A.-G. BURY. his will, at the rate of 1l. per cent., became payable in respect BRACKEN of the said residuary estate as if the same had been immediately given to her by such will, and was accordingly duly paid by the defendants as her executors, an allowance being made to them on account of the duty previously paid in respect of her life interest therein. And it is contended by the Attorney-General, but not admitted by the defendants, that legacy duty after the rate of 51. per cent. is now payable under the will of the said Harriette Mary Brackenbury in respect of so much of the said testator's residuary estate as was, by the will of the said Harriette Mary Brackenbury, appointed and disposed of in favour of her uncle, the defendant, Ralph Brackenbury, and her aunt, the said Hannah Brackenbury, under the residuary gift contained in her said will as herein before stated. The question for the decision of the Court is, whether or not duty at that, or any other, and what rate, is payable in respect of the premises. [ *785 ] L *786] The bill prayed a declaration (inter alia) that legacy duty was payable at the rate of 51. per cent. in respect of so much of the residuary estate of the testator, James Blackledge Brackenbury, as was appointed by the will of his daughter, in favour of her uncle, the defendant, Ralph Brackenbury, and her aunt, Hannah Brackenbury. The answer of the defendants (so far as is material) was as follows: 1. We submit to the judgment of the Court as questions of law, and not of fact, whether or no, as alleged in the said information, the property therein referred to, and in respect of which payment of legacy duty is claimed, is property which Harriette Mary Brackenbury, deceased, did in fact dispose of by her will, and whether her will did or did not operate as an exercise of the general power of appointment, to which, in the event, which happened, of her death without being married, she became entitled, under her father's will, over the whole of his residuary estate, or whether thereupon legacy duty under his will, at the rate of 17. per cent., became payable in respect of the said residuary estate, as if the same had been immediately given to her by such will; and we say that, although true it is that we, as her executors, and in order to avoid proceedings on the part of her Majesty's Attorney-General against us, consented to pay, and did in fact pay, duty at the rate last *aforesaid on the amount of the said property, such payment being, as we submit, a payment in our own wrong, cannot prejudicially affect us in respect to the claim now sought to be enforced against us. 2. With the exceptions above referred to, the statements con tained in the first six paragraphs of the said information are, we believe, correct. 3. We do decline to pay legacy duty at the rate of 51. per cent. in respect of so much of the testator's residuary estate as, in the events which have occurred, has, under his will, become the property of his daughter's uncle and aunt (and which, in the said information, is described as having, by the will of the said testator's daughter, been given to her said uncle and aunt). We decline to pay duty at that rate upon the ground that, in the events which have occurred, no duty at that rate is payable; but we have repeatedly offered, and are willing, to pay duty at the rate of 37. per cent. in respect of the said property. The Attorney-General, the Solicitor-General, Locke and Hanson, for the Crown. * * * Mellish and Dart, for the defendants. * POLLOCK, C. B.: The I am of opinion that the executors of the will of the testatrix are bound to pay legacy duty at the rate of 5 per cent. testatrix, by the mode in which she framed her will, appointed and exercised dominion over the fund subject to her power of appointment, by making it liable to her debts, and to legacies. and annuities. When Mr. Mellish was compelled to admit, that as to the debts, legacies, and annuities, there was a valid exercise of the power, there was, as my brother MARTIN remarked at the time, virtually an end of the case. The uncle and aunt of the testatrix, if they take the property, must take it by virtue. of her will, and are therefore liable to a duty at the rate of 5 per cent. MARTIN, B.: I am of the same opinion. It is not necessary to say what my judgment might be in a case where, within a reasonable time after the death of the donee of a power, the appointees disclaimed all benefit accruing to them under the will which executed the power, and elected and declared their election to take under the gift in the will by which the power was created. That is not the case with which we have to deal. Upon the true construction of the statements in this information and answer, I think we ought to assume that the defendants, and the persons beneficially entitled whom they represent, were either entirely silent in the matter, or, if not, that they did consent to take under the will of the testatrix. Now the facts are these: Mr. James Brackenbury by his *will bequeathed to his daughter an estate for life in this pro A.-G. v. BRACKEN BURY. [ 790 1 [794] [ *795 ] A.-G. v. BRACKEN BURY. L*796 ] perty, and he further provided that, after her decease, it should remain and be upon and for such trusts, intents, and purposes, as his said daughter by her will should direct and appoint, and in default of such direction or appointment, or so far as any such, if incomplete, should not extend, in trust for his said brother and sister, their executors, administrators and assigns. In point of fact the testator's daughter did deal with this property, and declared it to be liable to the payment of her debts, funeral and testamentary expenses, and the legacies and annuities given by her will, and that, subject thereto, it should be equally divided between her uncle Mr. Ralph Brackenbury, and her aunt Miss Hannah Brackenbury. It would seem to follow from the case of Chamberlain v. Hutchinson (1), that the testatrix, by electing to exercise her power so as to charge the property with her debts, funeral and testamentary expenses, legacies and annuities, thereby took it to herself, and treated it as, and made it part of her personal estate; and that, in the event of a disclaimer, the next of kin, and not Mr. Ralph Brackenbury and Miss Hannah Brackenbury (assuming