Clark, which had been transferred into Court under the Trustees' Relief Act. The testator by his will, dated the 29th of June, 1818, directed his trustees to stand possessed of foursixth parts of his residuary personal estate, and of the money to arise from the conversion of his real estate, upon trust for Hannah Clark, Margaret Clark, and Elizabeth Clark, the three reputed natural daughters, and Martha Clark, the lawful daughter of the testator's brother Cornelius Clark, for their lives respectively, for their separate use, and, after their death, or respective deaths, in trust for their children respectively, as they respectively should appoint, and, in default of appointment, in trust for the children of the said Hannah Clark, Margaret Clark, Elizabeth Clark, and Martha Clark respectively in equal shares, with a limitation over, in the event of any of the same children respectively, if males, dying under twentyone, or, if females, under that age and unmarried, in favour of the other or others of the same children respectively by their respective parents. The will then proceeded as follows: "But in case the said Hannah Clark, Margaret Clark, Elizabeth Clark, and Martha Clark, shall all happen to die without leaving any child or children lawfully begotten, or leaving such, if such children shall all happen to die under the age of twenty-one years, and without having been married, then upon trust for" Cornelius Clark, and Richard Clark, and their children, with further limitations over. Hannah Clark died on the 15th of February, 1861, without ever having been married. Margaret Clark married J. Rutherford, and died, leaving one child, who attained twenty-one. Elizabeth Clark (who is still living) married G. H. Wakefield, deceased, and had three children, all of whom attained twenty-one. Martha Clark married W. C. Russell, and died, leaving two daughters, the eldest of whom only has attained twenty-one. The question which had now arisen, related only to Hannah Clark's sixth share, and was, whether cross limitations could be implied so as to carry over her share to the other tenants for life and their children, or there was an intestacy as to that share in the events that had happened. The original petition was presented by the testator's next of kin, and a cross petition had been presented by Mrs. Wakefield's children. Scott v. Bargeman, 2 P. W. 68; The authority of these cases had not been shaken by the comments on them in subsequent cases, as Skey v. Barnes, 3 Mer. 335; Currie v. Gould, 4 Beav. 117. J. W. Chitty, for Mrs. Wakefield, followed on the same side, and cited, Ashley v. Ashley, 6 Sim. 358; Pearce v. Edmeades, 3 Y. & C. Ex. 246 ; Vanderplank v. King, 3 Hare, 1. Wickens, for other respondents. Moore, for the trustees. Daniel, in reply, cited, Beauman v. Stock, 2 Ball & B. 406. WOOD, V.-C., after stating the limitations of the testator's will, and the events which had happened, said, that the only question that could be argued before him was, whether there was or was not to be implied in this state of things, a series of cross limitations between the four original legatees and their children, modo et formâ, as their original shares were given? There was no case in which the language went quite to the extent necessary here, in order to imply cross remainders of that description; but his Honour thought that the principle had been carried so far, that cross remainders must be implied. His Honour then reviewed at some length the history of the doctrine, which was at first confined to those cases, where the gift was to a class, with a gift over in default of children or issue, as the case might be. Lord Eldon, in Green v. Stephens (17 Ves. 64, 74) considered it a step considerably in advance, when there being, not a class, but persons designated by name, as in the present case, with definite shares conferred on them by the testator, the doctrine of implied gift by way of cross remainders had nevertheless been applied to the prejudice of the heir-at-law and next of kin, and not for the purpose of furthering the intention, that the whole fund should go to the class, but so as to add to the definite shares assigned by the testator himself. Daniel, Q.C., and Faber, for the petitioners on the That, however, had become thoroughly established as first petition, contended for an intestacy, Turner v. Frederick, 5 Sim. 466 ; 2 Jarm. on Wills, 528 (3rd ed.) law. The old illogical doctrine, that there could not be implied cross remainders between more than two, and the doctrine of Clache's Case (Dyer. 330 b), that Bagshawe, for the administrator of the testator's where there are express cross remainders in one part of heiress at law, followed on the same side. Southgate, Q.C., and Dickinson, for the petitioners on the cross petition, cited, in favour of implying cross limitations, the limitation, you cannot imply them in another part, had been successively overruled. Clache's Case at any rate, if not overruled, was considered to have been very much shaken by Vanderplank v. King. The doctrine itself was nowhere more clearly laid down than by Wigram, V.