covenants relating to the estates, and a power of revoking the deed and reassuming the property in the estates was reserved to G. upon the breach of certain of the said covenants by the defendant. The annual value of the estate at the death of G. was considerably in excess of the rent-charge reserved.

Held, that a sufficient interest and a sufficient power of revocation were reserved in the property so as to bring it within the description of property contained in the Customs and Inland Revenue Act, 1881, s. 38 (2) (c), and that, on the death of G., in October, 1894, the whole of the property became chargeable with estate duty under the Finance Act, 1894, s. 1.

Information.

By a deed dated the 19th of October, 1885, Henry, third Earl Grey (since deceased), transferred to his nephew, Albert Grey, now fourth earl, his estates in Northamptonshire, including the mansion house of Howick and its appurtenances and the effects therein, subject to an annual rent-charge of £4,000 in favour of the third earl, issuing out of all the property transferred other than the mansion house and its appurtenances and the effects therein. The deed provided that the mansion house, &c., should be held by the fourth earl in trust to permit the third earl to occupy and enjoy the same as theretofore. By the same deed the fourth earl covenanted (1) to pay certain annuities; (2) to pay the mortgages and other charges on the land and all interest then or thereafter due under them; (3) to pay the rentcharge of £4,000; (4) to keep up the mansion house; (5) to deliver farm or garden produce required for the use of the household at Howick; (6) to pay the funeral expenses, debts, &c., of the third earl; (7) not to sell or dispose of certain of the lands; and (8) at the request of the third earl to produce receipts and vouchers for payments made under clauses (1), (2), (4), or (6). It was also provided that in the event of Albert Grey, now fourth earl, dying in the lifetime of the third earl, or of any breach by the fourth earl of any covenant on his part, that it should be lawful for the third earl to revoke the deed either wholly or in part.

By a deed dated the 26th of September, 1894, the third earl, in consideration of £5,000, released the rent-charge of £4,000, and also released the fourth earl from the covenant to retain unsold the lands named in the 7th clause of the covenant in the deed of 1885, as well as from the power of revocation

reserved in the same deed.

The third earl died on the 9th of October, 1894. The average net income of the property comprised in the deed of the 19th of October, 1885, was before, as well after, the 26th of September, 1894, very considerably in excess of £4,000.

The fourth earl paid estate duty upon the value of the mansion house of Howick and the effects therein only.

The information claimed that estate duty was payable upon the value of the whole of the property comprised in the deed of the 19th of October, 1885, as property passing on the death of the third Earl Grey within the meaning of sections 1 and 2 (1) (c) of the Finance Act, 1894, and having regard to section 38 of the Customs and Inland Revenue Act, 1881, as amended by section 11 of the Customs and Inland Revenue Act, 1889.

Section 2 (1) (2) of the Finance Act, 1894, provides that property passing on the death of the deceased, which is by section I declared to be chargeable with a graduated estate duty, shall be deemed to include property which would be required on the death of the deceased to be included in an account under section 38 of the Customs and Inland Revenue Act,

HIGH COURT.

1889, if those sections were herein enacted and extended to real property as well as to personal property, and the words "voluntary" and "voluntarily" and a reference to a "volunteer" were omitted therefrom.

Section 38 of the Customs and Inland Revenue Act, 1881, provides (inter alia): "(1) Stamp duties at the like rates as are by this Act charged on affidavits and inventories shall be charged and paid on accounts delivered of the personal or moveable property to be included therein according to the value thereof; (2) The personal or moveable property to be included in an account shall be property of the following descriptions-viz., (a) Any property taken as a donatio mortis causâ made by any person dying on or after the 1st of June, 1881, or taken under a voluntary disposition, made by any person so dying, purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, or otherwise which shall not have been bond fide made three months before the death of the deceased. "(c) Any property passing under any past or future voluntary settlement made by any person dying on or after such day by deed or any other instrument not taking effect as a will, whereby an interest in such property for life or any other period determinable by reference to death is reserved either expressly or by implication to the settlor, or whereby the settlor may have reserved to himself the right, by the exercise of any power, to restore to himself, or to reclaim the absolute interest in such property."

