consulting Mr. Heritage, or employing him at all as their solicitor in the matter; and they appear to have come to a resolution that they would make the loan, negotiating it, as commercial men, as a commercial loan, upon their own discretion. Then no doubt it may have been, and afterwards it was, part of the terms that there was to be a mortgage, and Mr. Heritage may have been employed as their solicitor —although it is not directly proved, we will assume that to draw up the mortgage deed. I cannot think that that is sufficient to affect the Marseilles Company with notice of any improper mode in which this money was to be expended, even if Mr. Heritage had, which I cannot see that there is any evidence of, notice that it was to be expended for an improper purpose.

The simple result appears to me to be that they, having power to borrow money for the purpose of the company, go to the Credit Foncier Company to lend them money for the purpose of the company, namely, to make payments to Mr. Bowles, with whom they have contracts and engagements. What Mr. Bowles wants it for is for the of taking up shares purpose which it is desirable should be taken up; but the purpose for which they borrow it, is to pay money which they owe to Mr. Bowles, that is for a legitimate purpose. I cannot see that there is anything to affect the Credit Foncier with notice that that was not the truth.

After all, the real question is, which of two innocent sets of shareholders is to bear this loss? It appears to me that if the directors of the Marseilles Company had been guilty of an improper application of the funds of the Marseilles Company, and that would seem to be the real origin of what has gone wrong, it would be more just that the shareholders of the Marseilles Company, who improperly applied this money, should bear the loss rather than the innocent shareholders of the Credit Foncier Company, who ap pear to have done what was a perfectly legitimate thing for them to do. It being a part of their business to lend money, they lend money to a company who have power to borrow it.

It

appears to me that this claim is made

out, and that the order of the Vice Chancellor should be reversed, and an order made allowing the claim with costs in the Court below.

LORD JUSTICE JAMES.-I am of the same opinion. I desire only to add this: I cannot understand how a director of a company going to borrow money from another company can put the company from whom he borrows it in any different position from that in which a joint stock company would be put by a director of it going and asking a loan for himself. Is it to be imputed to the company that they have knowledge of everything he knows about his own private affairs? It seems

to me monstrous to say that.

Leases and Sales of Settled Estates Act, 19 & 20 Vict. c. 120. ss. 17, 36, 37, 38, 39 - Consent of Infant Married Woman Tenant in Tail, how obtained.

When a sale of settled estates is authorised by the Court under the powers conferred by the Leases and Sales of Settled Estates Act, 1856, the consent of an infant married woman tenant in tail, must be obtained by her examination apart from her husband, and cannot be given by a guardian on her behalf.

This was an application made to the Lords Justices at the request of the Mas ter of the Rolls, and the question was whether, where a sale of real property to which an infant married woman was entitled as tenant in tail in possession had been authorised by the Court under the powers conferred on it by the Leases and Sales of Settled Estates Act, 1856 (19 & 20 Vict. c. 120), the purchaser could require the examination of the infant married woman apart from her husband, or whether consent given by a guardian on her behalf was sufficient.

Semble that even if it had been a mere cross bill, the plaintiff company being in liquidation must give security for costs.

Order of the MASTER OF THE ROLLS affirmed.

This was an appeal by the plaintiff company from an order of the Master of the Rolls, reported ante, p. 151.

The plaintiff company had by deed, dated the 16th of February, 1867, mortgaged their gas works, plant and other material at Moscow, to the defendant company for 400,000l., and subsequently went into liquidation. Thereupon the

defendant company, with the leave of the Court, in February, 1871, filed an ordinary bill for foreclosure against the plaintiff company. In October, 1871, the plaintiff company, likewise with the leave of the Court, filed what they called a cross bill to the foreclosure bill. By this bill they prayed for a declaration that, under the circumstances alleged therein, the indenture of mortgage was not binding on the plaintiff company or the bondholders or shareholders thereof; or in the alternative, in the event of the Court being of opinion that the mortgage was binding, that the amount secured by it might be reduced on several grounds, with liberty to redeem on payment of what should be found due on that footing. The bill also prayed for an injunction to restrain the defendant company from selling the gas works, plant and property of the plaintiff company, and for a receiver.

Thereupon the defendant company took out a summons that the plaintiff company being in liquidation should give security for costs.

The summons was heard before the Master of the Rolls on the 22nd of December, 1871, when his Lordship, having expressed his opinion that this bill was not a regular cross bill, and also his determination never to allow an insolvent company to take proceedings against their creditors without giving security for costs, ordered the plaintiffs to give security, and that not a mere 1001., but a substantial amount. From this order the plaintiff company appealed.

Mr. Fry and Mr. Montague Cookson, for the appellants, contended that this bill was a cross bill, pure and simple. It was filed merely in aid of their defence in the foreclosure suit. That being so, the authorities were clear that no security for costs would be required.