-C., in Vanderplank v. King (3 Hare, 1, 18). The general principle was stated in much the same way by Turner, L.J., in Atkinson v. Barton (loc. cit.): and the judgment of the House of Lords went upon exactly the same doctrine, though their Lordships differed from the Lords Justices as to the application of the doctrine to that particular will, and therefore overruled their decision. The difficulty which arose in the present case and made it different from other cases was this :-You had correspond with the gift over, and fill up the whole vacancy. Minute. Declare that, according to the true construction of the testator's will, and in the events which have happened, the part or share of Hannah Clark, upon her decease without having had any issue, became divisible in equal third parts, and that C. C. Rutherford, the only child of Margaret Clark, afterwards Margaret Rutherford, deceased, is entitled to one of such third parts, and that Elizabeth Wakefield, formerly Elizabeth Clark, is entitled to one other such third part for her life, with remainder to her children in the same manner, and subject to the same power of appointment as was directed and contained in the will of the said testator in respect of the original one-sixth share of the said Elizabeth Wakefield, then Clark, and that the remaining one third part is divisible in equal shares between M. Russell and C. Russell, the only children of Martha Russell, formerly Martha Clark, in the manner in the testator's will directed. NEEDHAM v. OXLEY. here a limitation to children vested at least on attaining twenty-one; whether vested or not on birth it was not material to consider. One of these legatees for life might have had a child, in whom, on attaining twenty-one, a share would vest, and who might have predeceased his parent, in which case the share would remain vested, and not be divested, except in the event of all the legatees for life dying without leaving children. It had been argued that to imply cross remainders would in such an event, which was a very possible one, have the effect of defeating a vested interest without clear words for that purpose, contrary to the well-known rule of law. It was answered that that Wood, V.-C. was not the case which had arisen. Now his Honour 24 JUNE, 1863. quite agreed that one could not construe a testator's Practice - Patent Injunction Damages will, so as to vary the construction of it, by the light Destruction of Machines-Certificate-5 & 6 of the events afterwards occurring; but the Court had simply to fill up the gap which occurred, and, Will. 4, c. 83, s. 3-21 & 22 Vict. c. 27. as the whole estate passed over only in the event In a suit to restrain infringement of a patent the pointed out, to insert such a course of limitations by Court refused under the circumstances to order the implication as would fill up the space so left undestruction of the defendant's machines which had been occupied and there was no necessity to impute any-found to be an infringement of the plaintiffs' patent. thing which could defeat an estate already given. The desired object might be attained by carrying over the shares only of those tenants for life who might die without ever having had any child to take at all, which was Hannah's case: whereas if any of the tenants for life died having had a child who attained twenty-one and predeceased his parent, that share would not go over, but remain to the personal representatives of the child, liable only to be divested in event of all the tenants for life dying without leaving children. The only apparent absurdity of this construction was this, that if one tenant for life left children, and two died having had such predeceased children, a share in the fourth original share, which might be situated as Hannah's was, would go to the executors or administrators of the predeceased children; whereas, if all the tenants for life died without leaving issue, the whole would go over. It certainly was a singular result; but the whole limitation was peculiar, and that was all you could say. His construction supplied, by implication, exactly the same character of limitations as was limited by the previous gifts; and that was the whole doctrine of implication with reference to gifts over of this description. You applied to the first takers such a series of limitations as would make them An inquiry as to the damages sustained by the plaintiffs by the infringement of his patent by the defendant was likewise refused, an issue as to the damages not having been submitted to the jury, which had already in the same suit tried the validity of the plaintiffs' patent. The Court granted a certificate in accordance with the 5 & 6 Will. 4, c. 83, s. 3, that the validity of the patent had come in question in the suit, and had been determined in favour