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No. 483—Vol. X.
APRIL 11, 1846.

Price 1s. *** The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and

decided in the several Courts of Law and Equity : House of Lords ........

SE. T. Hoop, Esq. of the Inner |Vice-Chancellor Wigram's SF. FISHER, Esq. of Lincoln's weren Temple, Barrister at Law. Court ..............1 Inn, Barrister at Law.

STENISON EDWARDS, Esq. of the Privy Council ........

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AC Temple; and ""l Inner Temple, Barrister at Law. The Lord

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".nl Temple, Barrister at Law.

LONDON, APRIL 11, 1846.

| that ever proceeded from parliamentary lips, wrapped

up in a cloud of parliamentary commonplaces. If it The Government proposes, it seems to meet the con- were intended in earnest that the parties interested in ficting clamours of railroad company promoters and such undertakings should have the opportunity of conallottees, by bringing forward a measure with regard to sidering the projet de loi before its formal proposal to the winding up of the affairs of railroad companies, Parliament, the bill should have been prepared, and its which, so far as we can gather its import from the proposed enactments specifically announced, even should speeches of Sir Robert Peel and the Earl of Dalhousie, the forms of Parliament not render it expedient actually appears to be of this general character: that, upon a to read it as a bill. As it is, all that we know is, that majority of the shareholders in a railroad company there is to be a trustee, who, by some“ machinery,” as desiring to stay proceedings in Parliament, and peti- it was described, is to arrange all things; but what that tioning both Houses to that effect, an order shall be made machinery is, Parliament was not told; and, therefore, staying all proceedings before Parliament in the mat- neither we nor any other persons interested in the obter until further order; and that, as to companies injects of the proposed act can tell what it is that is to be various stages of advancement or of failure, upon a ma- considered,—what that is upon which representations, jority of the shareholders desiring to wind up their or petitions, or suggestions are to be sent forth between concerns, and petitioning both Houses of Parliament to this and the post Easter parliamentary sittings. that effect, a sort of trustee or official assignee shall be We can, however, form an opinion as to the points appointed, to collect the assets and pay the debts of which should be considered and provided for in any act the company, and to divide the balance, if there be any, of Parliament professing to intend the adjustment of among the shareholders and other parties entitled. the relative claims and liabilities of promoters of railThis seems the general outline of the plan which is road companies, allottees in such companies, and third thrown out now, in order that promoters and share-persons contracting with them. On those points we holders of companies may consider it between this and shall offer a few observations. the bringing in of the bill, which is to take place im- . Whatever may be the arrangements proposed as bemediately after the Easter holidays. We remember a tween promoters and shareholders, whatever may be saying of an ancient worthy, " That all that he knew the new relation which, as between those parties, may well'was, that he knew nothing;” and, in like manner, be thought to exist, founded upon any implied contracts We think, that all one can say of the proposed measure arising out of that general knowledge of the nature of is, that he can say nothing! The essence of such a company speculations, which it would be absurd, at measure resides in its details, or, at least, in the general this day, not to impute to all persons sui juris and comarrangement of its specific details; and to tell anxious potes mentis, few, we believe, could be found to assert and expectant promoters and allottees, that, by some that there is any circumstance in the new order of things machinery, in which a trustee is to figure, and that is any sufficiently new relation between companies, or literally all that is told them, their disputes shall be their representatives, and third persons which could settled, their anxieties allayed, their liabilities de- justify any interference with the rules of law ny w existtermined,' is a piece of the merest oratorical mockery 'ing for the protection of sus faird persons. T. e rights Vol. X.


of persons dealing with and supplying companies with OBSERVATIONS ON BROWN V. ANNANDALE goods or labour, whether through provisional commit

(WEBSTER'S PAT. CAS. 433). tees or directors, or otherwise, ought, therefore, and we have no doubt will be left as they now are at law and in equity. If facilities can be afforded for enforcing

It is well known, that, in respect to the grant of such rights with a saving of time or expense to either

letters-patent, distinct grants are made for England, party, that will be a proper object of legislation; but

Scotland, and Ireland respectively. The letters-patent we apprehend that it will not be thought a legitimate

for England issue under the Great Seal of England; object in any measure, to diminish such rights, either

those for Scotland under the seal appointed by the treaty as to their extent, the directness and simplicity of the

of Union to be used in the place of the Great Seal of remedies for enforcing them, or the expedition with

Scotland; and those for Ireland under the Great Seal which they can be enforced.