Section 11 of the Customs and Inland Revenue Act, 1889, amends section 38 as follows: "The description of property marked (a) shall be read as if the word 'twelve' were substituted for the word 'three' therein, and the said description of property shall include property taken under any gift, whenever made, of which property bond fide possession and enjoyment shall not have been assumed by the donee immediately upon the gift and thenceforward retained, to the entire exclusion of the donor, or of any benefit to him by contract or otherwise."

Sir Richard Webster, A.G. (Sir Robert Finlay, S.G., able with estate duty because (1) bona fide possession and Danckwerts with him).-This property is chargeof it was not assumed by the fourth Earl Grey to the entire exclusion of the third earl; (2) there was an express reservation of an interest to the third earl; (3) an express power of revocation was reserved Attorney-General v. Worrall, 43 W. R. 118, [1895] 1 Q. B. 99. The deed of the 26th of September, 1894, deed of 1885. too late in any case, could not alter the effect of the

Cozens-Hardy, Q.C., and Bremner, for the respondent.-Reservation of an interest does not render the whole of the property chargeable, but only renders it chargeable to the extent of the interest reserved. The scheme of the Acts was to impose duty on the actual benefit which accrued on the death of the

deceased. This was in the present case £4,000 a year. The power of revocation was a limited one and not of the sort contemplated by section 38, which was a general power.

GRANTHAM, J. (whose judgment proceeded upon the terms of the deed), was of opinion that the property was not handed over to the present Earl Grey

to the entire exclusion of the late earl and without reservation, and he was also of opinion that a power of revocation was reserved within the meaning of section 38 (2) (c) of the Act of 1881.

I thought it was applicable to the particular case. It seems to me it is not. I think that you may probably separate the property where it is all given in one gift. Mr. Cozens-Hardy says that the fair reading of section 38 (2) (c) is that it applies to the extent to which a benefit is reserved. I am inclined

to think that that is right so far as it means, to the extent of the property in which a benefit is reserved. Accordingly, taking Mr. Bremner's case of the twenty houses and an interest reserved in one, I should be inclined to think-it is not this case, and therefore I do not formally adjudicate upon it-I say, I should be inclined to think that in that case it would only be the one house upon which the duty would be payable; but it seems to me here that there is an interest reserved in the entirety of the property, and certainly there is a power of revocation reserved as to the entirety of the property, and although the power of revocation is conditional upon certain events happening, it is not the less a power of revocation within the meaning of the express words of the statute.

The point that Mr. Cozens-Hardy and Mr. Bremner made depends really upon the construction of section 38 (2) (c) of the Act of 1881. It says, "any property passing," and so on, "whereby an interest in such property" is reserved, and I think that that would be divisible. It would not be enough to have an interest in some part of the property. The words are "in such property," and I do not think it ought to be read as an interest in some part of the property.

Here the £4,000 was clearly reserved in the whole of the property, and certainly the power of revocation was. On these grounds it seems to me that the arguments of the learned counsel for the respondent are probably correct, but that they do not apply to the facts of the present case.

Solicitors, Solicitor for Inland Revenue; Flux & Leadbitter.

"THE CHIOGGIA.” (a.) Ship-Bottomry-Necessaries-Bond on ship, freight, and cargo paid out of proceeds of ship and freight in priority to necessaries.

The master of an Italian vessel obtained in 1896 at an English port necessaries for the ship, and in 1897, being in distress for want of funds at a British Colonial port, there executed a valid bottomry bond on ship, freight, and cargo, binding himself personally by the bond. The vessel arrived in safety at her port of destination in England, but the bond not being paid, the assignees thereof instituted an action of-bottomry against the vessel, her freight, and cargo, and an action of necessaries was on the same day instituted by the suppliers of the necessaries against the vessel and her freight in respect of the necessaries supplied as above mentioned. The proceeds of the ship and freight were insufficient to pay the wages of the crew, the master's wages, the bondholder's claim, and the claims in respect of necessaries.

Held, that, after payment of the sums due for the wages of the crew and master, the bondholder had a right to exhaust the proceeds of the ship and freight in paying his claim in priority to the claims of the suppliers of the necessaries, and that the latter could not require the ship, freight, and cargo to be marshalled for their benefit.

(a.) Reported by C. F. JEMMETT, Esq., Barrister

at-Law.

HIGH COURT.

