from which probably Mr. *Smith, who was well acquainted *737] with the Roman law, drew what is stated in the note referred to, and for the application of which to the law of England the case of Pothonier v. Dawson, Holt 383, is an authority. It may be found on examination that Mr. Smith is right. I do not mean to express any opinion: but I think it right to say thus much.

KEATING, J.-The only question really put forward for the plaintiff at the trial, was, that there had been no sufficient delivery of the articles in question to Bowers. For the reasons already stated, I think there was a sufficient deliverv. Rule absolute.

FULLWOOD v. AKERMAN and Wife, Administratrix of JOHN BOARD. Jan. 14.

By an agreement between A. and B., it was stipulated that A. should for a certain term receive half the profits arising from the sales of an article called Russian Black manufactured by him from the produce of certain quarries of B. :-Held, that A. was not entitled to claim anything in respect of Russian Black not sold as such, but used by B., in the proportion of about one third, mixed with cement manufactured and sold by him.

THIS was an action against the representatives of one John Board, for an alleged breach of an agreement entered into by the intestate in his lifetime.

The declaration stated, that, by an agreement in writing dated the 28th of August, 1849, between the plaintiff, therein described as an inventor of cement, and the said John Board, therein described as a cement manufacturer, it was agreed that the said John Board, his executors, administrators, and assigns, should allow and pay unto the plaintiff for the term of fourteen years from the date of the said agreement one-half of the profits arising from the sales of an article denominated *Imperial Vegetable Russian Black," invented *738] and discovered by the plaintiff, and made from the quarries of

the said John Board, and the said John Board should receive and be allowed an extra 12s. per ton weight on every ton so made, for the use of his premises, machinery, coal, and labour in making the same, and that all ready money transactions arising from the sales of the said article should be equally divided by the plaintiff and the said John Board as soon as the bills should be paid, and that all sales effected for credit should be finally settled up within a month after payment; and it was thereby also agreed that proper and distinct books should be kept, containing a true and proper account between the said parties of all entries of sales from time to time, and showing a correct debit and credit account, the said books to be kept on the premises of the said John Board, and the plaintiff to have access to them at all seasonable times, and that no person should have access to the manufactory where the said article was made, except one Henry George Chard and the said John Board and the plaintiff; and it was thereby also further agreed that the said John Board should not neglect to execute the orders that might be sent to the works of the said John Board, so as to be an injury to the plaintiff, and that the stock in

hand should not be less than one ton in weight; and it was thereby also further agreed that all ingredients to be used in the manufacture of the said article should be bought by the said John Board, and paid for by the plaintiff and the said John Board, and that the said agree ment should not constitute a partnership between the plaintiff and the said John Board: Averment, that, although all things had happened and been performed, and all times had elapsed necessary to entitle the plaintiff to be paid a large sum of money by the said John Board as and for his the plaintiff's share of the said profits, pursuant [*739 to the said agreement, yet the said John Board did not pay or allow to the plaintiff, nor had the said Julia Catherine Sullivan Akerman, administratrix as aforesaid, since the death of the said John Board, paid or allowed to the plaintiff, his said share of the profits, or any part thereof: And the plaintiff further said that the said John Board did not keep proper books containing a true or proper account or entries of sales of the said article, or showing a correct debit and credit account, pursuant to the said agreement in that behalf, nor did he permit the plaintiff to have access to the said books at all seasonable times, pursuant to the agreement in that behalf: And the plaintiff further said that many persons other than the plaintiff, the said John Board, and the said Henry George Chard, were allowed by the said John Board to have and did have access to the said manufactory, contrary to the said agreement in that behalf.. And the plaintiff further said that the said John Board did neglect to execute the orders for the said article that were sent to his said works, so as to be an injury to the plaintiff, and did keep stock in hand less than one ton in weight, contrary to the said agreement in that behalf: and that all things had happened and been performed and all times elapsed necessary to entitle him to maintain this action: Claim 50007.

Plea, payment into Court of 51. Replication, damages ultrà.

The cause was tried before Keating, J., at the sittings at Westminster after last Trinity Term. The facts which appeared in evidence were as follows:-The intestate, John Board, was a cement manufacturer, possessing quarries from which he obtained the material for his manufacture. The plaintiff, who had been in his employ since 1847, discovered that a new article of *commerce might be produced [*740 by burning certain bituminous shale which was found in large quantities in the quarries, but which could not be made available for the manufacture of cement. This new product he called "Imperial Vegetable Russian Black;" and, in consideration of his discovery, the agreement declared upon was entered into between him and Board. After some time it was found that there was little or no sale for the vegetable black, but that it might profitably be used to mix with the cement in the process of manufacture, and large quantities were accordingly made and used for that purpose, to the extent of a fourth or a third of the whole bulk. It was for his share of the profit of what was so used that the plaintiff brought this action.

