Vol. XIV.] the real ground of the cross bill is, that there was "mistake" on the part of the settler and her solicitor, who prepared the settlement. We do not allege any fraud. Our case is, that those who rely on the settlement must show that the settler was well advised as to it, and thoroughly acquainted with all its bearings, when she executed it. The evidence here shows that that was not the fact: Naldred v. Gilham (1) and Cecil v. Butcher (2). Nanney v. Williams (3), Phillips v. Mullings (4), Wollaston v. Tribe (5), and Everett v. Everett (6) really seem to carry the argument to this extent that if a power of revocation is not inserted in the deed it lies on those who support the deed to show that the settler positively declined to have it put in. Prima facie, therefore, every solicitor preparing such an instrument is bound to ask the settler whether he means it to be revocable or the reverse and if the solicitor does not ask that question the deed, if made irrevocable when the reverse was intended, is, ipso facto, void: Mountford v. Keene (7). That case was, no doubt, prior to Phillips v. Mullings, bnt it is not touched by it. Forshaw v. Welsby (8) shows, so far as the case does go, that there is no distinction on this subject between voluntary settlements of real and personal estate. Again, this settlement was plainly substitutional for a will, and, as such, necessarily intended to be irrevocable: Toker v. Toker (9). Every case in this Court has gone more and more against these kind of settlements. For example, this Court will not" rectify " a voluntary settlement. Here, also, the form in which the equity of redemption in the subsequent mortgage was reserved shows that the testatrix did mean to keep the property under her control; and we say that in fact it was so throughout: Anderson v. Elsworthy (10). The case of Mountford v. Keene is identical with the present case, and is not overruled by Phillips v. Mullings. They are now the general law on this question, which is not whether a man shall or shall not give away his own property in his *lifetime, but whether he shall or shall [375 not put it quite out of his power for ever. If he means the latter, he must be shown to have all the requisite advice and knowledge of his acts, and proof of that lies on those who support the validity of his acts. Thirdly: As to the question of election. Assuming the Court to be against us on the other part of the case, it is plain that the two defendants must (according to the () 1 P. Wms., 577. (2 Jac. & W., 565, 575–578. () 22 Beav., 452-461. () Law Rep., 7 Ch., 244, 247. Ibid. 10 Eq., 405. (7) 19 W. R., 708; 3 Davidson's Pre cedents, "Settlements," 823, n. (*) 30 Beav., 243. () 31 Ibid. 629; 3 D. J. & S., 487. 1872 Hall v. Hall. V.-C.W. well known rules of the Court) make their choice of the benefits conferred on them. The plaintiffs in the cross bill being infants, were not called upon to answer, and did not answer, the bill in the first suit. As it was essential for us, in order to get a decree to set aside the settlement, to show a case of either fraud, surprise, or mistake (we rely on the last), it was practically impossible for us to raise that case otherwise than by the cross bill. On the whole case, therefore, we say this settler had not proper advice when she executed this settlement. She was not made to understand its irrevocable character; nor was the difference between a revocable and an irrevocable instrument properly explained to her. All her own conduct points to the conclusion that she meant it to be revocable. There was a clear mistake on her part and on that of her solicitor; and, under all the circumstances of the case, this Court will not allow the deed to stand; it will set it aside and uphold the will. Mr. Greene, Q.C., and Mr. Morshead, for Lewis Hall, Ruth Hall the elder, and Sophia Green and her husband, the principal defendants in the second suit: These cases must, after all, be determined on their own facts. There is no decided case exactly like the present. It is a fallacy to say that the settler wished this deed to be revocable. The evidence shows she had a morbid horror of making wills; and though she did make more than one, at the time when she executed this settlement she fully believed that she had finally provided for the children who were to benefit by it. The instructions given by her to Mr. Humble show that she had a life interest under the settlement; and unless there