Mr. Treslove, Mr. Koe, and Mr. Hallett, for the plaintiffs. The Solicitor-General and Mr. Blunt, for the defendants, the executors of Fairlie. Mr. Wakefield, and Mr. Purvis, for Mrs. Bacon the widow. Mr. W. Robertson, for the trustees, Henry Slade and John Slade (now Sir John Slade). BACON V. CLARK. THE MARQUESS OF EXETER 2. THE MARCHIONESS 1837. Dec, 22. 1838. Jan. 31. June 22. Lord (3 My. & Cr. 321-326; S. C. 7 L. J. (N. S.) Ch. 240; 2 Jur. 535.) The Court being satisfied, upon the evidence, that a general description of property had been inserted inadvertently in a settlement, and not for the purpose of passing an estate, which the general description would in COTTENHAM, terms comprise, made a declaration that the general description had been inserted by mistake, so far as regarded the estate in question, and gave the parties liberty to apply as they might be advised. UPON the treaty of marriage between the plaintiff and the defendant, the Marchioness of Exeter, then Isabella Poyntz, daughter of W. S. Poyntz, Esq., written proposals for a settlement were, by the plaintiff's directions, drawn up by his solicitors, Messrs. Foulkes, Langford, and Walford, and by them submitted to the solicitors employed on behalf of Miss Poyntz, Messrs. Forster, Frere, and Cook, by whom, after some alterations, they were finally agreed to and adopted. The proposals stated that Lord Exeter would convey a portion of his estates, to be thereafter agreed on, to trustees, in the first place, for securing an annual sum of 350l., for pin money for Miss Poyntz, during the joint lives of herself and Lord Exeter, and subject thereto, to the use of his Lordship for life; and after his decease, for securing a jointure of 4,000l. a year to Miss Poyntz, if she survived him, to be reduced however to 3,000l. a year in the event of her becoming entitled in possession to one third of her mother's estates; and, subject to this jointure, to trustees, in the usual manner, for raising sums, not exceeding 20,0001. in the whole, as portions for younger children; with (1) White v. White (1872) L. R. 15 Eq. 247, 42 L. J. Ch. 288, 27 L. T. 752. L.C. [321] [322] THE MARQUESS OF v. THE MAR CHIONESS OF [323] remainders to the use of the first and other sons of the marriage, and their issue male, and on failure of such issue, to the use of Lord Exeter, his heirs and assigns. A list of the names and rentals of the several estates intended to be comprised in the settlement, and the total rental of which was stated at the sum of 20,9341., was subsequently laid before Messrs. Forster, Frere, and Cook, on behalf of Miss Poyntz, for their approbation; and, after some slight variations, was finally agreed to. In this list the estates were arranged alphabetically under the counties in which they were respectively situate the only Lincolnshire estates specified in it were Bourne, Bourne Fen Lands and Morton, of which the rentals were stated at 1,528/. 12s., 2791. 4s., and 2751. 13s. respectively. Shortly afterwards, an indenture of settlement was executed, dated the 8th of May, 1824, by which the estates therein specified and described were conveyed by Lord Exeter to uses and upon trusts similar to those stated in the proposals. In the deed. after a particular enumeration and description, by their parcels and occupying tenants, of the several estates therein comprised, situate in the counties of Northampton, Bedford, Buckingham, *and Lincoln, which estates corresponded exactly with those enumerated in the list before mentioned, came these words. "and all other the manors, messuages, lands, tenements, hereditaments, and premises of the said Marquess of Exeter, within the said counties of Northampton, Bedford, Buckingham, and Lincoln." The marriage of the plaintiff and Miss Poyntz was solemnised a few days after the execution of the settlement, and there were issue of the marriage four children. Besides, the Lincolnshire estates enumerated in the list, and specifically mentioned and described in the settlement, the plaintiff, at the time when he executed it, was also seised in fee simple of another estate in the county of Lincoln, within the borough of Stamford, commonly called the Stamford estate. extending over several parishes within the borough of Stamford. and yielding a rental of nearly 5,000l. a year. Doubts having arisen, whether, by force of the general words before stated, the Stamford estate was not, by legal construction, THE MARQUESS OF EXETER t. THE MAR comprised in the indenture, so as to pass by the conveyance and be subject to the uses of the settlement, the present bill was filed to have it declared that the estate in question was not intended. to be so comprised, and ought to be released from the trusts CHIONESS OF thereof, and that the general words had been inserted by mistake; and to have the mistake rectified. Samuel Forster (one of the partners in the house of Forster, Frere, and Cook) identified a paper writing, marked B, as being the list of the estates which were proposed and intended to be settled by the plaintiff, and which were agreed to by all parties as the estates to be comprised in the settlement. He further deposed that it was his firm conviction and belief, that the plaintiff did *not intend that any other estate besides those enumerated in the list should be included in the parcels contained in the settlement; and that it was never proposed, either by or to him (the deponent) as the acting solicitor of the lady, that any other estates besides those named in the produced list should be settled by the plaintiff on the occasion of his