This was a question of priorities. During the months of January and April, 1896, the Goole Ropery and Ship Chandlery Co. (Limited) and Messrs. Leathanor, Pew, & Co., by the order of the master of the Italian barque Chioggia, supplied necessaries to that vessel when she was lying in the port of Goole to the amount of £245 178. 7d. Subsequently The Chioggia, being on a voyage from Demerara to Liverpool, was compelled to put in distress into the port of St. George, Bermuda, and her master on the 9th of April, 1897, being without funds or credit, after communication with his owners and the owners of the cargo, borrowed at Hamilton, Bermuda, on bottomry of ship, freight, and cargo, the sum of £1,581 12s. 6d., at a maritime premium of 20 per cent., binding himself, his executors and administrators, for payment of the bond.

On the 1st of June, 1897, The Chioggia, having safely arrived at Liverpool and the bond not having been paid in due course, a bottomry action was instituted on behalf of the assignees of the bond-the Association for the Preservation of Commercial Interests as respects Wrecked and Damaged Property -the London Salvage Association-and Charles Augustus Crafer against The Chioggia, her freight and cargo, claiming the sum of £2,200 as the amount due to them under the bottomry bond and for costs. In this action the ship and a portion of her cargo were arrested and an undertaking was given by the owners of the cargo not arrested, who had appeared as defendants, to bring the freight into court and to pay such amount as they should be liable for.

On the same 1st of June, 1897, an action of necessaries was instituted on behalf of the Goole Ropery and Ship Chandlery Co. (Limited) and Messrs. Leathanor, Pew, & Co. in respect of the supply of the above-mentioned necessaries against The Chioggia and her freight, and in this action the plaintiffs claimed judgment for the sum of £245 178. 7d. and costs.

On the 4th of June, 1897, it was ordered that certain amounts paid or to be paid by the owners of the cargo for pilotage, towage in docking, boatmen, reporting inwards, dock dues and light dues, and the cost of discharging, should be deducted from the freight before it was paid into court; and on the next day the balance of freight, less the costs of paying the same into court, amounting to £372 4s. 2d., was paid into court.

On the 15th of June, 1897, the solicitors for the bondholders delivered their statement of claim in the

bottomry action praying that the court would pronounce for the validity of the bond, and that the sum of £1,897 18. 9d. was still due on it; would condemn the defendants and The Chioggia and her freight in that amount with interest; and would also give the plaintiffs judgment against The Chioggia, her freight and her owners, for the sum of £106 88. 8d. being the amount due to the crew of the vessel for wages, and which amount the plaintiffs, the bottomry bondholders, had paid under an order of the court allowing them to stand in the shoes of the persons to whom such wages were originally due.

On the 24th of June the Goole Ropery and Chandlery Co. and Augustus Crafer intervened in the action of bottomry and subsequently delivered a defence in which they alleged that they had reason to believe that the proceeds of The Chioggia and her freight would be insufficient to satisfy the claims of the plaintiff and the interveners, and therefore, if the plaintiffs should obtain judgment pronouncing for the validity of the bottomry bond, the interveners would at the trial ask the court to marshall the assets-viz., ship, cargo, and freight-and to order

have a right to have the assets marshalled in their favour, as they have only the ship and freight to look to, whilst the bondholders have the security of ship, freight, and cargo. The value of the ship, freight, and cargo appears to me enough to meet all the claims and costs. The cargo-owners, in whose interests the case was argued by Mr. Balloch, contend, however, that the bondholders have a prior right to the proceeds of the ship and freight, as against the necessaries' men, and must exhaust these proceeds before coming on the cargo, and that if the assets are marshalled the effect will be to compel the cargo-owners to pay the claim of the necessaries' men, with which they have no concern. Several cases were cited by counsel, but they do not seem to have much bearing upon the present question.

It was not disputed that the claim of the bondholders has priority over that of the necessaries' men, nor that the cargo cannot be made subject to the payment of the bond until the proceeds of the ship and freight have been exhausted, but the contention of the necessaries' men, as above indicated, was that the bondholders, having two funds upon which they could claim-namely, the proceeds of the ship and freight on the one hand, and the cargo on the other, whilst the necessaries' men can only claim against the proceeds of the ship and freight, the latter ought, according to the doctrine of marshalling, to be paid out of the last-mentioned proceeds. But marshalling should not be permitted to the prejudice of third persons. According to equitable doctrines, in order to marshal, not only should there be two creditors of the same person, but one of them should have two funds belonging to the same person to which he can resort. In the present case the two funds belong to different persons- namely, the shipowners and cargo-owners respectively, and in my opinion the necessaries' men have no right of marshalling. They have no equity to have the claims adjusted so as to compel the cargo-owner in fact to provide the means of discharging the claim for

necessaries.