Macgregor v. Shaw, 2 De Gex & S. 360,

was an exactly similar suit to the present, and was in their favour, as were the cases of

and

Watteeu v. Billam, 3 De Gex & S. 516; s. c. 18 Law J. Rep. (N.S.) Chanc. 455;

Wilkinson v. Lewis, 3 Giff. 394;

and it was held in the case of

The Accidental and Marine Insurance

Company v. Mercati, Law Rep. 3
Eq. 200,

that section 69 of the Companies Act, 1862, made no alteration in the principle upon which the Court refused to allow a defendant in a cross suit to call upon the plaintiff in the cross suit to give security for costs.

Mr. C. Hall and Mr. Davey, for the respondents. This is not a bona fide application on behalf of the plaintiff company. The order to allow the suit to be instituted was obtained, not at the instance of the company, but of certain bondholders of the company, who are the real plaintiffs; it is, under the guise of a cross bill, in fact a bill of discovery in aid of another suit which it is intended to institute on behalf of the bondholders. Under these circumstances, our right to security for costs from the nominal plaintiffs is clear

sent.

Ball v. Ross, 1 Mac. & G. 445;
Mais v. Macnamara, 5 Exch. Rep.
267;

Washoe Mining Company v. Ferguson,

Law Rep. 2 Eq. 371.

The case of Macgregor v. Shaw (ubi supra) is not on all fours with the preThe bill there raised only matters of defence to the bill in the original suit ; it contained no offer to redeem, as this does.

Mr. M. Cookson, in reply.

LORD JUSTICE JAMES was of opinion that the case was governed by The Washoe Mining Company v. Ferguson (ubi supra). The bill was not a mere cross bill; but it was just the same case as if, after a bill had been filed for specific performance of an agreement, the defendant had filed another bill for the specific performance of the same agreement on a different construction of it. The second bill here was not a mere defence to the original suit, for it sought to redeem on quite different terms from those on which the plaintiffs asked to foreclose. It was substantially a bill going far beyond mere defence to the original suit, and therefore, on that ground alone, security for costs must be given. His Lordship was also disposed to agree with the Master of the Rolls that in every

Will-Parol Evidence-Construction of Legacy-Ambiguous Description of Legatee.

A legacy was given by a testatrix "to the treasurer for the time being of the fund for the relief of the widows and orphans of the clergy of the diocese of Worcester, to be applied by him for the benefit of that charity." There were two societies, one for the clergy and orphans of the archdeaconry of Worcester, the other for that of Coventry. They were both founded in 1777. Before 1837 the archdeaconry of Worcester constituted the whole diocese of Worcester and the former society had a name referring to the diocese of Worcester. In 1848 its name was changed so as to refer only to the archdeaconry of Worcester. Both societies claimed the legacy:-Held, overruling one of the Vice Chancellors, that the legacy was a gift to a society and not a trust for widows and orphans, and that parol evidence was admissible to determine which was entitled.

Held, further, that evidence, shewing that the testatrix's father and mother had for a large number of years been a subscriber to the Worcester society, and that the testatrix after the death of the survivor of them had continued the subscription until her own death, was decisive in favour of the claim of the Worcester society, there being no evidence that she or any member of her family had subscribed to the Coventry society.

This was an appeal from the decision of V.C. Malins, reported 40 Law J. Rep. (N.S.) Chanc. 703.

The facts and arguments are fully stated in the former report.

Mr. Cotton and Mr. C. Walker were for the appellants, the Worcester Society.

Mr. Glasse and Mr. V. Hawkins, for the Coventry Society.

Mr. Cotton and Mr. Warmington appeared for other parties.

The following cases, in addition to those cited below, were referred to—

Grant v. Grant, 39 Law J. Rep.
(N.S.) C.P. 272; s. c. Law Rep. 5
C.P. 727;

Mills v.
Reeve v. Attorney General, 3 Hare,
191;

Farmer, 1 Mer. 55;

Clark v. Taylor, 1 Drew. 642.

LORD JUSTICE JAMES.-I cannot entertain any doubt as to the meaning of the testatrix. The sole question is, do her words import a gift for the relief of the widows and orphans of the clergy of the whole diocese of Worcester? Now, first, are the words which occur in the will, "for the relief of the widows and orphans of the clergy of the diocese of Worcester," used to indicate the object of the bounty of the testatrix, or are they used as a means of describing the society to which she intended to give a legacy?

I am

clearly of opinion that they are merely part of the description of a society, and if that be so, all that we have to do is to find out who is the person who answers the description of the treasurer to whom the legacy is given? The treasurer of the Worcester Society gives parol evidence to shew that he is the person intended, just as if a gift was made to the son of A. B., a claimant would give parol evidence to shew that he was the son of A. B. Suppose there had been no other society with a similar object, would it not have been idle to doubt that the treasurer of the Worcester Society was the person intended? It would be just as idle as to contend that a gift to the Dean of Westminster was bad, because the true description is the Dean of the Collegiate Church of St. Peter at Westminster. A slight inaccuracy of description such as this can have no effect. Here we have a second society, which, perhaps, and I will assume it to be so, might, if it had existed alone,

have answered the description with sufficient certainty. Parol evidence then is admissible to shew which society was intended. Evidence has always in these cases been admitted to shew which of two societies the testator knew, and to which he subscribed. Such evidence is admissible to remove an ambiguity if there has indeed been sufficient ground laid to raise an ambiguity, and I am assuming in favour of the respondents that there is an ambiguity. The fund must, in my opinion, be paid to the treasurer of the Worcester Society.