of the plaintiffs : Semble, it is not necessary to certify for a special jury where questions of fact are tried before the Court itself under the 21 & 22 Vict. c. 27. The plaintiffs, who were the patentees of an invention entitled, "Improvements in Machinery and Apparatus for expressing liquid or moisture from substances," filed their bill for an injunction to restrain the defen dant from manufacturing or selling machines made in imitation of the plaintiffs' patented machine, and from in any way infringing the plaintiffs' patent. Their bill also asked for an account of the profits made by the defendant by selling such machines. The validity of the patent and the fact of the machines made by the defendant being an infringement of the plaintiffs' patent, were established by the verdict of a special jury summoned before the 5 & 6 Will. 4, c. 83, s. 3) of the validity of the patent having been decided by a jury. Court itself. The suit now came on, on motion for decree. Bagshawe, for the plaintiffs, asked that the defendant might be ordered to make an affidavit, stating what and how many machines he had now in his possession or power, which he had made, and which had been found by the jury to be an infringement of the plaintiffs' patent, and also that all such machines might be delivered up and destroyed. He offered to pay the defendant the value of the materials of such machines, Emperor of Austria v. Day, 2 Gif. 628; 3 De G. F. & J. 217. Giffard, Q. C., and Langworthy, for the defendant, submitted, that, as the plaintiffs' patent was for a combination, the defendant's machines ought not to be destroyed, as the different parts of which they were composed were not in themselves infringements of the patent, and would be of use to the defendant. WOOD, V.-C., was of opinion that the machines made by the defendant should not be destroyed; but that all the machines which were found to be infringements of the plaintiffs' patent should be marked or branded in some way, in order to identify them, if sold by the defendant. The defendant should make the affidavit required within seven days. Bagshawe asked for an inquiry as to the amount of damage which the plaintiffs had incurred by reason of the defendant's conduct. Giffard, Q. C., objected to damages being now given, as the plaintiffs ought to have had them assessed by the jury, which had already disposed of the other questions of fact in the case. No inquiry ought now to be directed, as the question had not been raised before the jury. WOOD, V.-C., said, that, in a case like the present, he would not give damages, without such damages being assessed by a jury. The plaintiffs had neglected to have that done at the proper time. They might, however, have an account of the profits made by the defendant by the sale of his machines. His Honour also thought that it was not necessary to certify for a special jury, when questions of fact were tried before the Court itself, under the 21 & 22 Vict. c. 27. Bagshawe then asked for a certificate (under the - Sargood now appeared in support of a petition to annul the bankruptcy on the following grounds a resolution had been passed at a meeting of the bankrupt's creditors, held a few days after the adjudication, by which resolution it was agreed by those present that a composition of 9s. in the pound should be accepted1s. 6d. of which composition was to be paid in cash, the remainder in bills at four, eight, and twelve months date-and that the bankruptcy should be superseded. The petition was supported by an affi davit, stating, that this arrangement was agreed to by all the creditors, and was made on the express understanding that the bankruptcy should be annulled before advertisement. The petitioning creditors were the only creditors who had proved. J. G. Lewis, solicitor, for the bankrupt, consented. HIS HONOUR said, that here the creditors having taken proceedings in bankruptcy against the debtor, had come to some secret arrangement with him afterwards, and now sought, in pursuance of such arrangement, to which their affidavit stated that they all that if he granted this application, much mischief assented, to annul the bankruptcy. He was of opinion, after choice of assignees, to obtain the written assent might follow. Under the old Act, it was necessary, of all the creditors who had proved; and the 110th section of the Act of 1861, pointed out the course by which proceedings in bankruptcy might be stayed. The petitioners had taken quite a different course from this, and a perfectly novel one; and he was therefore bound to refuse the application. Q. B. 24 JUNE, 1863. COMMON LAW. } Contract-Exoneration from further performance by breach of other contracting party. To a declaration on a contract by which the defendant agreed to purchase as many of the plaintiffs' coals of a certain quality as one steam vessel could fetch in nine months, proceeding in the course mentioned in the contract, and averring that the plaintiffs had always been ready and willing to deliver the said coals, but that the defendant had made default in sending a vessel to fetch divers cargoes of the said coals, and refused to send any vessel for the said coals, or to accept any more of them, the defendant pleaded, JONASSOHN and Others v. YOUNG. 