of Ireland; and the privileges granted are for most purWith regard to the relative positions of promoters

poses distinct. Thus, there can be no doubt that the and shareholders, the case may be different. It may

possession of letters-patent in England, would not ennot be unjust in the abstract, or impolitic as to future

title the patentee to prevent the use of his invention in transactions, to impute, in point of law, to persons con

Scotland; nor, on the other hand, if there be a patent tracting to take shares in railroad or other speculative

in England, could a person making or purchasing the companies, that knowledge which, in society, every man

patent article in Scotland, bring it to England for the of the world would think himself deeply insulted in

purpose of trading. Whether a subject of the Queen, being supposed not to possess; but it does not follow

purchasing in Scotland or Ireland an article for which that it would be just to adopt such an imputation in an

there is a patent in England, might bring it to England act operating retrospectively. We apprehend, there

for the purpose of personal use, and whether, if he died fore, that the bill intended to be proposed ought to be in England, it might be sold there as part of his estate, severely criticised, if it proposes to alter the legal rights

has been doubted; and to this question Lord Eldon of shareholders in existing schemes; that it ought,

said he did not know an answer. (Universities of 0.xtherefore, in fixing the powers and duties of the pro

ford and Cambridge v. Richardson, 6 Ves. 709).

Until the decision of the House of Lords in Brown posed trustee, to leave as they now are, at law and in equity, the rights and liabilities of shareholders and

v. Annandale, (Webster's Pat. Cas. 433), it was gepromoters inter se, only providing definite and, if pos

nerally thought that the three kingdoms were so dissible, cheap and expeditious modes of enforcing those

tinct with reference to patent rights, that user of an rights and liabilities.

invention in one of the three branches of the United

Kingdom would not, of itself, invalidate the subsequent It would, no doubt, sound very well in an oration,

grant of letters-patent for such invention in either of and would have a pretty systematic and orderly air, to

the other branches. Brown V. Annandale, however, make allottees liable in all cases to contribute, for in

following the older, and till then but little known case stance, to the preliminary expenses of an undertaking;

of Roebuck v. Stirling, (cited in Brown v. Annandale), or, on the other hand, to make them wholly irresponsi

has put an end to that notion, so far, at least, as regards ble, leaving all the onus upon the promoters. But, if

the validity of a Scotch patent taken out after the inthe law is now, that under certain circumstances an

vention has been in use in England. Some slight shadow allottee is not liable, and that under certain others he is, there can be no good reason for reversing the lia

of doubt may still exist, perhaps, whether prior user

of an invention in Scotland would, upon the authority bilities, and, by an ex post facto law, committing an

of Brown v. Annandale, invalidate letters-patent obinjustice for the sake of symmetry. The parliamentary trustee ought, therefore, we conceive, to have as many

tained in England; because, in Brown v. Annandale, executive facilities as possible, but no powers or rights

much stress was laid upon the terms of a Scotch patent, inconsistent with the existing legal and equitable rights

which are, in some respects, different from those of an

English patent. The English patent recites that the of all his cestuis que trustent.

petitioner has represented to the Crown that he is the In the speeches announcing the proposed measure,

inventor of the particular invention, and that the same not a word is said about how the trustee is to collect

is new in England, Wales, and the town of Berwickthe assets of a company,—what are to be his powers,

upon-Tweed, and then goes on to grant the exclusive how he is to sue or be sued,--how the great stumbling

rights conferred by the letters-patent; concluding with block, the question of parties, is to be dealt with, &c.

a proviso that the same shall be void, if (inter alia) Of course, these, and other practical difficulties, which

the invention shall be shewn not to be new " within are in fact the principal, if not the only, present diffi

that part of the United Kingdom called England, the culty, will be dealt with by the bill. But, again,

Queen's dominion of Wales, and the town of Berwickwe must ask, what Legislators mean by offering for

upon-Tweed." the consideration of the parties concerned, during the A Scotch patent, after stating what the petitioner Easter holidays, the vaguest generalities, on a subject

says he has invented, continues the recital thus: on which the necessity for legislative interference arises

“Quam inventionem credit pro generali beneficio et almost entirely from obstructions and difficulties in

commodo futuram esse; dictam inventionem novam esse, matters of detail, and in the smallest possible degree

manest possible degree et haud unquam ante hoc factam aut usitatam per from any difficulty as to broad principles.