LORD JUSTICE MELLISH.-I am of the same opinion. The language of the bequest shews that the testatrix had some particular society in her mind. The only question, then, is which is the society so intended? There is no difference in the course which ought properly to be adopted here and in any other case as to finding out who answers the description given in a will of a legatee. If there were no society answering the description sufficiently to enable it to claim the legacy it might be that the Court would carry the gift into effect as a gift for the relief of the widows and orphans of the clergy of the diocese. Here, however, I think the appellants are near enough to the description to be entitled to the legacy if there were no competing society. There is a description of the society by its old name, its name has been changed but its object remains precisely the same as before, and its old name is not wholly inapplicable to it. Then assuming the other society to come near enough to the description to give ground for claim, there is an ambiguity for removing which parol evidence is admissible, and the evidence which has been adduced is, as I think, decisive.

Solicitors-Messrs. Merediths, Roberts & Mills, for appellants; Messrs. Duncan & Murton, agents for Messrs. Woodcocks, Twist & Son, Coventry, for respondents.

Injunction-Secret Preparation not Patented-Right of making it-Use of Name of Original Inventor-Advertising as only genuine.

After the death of Lieutenant Robert James, the inventor of a blister ointment, known as Lieut. James's blister, the recipe for making which was a valuable trade secret but not patented, while his successors in title were carrying on the business of selling it, his nephew, R. J. James, who had discovered the recipe under circumstances which did not make it a breach of duty to avail himself of his discovery, made and sold the ointment under the name of the original inventor, signed with the signature R. James, and advertised his ointment as the only genuine.

Held, on bill filed against him by the successors of the original inventor, that he was entitled to make and sell the article as Lieut. James's blister, but not to do anything which was calculated to make the public think that he was the original inventor or the successor of the inventor, or to represent that his was the only genuine preparation.

Lieutenant Robert James discovered the secret of a chemical preparation, known as Lieut. James's Horse Blister: the recipe was kept secret but not patented, and the business of making it carried on for some years by the inventor and his brother, James James.

The benefit of the secret and the business was afterwards assigned to and carried on by the plaintiffs, R. S. James and James James.

During this time R. J. James, the son of James James, was occasionally employed by his father in the manufacture, and thus learnt the secret.

Lieutenant James, the original inventor, died in 1865, and after his death R. J. James, in conjunction with Mr. Vernon Southee, manufactured the article and sold it under the name of Lieutenant James's blister, in pots very similar in form and size to those used by the plaintiffs, with labels on the side of the pots containing directions for use, almost identical in NEW SERIES, 41.-CHANC.

terms with those of the plaintiff, and a label on the top of each pot with the trade mark of a horse's head; the words "Manufactured by Robert James, grandson of the inventor, and made by him for Lieut. James in his lifetime." 99 At the bottom of the label "Robert James," as the facsimile of the signature of the original inventor.

The label on the top of the plaintiffs' pots had not the trade mark, a horse's head, nor the signature "Robert James," but the signatures" R. S. James & J. James," and the words "signature of the proprietors, to counterfeit which is forgery.'

The defendants used the following advertisement

"Horses.-Lieut. James's blister, manufactured by Robert James, the grandson of the inventor, and made by him for Lieut. James for several years, and up to the time of his death in 1865, used in all the leading studs in Great Britain and on the continent, and after thirtysix years' general use universally admitted to be the best blister ever made. The public are cautioned against a spurious imitation of this blister. None is genuine without the trade mark, a horse's head, on the top of each pot, and the signature Robert James.' Wholesale agents: Butler & Crisp; Newberry, St. Paul's Churchyard; Bewley & Draper, Dublin; Lang & Barker, Edinburgh; Levy Brothers, Melbourne."

The plaintiffs now used the following advertisement, which they used also before the defendants began their manufacture

"Horses.-Lieut. James's blister, as used in Her Majesty's cavalry regiments, patronized by Major-General Sir Charles Dalbiac, inspector-general of the cavalry forces, and highly eulogised by Professor Coleman in his report to the AdjutantGeneral. Its great efficacy, in all cases where blistering is usually applied, is well known, and its celebrity has extended to all the great studs throughout the world. No horse will gnaw it. Sold by Messrs. Barclay & Sons, 95, Farringdon Street, London, and by all respectable medicine vendors. In pots, 1s. 6d., 2s. 9d., and 5s. each; lb. 9s., 1 lb. 16s. Caution-None is genuine without the signature of the 2 Z