The sum paid into Court was paid in for the purpose of covering anything the plaintiff might be entitled to in respect of sales of the article in the shape of vegetable black since the date of the award in a previous action by the plaintiff against Board in his lifetime and it was sufficient for that purpose.

C. B. N. S., VOL. XI.-28

It was submitted on the part of the defendant, that all that was contemplated by the agreement was, that the plaintiff was to have the stipulated share of the profit upon all the black which was sold as a distinct article of commerce, but not for what was sold in the shape of cement, on which he already had a profit.

The learned Judge was of this opinion, and accordingly nonsuited the plaintiff,-leave being reserved to the plaintiff to move to enter a verdict for such sum as an arbitrator should determine, if the Court should be of opinion that the construction adopted by the learned Judge

was an erroneous one.

Powell, in Michaelmas Term last, obtained a rule, on the ground "that the plaintiff is entitled to one-half *the profits on the *741] black used and sold in cement made by Board or the defendants since the date of the award in the previous action."

Kinglake, Serjt., and Cole now showed cause.-The agreement is to be construed according to the intention of the parties, to be gathered from the document itself and the surrounding circumstances. The document contains nothing to warrant the present claim: it entitles the plaintiff to a share of the profit on all the Imperial Vegetable Russian Black sold as such; but it did not preclude the intestate from using the bituminous shale in the manufacture of cement.

Powell and Macnamara, in support of the rule.-The question is, whether the plaintiff is to be deprived of his share of the profits made by the sale of the Russian Black because it happens that the intestate found it more conducive to his interest to dispose of it by turning it into cement than to sell it by itself as a distinct article of commerce. [WILLIAMS, J.-It is not sold in the shape of black; and it is not suggested that what was done in order to evade the agree inent.] No fraud is suggested. But, suppose Board had purchased the black to be used by him either in the manufacture of cement or in any other way he chose, would not the plaintiff have been entitled to his share of the profit? The question is, whether that which takes place here is not equivalent to a sale. [WILLES, J.— There is nothing in the agreement to prohibit Board from using any portion of the shale converted into black.] Not in terms. ERLE, C. J.-I am of opinion that this rule should be discharged. *742] It appears that the plaintiff had been employed by Board since the year 1847 in manufacturing cement, receiving by way of remuneration 4d. for every five bushels manufactured, and that, in the year 1849, he suggested to Board that certain bituminous shale, which was not adapted for the making of cement, might by a process with which he was acquainted be converted into an article which he called Imperial Vegetable Russian Black, which would be valuable for many purposes. Board went to some expense in the erection of machinery to carry out the scheme; but, the article thus produced not finding ready sale, it was used by Board in the manufacture of cement, and sold in its mixed state. For anything that appears, the Imperial Vegetable Russian Black, as a separate article of commerce, wholly failed and the question is, whether the plaintiff is entitled under the agreement to a share of profit on the sales of cement into the manufacture of which the Russian Black entered as an ingredient. In terms, the agreement provides that the plaintiff shall have one-half of

the profits arising from the sales of the article in question. No sales of the article have taken place. If there had been anything like a fraudulent evasion of the agreement, there might have been ground for the interference of a Court of equity. But no fraud is suggested; and the circumstances disclosed by the evidence lead to the conclusion that that which was at first supposed to be a valuable article turned out a failure. The bituminous shale as Russian black will not pay: but, mixed with the other materials to the extent of a fourth or a third, it could be profitably sold in the shape of cement, and the plaintiff would receive a share of the profit to the extent of 4d. for every five bushels so mixed and sold. It seems to me that this construction gives full effect to all the words of the agreement, and that the surrounding *circumstances show that it is in accordance with the probable intention of the parties.

WILLIAMS, J., concurred.