1st. That, before any breach by the defendant, the plaintiffs broke their contract by knowingly delivering coal of a much inferior quality to that required by the contract, wherefore the defendant refused to accept any more of the said coals. 2nd. That, before any breach by the defendant, the plaintiffs detained the defendant's vessel on divers occasions an undue and unreasonable time after they had notice that she was ready to load the said coals :Held, on demurrer, that both these pleas were bud. DECLARATION. - That it was agreed between the plaintiffs and the defendant that the plaintiffs should sell and deliver to the defendant, and that the defendant would purchase of the plaintiffs, as many of the plaintiffs' Nettleworth gas coals, equal in quality to a certain cargo of them before then shipped on trial, as one steam vessel could fetch in nine months, proceeding to Sunderland, and after loading the cargo proceeding with it from thence to London, and after discharging the cargo at London, proceeding back again to Sunderland for another cargo, and thence back again with the cargo to London aforesaid, and so on until the expiration of the said nine months; and the steam vessel to be sent by the defendant for the said coals, and the plaintiffs to ship them on board of it at Sunderland at and for a certain price,—to wit, five shillings and nine pence per ton,-to be paid by the defendant to the plaintiffs at the beginning of each month for the preceding month's supply, less two pounds ten shillings per centum discount, and the plaintiffs have always been ready and willing to sell and deliver to the defendant, and ship the said coals on the terms aforesaid, and all conditions precedent have been performed necessary to entitle the plaintiffs to have the said agreement performed by the defendant on his part in respect of the matters hereafter alleged not to have been per formed by him; yet the defendant neglected, and refused to send, and made default in sending a steam vessel as aforesaid, to Sunderland aforesaid, to fetch divers cargoes of the said coals, and would not fetch, or accept, or receive, such cargoes, or the quantities of the said coals, which he ought, according to the said agreement, to have fetched and accepted; and the defendant, before the expiration of the said nine months, wholly and absolutely refused to send any other steam vessel for the said coals, or to accept any more of the said coals; and declared to the plaintiffs that he would not perform any more the said agreement, and exonerated and discharged the plaintiffs and by reason of the premises the plaintiffs have been from any further performance thereof on their part; much injured. of the said agreement, the plaintiff's broke their said 3rd Plea.—That, before any breach by the defendant in pretended fulfilment thereof, which was no part contract, by delivering and shipping to the defendant, thereof, gas coal equal in quality to the said cargo so shipped on trial as aforesaid, but was very inferior thereto, and wholly unfit for the defendant's purposes, as the plaintiff's well knew, whereupon and wherefore the defendant immediately upon discovering the plaintiffs said default, and within a reasonable time in that behalf, refused to accept any more of the said coal, as he lawfully might, for the cause in this plea aforesaid, which is the breach complained of in the first count. 4th Plea. That, before any breach by the defendant of the said agreement the plaintiffs broke their said contract, to wit, by detaining the defendant's said vessel an undue and unreasonable length of time, and far beyond the time permitted by the said contract, and contrary to the defendant's will, upon divers occasions, upon which the defendant had sent the same to the plaintiffs to be loaded with coal under the said agreement, and by not loading the said vessel with coal as aforesaid on any or either of the said occasions, urti after the lapse of a long and unreasonable space of time after they had notice that such vessel was ready to receive coal as aforesaid, and thereby greatly injured and damnified the defendant, whereupon and wherefore he immediately, upon notice of the plaintiff's said default, refused to fetch or receive any more of the said coal, as he lawfully might, for the cause in this plea aforesaid, which is the breach complained of by the said first count. Demurrer to these pleas, and joinder in demurrer. Hannen (with him Bidder), for the plaintiffs. pleas, do not justify the defendant in repudiating the whole contract, and refusing to perform his part of it; but are merely subjects for a cross action : Weaver v. Sessions, 6 Taunt. 