V. Smithson.

As to the realty, the point was governed by
Genery v. Fitzgerald, ubi suprà ;

for it could make no difference whether the realty and personalty were given in one clause, or in two clauses containing precisely the same limitations,

Gibson v. Lord Montfort, 1 Ves. 485;
Ackers v. Phipps, 3 Cl. & F. 665;
Phipps v. Ackers, 3 Cl. & F. 702;

Or again,

Turton v. Lambarde, 1 De G. F. & J. 495, was an authority for holding that Lord Kenlis was immediately entitled in possession to the income of

the estates.

case. The second class of cases were represented by Genery v. Fitzgerald. In that case there was a general gift of all the testator's real and personal estate, as one mixed fund, in a series of limitations. Inasmuch as the gift of the residuary personalty, by the rule of law, carried the intermediate profits, the Court inferred an intention that the intermediate rents should pass in the same manner as the profits of the personalty, and decided accordingly. An observation had been made in the present case, that it was singular that, when the limitations of the two-thirds of the personalty and those of the residuary realty were precisely similar, the construction of the two clauses

of the heir-no doubt an artificial one-had given rise to the different rules of construction applied to the two

27 MAY, 1863.

WOOD, V.-C., in now delivering judgment, said that, as to the realty, the case was covered by the authorities. The limitations of the Kirkby Lonsdale and Mansergh estates, subsequent to Lady Bective's interest, would, if they stood alone, have created an executory devise in her second son. In effect, then, you had an executory devise of the residuary real estates to her second and other sons, when they should come into esse. Any estate in Lord Kenlis, therefore, was expectant on the happening of a contingency, and there was no express disposition of the intermediate rents and profits pending the suspense of vesting. It was quite settled, since Hopkins v. Hopkins, that an executory devise of real estate, which did not take effect until the happening of some event, would not carry any interest in the intermediate rents and profits, but they would go to the heir at law. That rule had been followed down to Duffield v. Duffield, and Wills v. Wills; and it was impossible now to contend, in the absence of a clear gift of the rents and profits, that any gift could be presumed, either in favour of persons in esse awaiting the contingency, or for the persons first coming into esse, or, lastly, for the purpose of Such a presumption was excluded, unless something appeared on the face of the will to lead to it. There was every ingredient here which existed in Hopkins v. Hopkins, including an express clause for accumulation in a given event; unless, indeed, the mere circumstance of the word "residue" being used in this will could be considered to make a difference. There were two classes of cases in which, apparently, a contrary rule had been followed. The leading case of the first class was Stephens v. Stephens (Cas. t. Talb., 228). It was there held, that if in a devise of a particular estate the intermediate rents and profits were not expressly disposed of, and the will contained a residuary devise of real estate, those intermediate rents and profits passed by the residuary devise. That would not affect the application of the ordinary rule to the present VOL. II.

accumulation.

why the Court, having held the doctrine above-stated where there was a mixed fund, should apply the same doctrine where the testator had carefully and deliberately distinguished between the realty and the personalty. The circumstance that this was a gift of the "residue" of real estate would not make any difference in the construction. Formerly every devise of real estate, whether residuary or not, was specific. That was altered by the Wills' Act, so far as to sweep into a residuary devise whatever real estate the testator died possessed of, but not so as to change the rule of construction, that the heir could not be disinherited without express words, or what the Court regarded as a manifest intention.

His Honour, therefore, following Hopkins v. Hopkins, felt bound to declare that Lady Bective, as sole heiress-at-law of the testator, was entitled to the intermediate rents and profits of the residuary real estate, as undisposed of.

As to the two-thirds of the personalty, the case was equally clear on the authorities, commencing with Green v. Ekins, the other way. Where a testator gave personal estate, he gave all its produce, and a gift of residuary personalty, ex vi termini carried with it all intermediate profits. If Hopkins v. Hopkins had been good law on this point, it would have been an authority in favour, not of the next of kin, but of the heir. But the decree on this point was bad law; and it appeared to have been made under the influence of the fallacy, entertained by Judges of the greatest eminence before the decision in Ackroyd v. Smithson, but which now seemed transparent. The fallacy consisted in allowing the will to operate to the extent of a conversion, but not in favour of persons taking under the will, but of the heir taking against it. As soon as the proposition was reduced to clear terms, it was at once seen to be a solecism that the heir should take any part of personalty under an intestacy. The twothirds of the personalty in the present case were given with all their produce. The mere circumstance that a part of it might have been invested in real estate did not alter its character; the produce was, nevertheless,

K