[*743

WILLES, J.-I am of the same opinion: and I would only add that I consider the cement in this case even more different from the article called Imperial Vegetable Russian Black, than was the patent fuel in The Mayor of London v. Parkinson, 10 C. B. 228 (E. C. L. R. vol. 70). from coal. As in that case the patent fuel, which was composed of coal dust mixed with 13 per cent. of pitch and lime, was considered not to be "coal" within the 1 & 2 W. 4, c. lxxvi., ss. 23, 60, notwithstanding that there was no purpose to which ordinary pit-coal could be applied, to which coal dust without the admixture of pitch and lime could not also be applied,-so here, though partly composed of the Russian black, the cement manufactured by the intestate was not the article in respect of which the plaintiff was to receive a share of profits. KEATING, J., concurred. Rule discharged.

*WYATT v. THE METROPOLITAN BOARD OF WORKS.

Jan. 27.

[*741

The 56th section of the Metropolis Gas Act, 1860 (23 & 24 Vict. c. 125), enacts that "the costs, charges, and expenses of an incident to the passing of this Act, and preliminary thereto, shall be paid by the Metropolitan Board of Works" out of certain funds :

Held, that the persons to whom such payment is to be made by the board, are, the promoters of the Act, and not the solicitor or parliamentary agent retained and employed by them for hire and reward to do the necessary work.

THE declaration stated, that the defendants were the Metropolitan Board of Works mentioned and referred to as The Metropolitan Board of Works in a certain Act of Parliament, to wit, "Metropolis Gas Act, 1860" (23 & 24 Vict. c. 125), and that the plaintiff, before the making and passing of the "Metropolis Gas Act, 1860," was retained and employed by and on the behalf of certain persons to solicit and obtain an Act of Parliament, and the said persons did solicit the said Act, that is to say, "The Metropolis Gas Act, 1860," which was obtained, and the necessary and proper costs, charges, and expenses of the plaintiff attending the applying for and obtaining and passing the said Act amounted to a large sum of money, which said costs, charges, and expenses of the plaintiff were costs, charges, and expenses

of and incident to the passing of the said Act of Parliament and preliminary thereto, and were due to the plaintiff at the time of the commencement of this suit, and ought under the said Act of Parliament to have been paid to the plaintiff out of the funds thereinafter referred to: That, after the making and passing of "The Metropolis Gas Act, 1860," and before the commencement of this suit, the defendant levied certain funds from the vestries and district boards mentioned and referred to in s. 56 of the said Act of Parliament, being the proper vestries and district boards in that behalf, and the defendants before and at the time of the commencement of this suit had in their hands and possession certain of the said funds which ought to have been paid and applied by them under the said Act of Parliament in and towards the payment of the said costs, charges, and *expenses *745] of the plaintiff of all which the defendants had notice: That, before the commencement of this suit, all things had happened and occurred, and all times had elapsed, which it was necessary should occur, happen, and elapse to entitle the plaintiff to sue in this action for the said costs, charges, and expenses, and for the defendants' breach of duty hereafter mentioned: That the plaintiff had always been ready and willing to do all things which it was necessary he should be ready and willing to do to entitle him to sue the defendants in this action for the said costs, charges, and expenses, and the said breach of duty: Yet that the defendants had not paid to the plaintiff the said costs, charges, and expenses of the plaintiff, or any part thereof, or any portion of the said funds so applicable to the payment of the last-mentioned costs, charges, and expenses as aforesaid: Claim 40007.

Plea, that, before and whilst the plaintiff was soliciting the Metropolis Gas Act, 1860, on the retainer of the said persons who so retained and employed him as in the declaration mentioned for hire and reward to be paid by them in that behalf,(a) he the plaintiff received from the said persons on account of the work done and to be done under the said retainer divers sums of money amounting to less than the whole of the costs, charges, and expenses of the plaintiff attending the applying for, obtaining, and passing of the said last-mentioned Act; and such persons or some of them claimed and insisted that the plaintiff should give credit for such sums and receive only the balance of such costs, charges, and expenses as aforesaid after giving such credit; and the plaintiff denied that he was bound to give such credit against the said costs, charges, and expenses, and refused to accept the *746] *balance after giving credit for the same; and there never was any agreement between the plaintiff and the said persons by whom he was retained as in the declaration mentioned, as to whether such credit should be given or as to any amount for which credit should be given: That the plaintiff's said employers, or some of them, gave notice to the defendants of the premises, and required them not to pay to the plaintiff more than a certain amount, being the balance admitted by them to be due to the plaintiff, and to hold the residue for the said employers of the plaintiff; and the defendants had always been ready and willing to pay to the plaintiff the said last-mentioned admitted balance, but the plaintiff had refused to accept the same, and insisted that the defendants were bound to pay him the full amount of his said (a) The words in italics were added during the argument, at the suggestion of the Court.