marriage: that no instructions were ever given by the plaintiff to the deponent, or, to the best of his knowledge, to any other person, that the general words in question should be inserted in the settlement; and that he could only, therefore, account for their insertion by supposing that they had been introduced inadvertently, or merely for the purpose of including any of the lands specified in the list, which might possibly have been omitted in the description given of them in the parcels. It appeared upon an inspection of the document marked B, that the estates specified in it were the same as those described in the settlement, exclusive of the general words which were used in the settlement, and, of course, exclusive of the Stamford estate. It was proved, by the evidence of Mr. Walford the younger, a partner in the house of Walford & Sons, who were the successors in business of Messrs. Foulkes, Langford, and Walford, that he had found, tied up with the proposals and the other papers relating to the settlement, a list of the estates proposed to be settled, and that on comparing the parcels contained in the settlement, they fully and accurately described the parishes and townships within which the estates named in the list were situate, together with EXETER. [ *324] THE MARQUESS OF THE MAR EXETER. the names of the occupying tenants, and that they did not mention or include any other lands beyond those specified in such list, except by the general words. The same witness farther CHIONESS OF deposed that the Stamford estate *was, in point of rental, double the value of any of the estates mentioned and enumerated in the settlement, and that the number of tenants upon it amounted to 380; that it was not in any manner comprised or included in the list; and that neither the estate nor any of the townships or parishes within which it was situate, nor any of the occupying tenants thereof, were mentioned by name in the settlement. [ *325 ] [ 326 ] Sir C. Wetherell and Mr. Jemmett, in support of the bill, submitted first, that from the instruments on which the settlement was based, namely, the proposals and list, it was obvious that the Stamford estate was never meant to be included in it; secondly, that the evidence with respect to the object and intention of the parties was such as to be clearly admissible; and thirdly, that that evidence, if admitted, placed beyond a doubt the existence and nature of the mistake, which the Court, as it had the means, so it had also the jurisdiction to rectify. They referred to Rogers v. Earl (1), Thomas v. Daris (2), Young v. Young (3), Alexander v. Crosbie (4), The Duke of Bedford v. The Marquess of Abercorn (5). * * Mr. Sidebottom, for some of the parties, did not deny the jurisdiction of the Court; but he observed that the list which was proved in the cause, came out of the hands of the Marchioness's solicitor, and the evidence did not distinctly connect it either with the proposal, or with any thing in the way of contract between the parties. Mr. Barber and Mr. F. Walford appeared for other parties. The LORD CHANCELLOR, after remarking that there could be no question as to the jurisdiction, said that although he saw no difficulty in the case, he should look into the documentary evidence and the depositions before making a decree. (1) 1 Dick. 294. (2) 1 Dick. 301. (3) Cited in 1 Dick. 295 and 303, (4) 1 Ll. & G. 145. (5) 43 R. R. 200 (1 My. & Cr. 312). THE LORD CHANCELLOR : I have looked through the pleadings in this cause, and the papers and the three exhibits, 1st, the proposal for a settlement, 2ndly, the list or particular of the estates proposed to be settled, and 3rdly, the settlement itself; and I am of opinion that the evidence (the two former documents being distinctly identified), brings the case within the principle upon which this Court exercises its jurisdiction of correcting mistakes in settlements. It is, I think, clear that what is called the Stamford estate in Lincolnshire, no part of which is specified in the list, or described in the settlement, except under the words, "all other the manors, lands," &c. of Lord Exeter "within the counties of Northampton, Bedford, Buckingham, and Lincoln," was not intended to be included in the settlement; and that it formed no part of the proposal or of the contract, but was so included. by mistake. I think, therefore, that the decree ought to declare that to be so, and direct a reconveyance of that estate (1). The decree, as drawn up, merely declared that the general words had been inserted by mistake, so far as regarded the Stamford estate, and gave the parties liberty to apply, as they might be advised. MILLINGTON v. FOX (2). THE v. 1838. June 22. 1838. March 16, 17, 23, 24. Lord The Court will grant a perpetual injunction against the use, by one tradesman, of the trade marks of another, although such marks have COTTENHAM, been so used in ignorance of their being any person's property, and under the belief that they were merely technical terms. As a general rule, the costs of the cause should follow the result of the cause; but an exception will be made where a party has established his object by means of an unnecessary degree of litigation. THE bill, which was filed on the 7th of August, 1834, stated that the plaintiffs, Crowley Millington and Thomas Isaac Millington, carried on, and had for many years carried on, (1) But whether a reconveyance was necessary, qu. ?-0. A. S. (2) Approved in H. L., Singer Machine Manufacturers V. Wilson (1877) 3 App. Cas. 376, 391, 396, 47 L. J. Ch. 481; Cellular Clothing Co. L.C. [ 338 ] |