is some inconsistency or contradiction (which we say there is not) between the settlement as prepared and executed by her and the instructions given 376] for it, we must take *it that the deed does express her real wishes. We say, therefore, that there is nothing to show any desire on her part to retain a power of revoking the settlement. Indeed, the evidence relied on by the other side is far too conflicting and uncertain to be accepted by the Court. What the family thought is of no consequence. What she herself did is of much. But we say that, looking at the evidence which we have adduced in support of the settlement, it is impossible for the Court to say it is not now a valid and subsisting deed, and one which must be upheld. Then as to the cases cited: Naldred v. Gilham (1) was very different from this case. There there was distinct "fraud." So also in Cecil v. Butcher (). In Nanney v. Williams (3) the intention of the settler was plain, and admitted of very little () 1 P. Wms., 577. () 2 Jac. & W., 565, 575–578. (*) 22 Beav., 452–461. V.-C.W. Hall v. Hall. 1872 question. Wollaston v. Tribe (1) and Everett v. Everett (2) were considered in that very case of Phillips v. Mullings (3), and it was there said that they had gone too far. Lord Hatherley, by his decision, has brought back the law to a very sensible condition. The distinction taken between the different kinds of voluntary settlements has no application here, where the only object of the settler was to make an equal provision for her seven children. At the utmost it could only be said that there was an intention to protect one child, or one set of children, against another. But how does that assist these infant plaintiffs? Not at all. Mountford v. Keene (*) is a strange authority for the other side to rely on, because it was the case of a purchaser for value without notice. Toker v. Toker (5) was also a peculiar case. Fraud existed in it, though it was afterwards explained away; and it is to be observed that there the settlement was ultimately upheld. As to the question of election, we do not dispute that. We ask only for a decree according to the prayer of our bill in the first suit. [They also cited Sear v. Ashwell (6); Bolton v. Bolton (7); * Worrall v. Jacob (); Fletcher v. Fletcher (9); Re Way's [377 Trusts (19); Childers v. Childers ("); Jefferys v. Jefferys (12).] Mr, Stallard, for Ellis Hall. Mr. Bagshawe, for Lupton. SIR JOHN WICKENS, V.C.: Mr. Miller, I do not think I need trouble you. I have come very unwillingly to a conclusion - but I have come to a conclusion in your favor. A voluntary settlement of real estate, though containing no power of revocation, is always to some extent in the settler's power, since he can at any time sell or mortgage the settled property. And there can hardly be any legal presumtion that the person ordering and executing a deed, which, though voluntary, does not purport to be revocable, believes that he has a power of revoking it at his pleasure. Hence it is not, I think, quite easy to recognize as sound the conclusion that the absence of a power of revocation from the voluntary settlement of real estate is, where a revocable settlement would answer the settler's purpose as well as an irrevocable one, prima facie evidence of mistake; and that that prima facie (*) 31 Beav., 629; 3 D. J. & S., 487. (1) Law Rep., 9 Eq., 44. (*) Ibid., 10 Eq., 405. (3) Ibid., 7 Ch., 244, 247. () 19 W. R., 708; 3 Davidson's Pre cedents, "Settlements," 823, n. (1) 2 D. J. & S., 365. (") 3 Sw., 411, n. (7) Ibid., 414. (*) 3 Mer., 256. (") 4 Hare, 67. (1) Cr. & Ph., 138. (1) 3 K. & J., 310. 1872 Hall v. Hall. V.-C.W evidence can only be rebutted by showing that the settler had his attention pointedly called to these facts-that his purpose could be effected by a revocable as well as by an irrevocable deed; and that if the deed contained no power of revocation, it would be irrevocable. But such seems to be the result of the recent authorities. It is necessary that fraud, surprise, or mistake should be proved before a voluntary settlement can be set aside. And to set it aside a cross bill is necessary: as is clearly laid down in the case of Re Way's Trusts. The doctrine which seems to have been introduced since Sir W. Grant decided Worrall v. Jacob is, that although a cross bill is necessary, there is in such 378] a case a sort of *presumption or mistake, which to a great degree, if not entirely, changes the onus, and