The case of The Edward Oliver, L. R. 1 A. & E. 379, 15 W. R. Adm. Dig. 27, which was principally relied on by the counsel for the necessaries' men, does not apply, although the effect of that decision was to compel the cargoowners to pay a balance which was greater by the exact sum paid to the master out of the proceeds of ship and freight. The master had a maritime lien upon those proceeds for the amount of his claim, and it was merely decided that the rule that a master who has bound himself, as well as the ship and freight, for the payment of a bottomry bond, is not entitled to payment of his own claim in priority to that of the bondholders, cannot be invoked by the cargo-owners, and will not be acted upon where the bondholder will not be prejudiced by the master being paid before him. The net proceeds in court£576 16s. 10d.-must, in my opinion, be paid out to the bondholders, and thereout they must be directed to repay themselves the said sum of £106 8s. 8d., and to pay to the master the said sum of £101, and to the Italian consul £10 1s. 8d. on proof to the registrar that these sums are due, and to apply the balance in discharge, pro tanto, of the amount due under their judgment on their bottomry claim.

Solicitors for the plaintiffs in the action of bottomry, Walton, Johnson, Bubb, & Whatton.

Solicitors for the defendants, owners of the cargo of The Chioggia, and for necessaries men intervening, Thomas Cooper & Co.

BADISCHE ANILIN UND SODA FABRIK v. BASLE CHEMICAL WORKS, BINDSCHEDLER. (a.)

Patent Infringement - Patent applicable to United Kingdom only-Infringing goods sent to England— Order from English purchaser.

A manufacturer of goods abroad which are an infringement of a patent applicable to the United Kingdom alone, who sends these goods by post to an English customer in compliance with his order to so send them, does not infringe the patent for the United Kingdom, for in such a case the sale and delivery take place outside this country.

Decision of the Court of Appeal (45 W. R. 481, [1897] 2 Ch. 322) affirmed.

This was an appeal by the plaintiffs in the action from an order of the Court of Appeal (Lindley and A. L. Smith, L.JJ.; Rigby, L.J., dissenting): 45 W. R. 481, [1897] 2 Ch. 322; reversing a decision of North, J.

The facts are set out in the report below, and shortly they are as follows:

The appellant company were the owners of a valid patent applicable only to the United Kingdom. The respondent Bindschedler, a Swiss subject, who traded under the name of the "Basle Chemical Works, Bindschedler," was a chemical manufacturer at Basle in Switzerland, and in compliance with orders given him by post by Johnson & Co., drysalters in London, sent to them by post through forwarding agents in Basle certain goods which infringed the appellants' patent.

The appellant company took proceedings to restrain the respondent and Johnson & Co. from infringing the patent rights of the appellants; and Johnson & Co. submitted to an order, and eventually North, J., granted an injunction against the respondent which was reversed by the Court of Appeal. The plaintiff company appealed.

Moulton, Q.C., Cripps, Q.C., and Lawson, for the appellants.

Asquith, Q.C., Upjohn, Q.C., and Roskill, for the respondents, were not called on.

Lord HALSBURY, C.-In this case it appears to me that the question which is raised admits of a very simple solution. The person against whom this process is asked for, is a Swiss subject living in Basle, and it cannot be doubted that unless he has done some act in this country no process could or ought to be issued against him.

The allegation upon which the process is sought is that he has used, vended, or exercised in this country a patented article. It is quite certain that he has not done so himself by his own hand; therefore the only question is whether he has been a party to it in any sense which makes his act one of the acts prohibited by our law in this country. The facts are very simple. A person wrote from this country to have a certain quantity of a patented article sent by post to him in London. I pass over the intermediate point between the maker and the vendor in Basle, and I will assume for the purpose of what I have to say that it was to be directly sent by post by the present defendant. The fact that the sale was com

(a.) Reported by C. H. GRAFTON, Esq., Barrister

at-Law.