that they are different persons from the next of kin), would be entitled to the residue of the property. When Mr. Mellish admitted that to this extent there was a valid appointment, the case was at an end; because, when that admission is made, we are bound to assume that the appointees take under the will of the donee of the power. They must therefore pay the duty according to their relationship to her, and not to the original testator. CHANNELL, B.: Mr. Mellish has argued that, upon the construction of the statutes which have been referred to, no duty whatever is payable at this time. Upon that point, I *express no opinion, because I consider that the question upon which the parties have come here to obtain the opinion of the Court is, whether, assuming the event to have happened which entitles the Crown to some duty, that duty should be payable at the rate of 3 or 5 per cent. I am of opinion that the Crown is entitled to duty at the rate of 5 per cent. The defendants are in my judgment liable to that duty, if the uncle and aunt take under the will of their niece; and they do so take, unless they are entitled to disclaim the gift under the appointment, and elect and have elected to take it under their brother's will. As soon as Mr. Mellish admitted, what is really indisputable, that the will of the niece operated not merely (1) 111 R. R. 432 (22 Beav. 444). upon that portion of the property which she derived from her father's will, but upon the whole property to this extent, that at least there was a valid appointment so far as to give effect to that portion of her will which made debts, legacies, and annuities chargeable upon her estate, the uncle and aunt were precluded from saying they could take under the bequest in their favour in the original will, and that they do not take under her will. The case of Chamberlain v. Hutchinson (1) is an authority, which is here almost decisive. The distinction no doubt exists, which Mr. Mellish has pointed out, that the power was in that case exercised by the donee in favour of her executors in express terms; but that distinction would not prevent the application of the case as an authority, it would only remove one of the grounds of its application. Upon the whole, I am clearly of opinion that the Crown is entitled to duty at the rate of 5 per cent. WILDE, B.: I am of the same opinion. The testatrix in this case has executed a valid appointment in favour of *creditors and others, with a direction of the residue to her uncle and aunt. It is nevertheless contended that the uncle and aunt, by refusing to take the benefit of the appointment, can bring into operation the bequest, which the original will created in their favour in default of appointment. No authority has been cited for the proposition, that the rejection by one or more of the appointees of the benefit of an appointment, is equivalent to a default of appointment; and it would to my mind be strange if it could be so. The appointment is a valid appointment; it is the exercise of a power, by which the testatrix has successfully assumed to herself the entire dominion over the fund. From this dominion two consequences inevitably follow; first, her executors become liable. to the additional duty, under the 18th section; secondly, the fund becomes assets available for her creditors. It appears to me so violently inconsistent with this state of things, to hold that there has been a default of appointment, that the proposition. requires no further refutation. Judgment for the Crown. (1) 111 R. R. 432 (22 Beav. 444). A.-G. v. BRACKEN BURY. [ *797 ] 1863. Jan. 29. [ 797 ] [ *798 ] [ *799 ] (1 H. & C. 797-803; S. C. 32 L. J. Ex. 120; 9 Jur. N. S. 359; 11 W. R. 438; 7 L. T. N. S. 753.) Proceedings in Chancery for the infringement of a patent, the validity of which was in question, were referred to an arbitrator, who awarded that the patent was not illegal and void: Held, that in an action between the same parties for another infringement, the defendant was not estopped from disputing the validity of the patent. DECLARATION for the infringement of a patent for improvements in the apparatus employed in laying down submarine electric telegraph cables. Pleas (inter alia). Third: that the plaintiff was not the first and true inventor of the said invention. Fourth. That the plaintiff did not, within six calendar *months after the date of the alleged letters patent, cause to be filed a sufficient specification. Fifth. That the invention in the specification described was not the invention for which the letters patent were granted. Sixth. That the supposed invention was not new as to the public use and service thereof. Seventh. That the invention was not an invention for the sale, working or making of any manner of manufacture for which letters patent could be granted according to the statutes in that case made and provided. Replication to third plea. That, before the commencement of this suit, the plaintiff filed a bill in Chancery against the defendants, complaining that the defendants had infringed the patent right in the declaration mentioned, being another and a different infringement from that in the declaration mentioned, and praying the said Court to grant an injunction against the defendants restraining them from infringing the said patent right; and thereupon, by an agreement in writing between the plaintiff and the defendants, it was agreed to refer the matter to an arbitrator. (The replication set out the agreement, by which, after reciting that the plaintiff charged the defendants with infringing his patent; that the defendants denied the validity of the patent, and that the parties had agreed to refer the whole matter to arbitration; it was agreed that, in case the arbitrator should be of opinion that there had been an infringement of the patent by the defendants, he should give the plaintiff such compensation as he thought should be paid for the articles in use; and it was further agreed that the arbitrator should, if necessary, state a special case for the opinion of one of the superior Courts.) And thereupon the arbitrator took upon himself the said reference, and the plaintiff and defendant attended and appeared before him; and the defendant, *amongst other things, contended before the said arbitrator that the plaintiff was not the |