throws a very peculiar burthen on the persons who support the settlement. The reasoning on which that conclusion is founded is not perfectly satisfactory to my mind; but of course I am bound to follow the authorities. Most of them have been cited in the arguments, and need not be now particularly noticed. I should, however, observe that the judgment in Mountford v. Keene (1) is precisely in point, and is not, I think, inconsistent with anything that was stated in Phillips v. Mullings (2). No doubt amongst the very numerous cases that were cited there are shades of difference, as there must be where very illdefined rules are applied to various instruments and under various circumstances. But the fair deduction from the cases altogether, especially from the more recent ones, seems to me to be such as I have stated. It was argued in this case that when Mrs. Hall executed the deed she knew that she was doing, by an irrevocable act, what she might as well have done by a revocable one. But-weighing as well as I can the evidence in this case, and giving no more than a fair weight, but giving a certain amount of weight, to the inference from her subsequent conduct and expressions as to her intentions at the time when she executed the deed I cannot accede to that view. I doubt, in fact, if on the evidence, I could even come to a conclusion that she knew the deed to be irrevocable when she executed it. Therefore, without adverting to the very numerous points which have been argued - some of them points of very great importance and of great difficulty-I think I must hold this settlement to be invalid. The result is, that the original bill will be dismissed with costs against Mr. Thompson; but without costs against everybody (1) 19 W. R., 708; 3 Davidson's Precedents, "Settlements," 823, n. (2) Law Rep., 7 Ch., 244, 247. M.R. Cobbett v. Woodward. 1872 else; and a decree will be made in the cross suit setting aside the settlement, but also without costs. Mr. Lupton may have his costs out of his own estate. No other decree will be made on the cross bill. It seeks to establish the will; but the evidence necessary *for that purpose has not been given, and [379 probably it will not be pressed. Solicitor for the plaintiffs in first suit: Mr. M. K. Braund, agent for Mr. James. Green, Bradford, Yorkshire. Solicitors for the plaintiffs in cross suit and Ellis Hall: Messrs. Duncan & Murton, agents for Mr. George Humble, Bradford, Yorkshire. Solicitors for M. W. Thompson: Messrs. Paterson, Snow, & Burney, agents for Messrs. Busfield & Atkinson, Bradford, Yorkshire. See Phillips v. Mullings, 2 Eng. Rep., 259; Turner v. Collins, 2 Eng. Rep., 290. M.R. June 4, 20, 1872. COBBETT V. WOODWARD. [Law Reports, 14 Equity Cases, 407.] Injunction-Copyright — Illustrated Catalogue — Advertisement · [407 costs. There is no copyright in a descriptive advertisement, illustrated or otherwise, of articles which any one may sell. Where an upholsterer, who had published an illustrated furnishing guide with engravings of the articles of furniture which he sold, and descriptive remarks thereon, filed a bill to restrain the defendant, another upholsterer, from publishing, for the purposes of his own trade, a similar work in which many of the said engravings and portions of the letterpress of the first work were alleged to be copied : Held, that the defendant could not be restrained by injunction from so copying the plaintiff's illustrations or such part of his work as was not original but merely descriptive of his stock, or of common articles of furniture; but that, the defendant's work being a flagrant imitation of the plaintiff's, he could be allowed no costs. This was a suit by the plaintiff, James Cobbett, an upholsterer and house furnisher at Deptford Bridge, to restrain the defendant Francis Woodward, who carried on a similar [408 business at Worcester, from printing and publishing a work called F. Woodward & Co.'s Illustrated Furnishing Guide. The plaintiff carried on an extensive business, and executed orders for furniture and other articles for various parts of the kingdom. In 1866 he published a work on the subject of furnishing and furniture under the title of Cobbett & Co.'s New Furnishing Guide, or the Illustrated Furnishing Guide, containing an introduction and remarks on housekeeping written by the plaintiff himself, with numerous engravings and illustrations of designs and articles of furniture which were sold by his firm. |