ullam aliam personam aut personas quascunque intra ha regna," (not“prædictam partem &c., vocatam &c.") And then the condition is in the same terms as in the English patent: “Proviso semper, &c., dictam inven- ance, is that which we gather to be suggested by the artionem quoad publicum usum ejus, in illa parte Regni gument of Sir F. Pollock, (Webster's Pat. Cas. 446, nostri Uniti Scotia vocata, usum et exercitum non esse,” | 447), whether every English patent, at least, granted &c. On this Lord Campbell observed, “How can you according to the form and under the practice in use apply 'hæ regna,' in the recital, to Scotland only?” before Brown v. Annandale, is not void, on the ground, And, further, “An English patent might remain good that, if the Crown has no power to grant letters-patent with the old form of proviso, notwithstanding the except for an invention new in the whole realm, then, Union, although a Scotch patent might not be so. I first, it ought not to grant them except upon a suggesdo not mean to say that that is so. The Crown tion that the petitioner has brought himself within the would not then be deceived in its grant, and the patent statute; and, secondly, it ought not to grant them with Toid on that account.” However, although one ground a condition falling short of the condition that the staof the decision in Brown v. Annandale, besides the tute requires*. The suggestion of the petitioner in suthority of Roebuck v. Stirling, appears to have been every petition for an English patent, before Brown v. the construction put upon the words “regna. Annandale, was merely that the invention was new in in the recital, as being a false recital, and, therefore, a England. He did not, therefore, suggest and swear to deceit upon the Crown, the broad ground of the de- all the facts requisite to empower the Crown to grant eision (so far as it was a decision upon principle, irre- him a patent. It might be within the knowledge of spective of the authority of Roebuck v. Stirling) seems the petitioner, at the time of presenting his petition, to have been, that, upon the true construction of the that the invention was not new in the whole realm; statute of James I, the Crown has no power to grant and it might happen, that, afterwards, all evidence of letters-patent for an invention, unless it is new in the the fact would be lost, except that possessed by the pewhole realm. If that is the true ground of the deci- titioner; and the result would be, that, by omitting to sion in Brown v.Annandale, it would follow, that, gene- suggest and swear to the fact of novelty in the whole rally, previous user of an invention in either of the realm, the petitioner would be in truth deceiving the three branches of the United Kingdom, or, in fact, in Crown into making a grant that ought not to have any locality being part of the realm, will, of itself, in- been made. The question, therefore, is, ought it in validate the subsequent grant of letters-patent for such point of law to be intended, that the Crown means to invention, in either of the remaining branches.

grant a right, which it has no power to grant, except From this doctrine some very singular and unfore- to a person possessing specific qualifications, and in reseen consequences may flow. One is, that involved ference to a thing possessing specific attributes, upon a in the question suggested by Mr. Webster, in the suggestion and affidavit failing to allege and prove some notes to his report of Brown v. Annandale, (Web- of the requisites? ster's Pat. Cas. 454), Whether the decision will apply On the second point, can a grant by the Crown be to a case in which the true and first inventor in one sustained, which, by declaring that it shall be void if part of the realm, is the grantee of the letters-patent the invention is new only in England, impliedly purin the other part. We certainly do not see why it ports to be good, notwithstanding the invention may not should not. The fact that avoids a grant of letters- be new in another part of the realm, contrary to the patent for a particular invention, under Brown y. An- | statute under which the Crown derives its power? To nandek, is the fact of its antecedent publication. What say, that, by the express condition, the Crown does not can it matter by whom, or how, that publication is intend to imply, that, so far as novelty is concerned, the made? It is quite clear, that, if A. publishes in fact grant shall be good if that condition is complied with, is his own invention in England, he cannot afterwards to impute to the Crown a surprise and intended fraud sustain a patent for it in England. It is equally clear, upon the grantee, which, of course, cannot be imputed that, if he publishes it in law, that is, if he obtains á to the Crown; while, if we say that the Crown did not patent, and afterwards files a specification, (which mean to practise a fraud upon the grantee, then we fall would be a publication in law), he could not afterwards into the assertion, that it meant to make a grant conprocure the first letters-patent to be set aside, and ob- trary to law, which would, of course, be void. The tain new letters-patent. Why, then, should the fact, latter seems technically the view most consonant with that a publication in Scotland is merely a publication legal reasoning. in law, by reason of the true inventor obtaining letters- We do not, of course, for one instant, affect to defend patent and filing a specification, (which would un- the common sense of these arguments. They are of doubtedly prevent his afterwards obtaining valid let the extremest technicality, and their consequences, if ters-patent in Scotland), prevent the operation of the they prevailed, would be absolutely frightful. But it doctrine of Brown v. Annandale, so as to preclude him is not clear, for all that, that a court of law could escape from obtaining valid letters-patent in England ? It from them, without overturning settled doctrines of law may seem a hardship, that the rule should go so far, touching the validity of grants by the Crown. and, if the rule be so, it may cause many inconveniences; but we conceive that the rule laid down by