155; Franklin v. Miller, 4 Ad. & El. 605. The case of Withers v. Reynolds, 2 B. & Ad. 882, is distinguishable. In that case there was not merely a breach of contract by non-payment for one load, but an absolute refusal to pay for any. So, too, in the case of Hoare v. Rennie, 5 H. & N. 19, which may be relied on by the other side, there was an averment of the absence of readiness and willingness; and the case was decided on the ground that the plaintiff was not ready and willing to perform his contract at all; but there is no such averment here. Keane, for the defendant. I rely on the decision in Hoare v. Rennie. [CROMPTON, J.-Would it not be the effect of this plea, that if any portion, however small, of what was supplied by the plaintiffs, was not according to contract, that the contract would be at an end?] Yes; but the plea avers that the plaintiffs knowingly supplied coal which was not according to contract; and they have no right to do that to any extent, however small. [CROMPTON, J.-It cannot be said that either of these breaches by the plaintiffs goes to the root of the consideration, so as to discharge the defendant from the performance of his part of the contract.] PER CURIAM (Wightman, Crompton, and Blackburn, JJ.).— Q. B. 24 JUNE, 1863. { Judgment for the plaintiffs. NATIONAL ASSURANCE ASSOCIA- Promissory Note-Varying Terms of, by Agreement-Pledge-Re-delivery of Securities on satisfaction of Debt-Condition precedent. Declaration on a promissory note. Plea.-That the note was given with certain wine warrants as security for the repayment of a loan, and that it was expressly agreed that, on repayment of the moneys due, the wine-warrants should be re-delivered to the defendant. Averment.-That the defendant was always ready to repay, and offered to repay the moneys due on redelivery of the said warrants; but that the plaintiffs had always refused to re-deliver the same :Held, on demurrer, a bad plea. Declaration on a promissory note made by the defendant, and delivered by him to one Peter Morrison, who endorsed the same to the plaintiffs. Plea. That the defendant made the said note, and delivered the same to the said Peter Morrison, as manager of the said association, on an advance by him as such manager, and then deposited with the said Peter Morrison as such manager the said promissory note, together with certain wine-warrants, as securities for the repayment of the said advance, and that it was expressly agreed that the said wine-warrants should be re-delivered to the defendant by the said Peter Morrison, on repayment of the moneys due in respect of such advance. Averment. That the defendant had always been ready to repay, and offered to repay, the moneys due in respect of the said advance on re-delivery to the defendant of the said wine-warrants; but that the plaintiffs had always refused to re-deliver the same. Replication.-Setting out the note in terms. Rejoinder. That the defendant delivered the note to the said Peter Morrison, and that he received it as agent for the National Assurance Association. There were demurrers to the replication and the rejoinder. Hannen, for the plaintiffs.-The real question is, whether the plea is a good one. I say that it is bad, 1st. Because the agreement set up by it does not purport to limit the defendant's liability on the note. It cannot be read as setting up a failure of consideration, for it admits that there was consideration; and the engagement which it sets up is merely the legal obligation which would lie on any one who has received securities to deliver them up on the debt being satisfied. But the neglect to perform this obligation would not discharge the debt, and the plea does not allege that the re-delivery of the wine-warrants was made a condition to the payment of the note, Moseley v. Hanford, 10 B. & C. 729; 2nd. If the plea is to be read as limiting the defendant's liability on the note, it is bad as seeking to vary a written instrument. The plea does not aver that the agreement was in writing, and although it is stated in Byles on Bills, 91 (8th ed.), that this is unnecessary, the cases there cited do not bear out the proposition laid down, and the case of Adams v. Wordley, 1 M. & W. 374, which is to the contrary effect, is not referred to. Joyce, for the defendant, contended that the payment by the defendant and the re-delivery of the warrants by the plaintiffs were to be concurrent acts, and that, by the agreement, the one was made conditional on the other. WIGHTMAN, J.-It seems to me that the two agreements are quite independent of each other, and, if so, the non-performance of the one is no answer to an action on the other. The agreement is thus stated [reads the plea], and it seems to me that on the one side there was an obligation to pay by the terms of the promissory note, and on the other, upon the receipt of the money, to re-deliver the wine-warrants, and it may be that they are to be considered as concurrent acts; |