rule laid down by


* This doubt seems also to be sanctioned by an observation Broron v. Annandale is, that the invalidity of letters of the Lord Chancellor. The counsel for the appellant having patent will be the consequence of the mere fact of an observed, in his argument in favour of the validity of the grant, tecedent publication of the invention in any other part that the respondent claimed to control the prerogative ;--that of the realm, and that there is nothing in that case to the said letters-patent ought to have an additional or more reauthorise the assumption, that publication of any par- strictive proviso;" the Lord Chancellor said, “ If the proviso is ticular kind was meant.

made more extensive than the law authorises, it would no However, whether this is a correct view of the rule doubt be void by the statute." The writer apprehends, that his or not, it is, at any rate, so far from clear that it is in- | Lordship was here referring to the very question, whether a correct, that it will behove an inventor (when he can proviso, that, if the invention should appear not to be new in so to arrange matters, if he intends to take out patents in

ts in England only, the grant should be void, would be a sufficient more than one of the three kingdoms, as that the spe- |

proviso; or whether it ought not to have gone on to say, that cification of his invention shall not be filed in either

| the patent should be void if the invention was not new through

out the realm. It must be observed, however, that, throughkingdom, until after the letters-patent are sealed in the

out the case of Brown v. Annandale, the observations of the other. If he does not take this precaution, he incurs

learned Lords appear, according to Mr. Webster's report, to great risk of losing his right in one or other of his have been merely by way of passing comments upon the argupatents, under Brown v. Annandale.

ments, and were probably scarcely intended to go forth as even Another question of some difficulty and great import. I dicta.


key whatever to the intention, can it be doubted that the courts must give effect to the words accordingly,

however repugnant this may be to ordinary notions DESCENT AMONG COPARCENERS. When the absurd rule of excluding the half-blood was

| criticised, Blackstone thought it sufficient to reply, TO THE EDITOR OF "THE JURIST."

with the most benignant serenity, that rules of inheritSIR, I have read the two articles on this subject ance are matters of merely arbitrary institution; that which recently appeared in THE JURIST, with equal as the descent of estates to collaterals of the whole blood. tonishment, and am still at a loss to decide whether instead of to the Grand Turk, was an indulgence for J. Wi's conclusion, or J. C. Ci's argument against it, which we have too much reason to be grateful, &c. be most worthy of admiration.

If such arguments as these are sufficient to vindicate When J. W. expounds the rules of the common law, | the superhuman wisdom of the common law, surely they and their application to particular cases, no one can are available on behalf of the Legislature, from which, desire a sounder or more perspicuous guide; but when at the present day, when it meddles with the law of he misapplies his common-law deductions to the en- property, anything short of downright unintelligible tirely new circumstances created by an act of Parlia absurdity is accepted as a boon. ment, one is tempted to exclaim

It having been, in substance, enacted, by words which Ah me! what eyes hath Coke put in thy head,

are incapable of two constructions, that, after an entire

estate has descended to the heirs of a certain person, & That have no correspondence with true sight! Or if they have, where is thy judgment filed,

portion of that estate may descend to the heirs of the That falsely censures what they see aright?"

same person, it behoves J. W., before he can make use

of any authority as to descent at common law, to prove J. W. may have proved, for aught I know, that at that such a case of successive descent was possible bethe common law an estate could not have been subdi fore the statute. Has he done so? I am not hardy vided by the effect of successive descents, in the manner

enough to dispute his authorities, as J. C. C. does, or to which, according to a very prevalent opinion, is pos- assert, with J. C. C., that such lawyers as Littleton sible under the existing law; but he has omitted to

and Coke were likely to forget all their learning, except supply one essential link to the chain of his argument, so far as it might bear on the very question, for the which is, the proof that the kind of successive de- time being, under consideration. I fully admit all that scent which has been created in certain cases by act of

is expressed and implied by J. W.'s authorities; but I Parliament could have happened under any possible deny that they are in point. circumstances at common law.

His first case is that of an estate tail. But whenever The stat. 3 & 4 Will. 4, c. 106, s. 2, enacts, “ that an estate tail descends, the descent is, per formam doni, in every case descent shall be traced from the pur- of the entire land to the heir of the donee. On every chaser." The question is, how does this enactment descent of an estate tail the intent of the donor is oboperate in the case of the death of a coparcener who has served. But the donor's intent was never expressed not created a new estate by purchase in her share? And, with regard to the descent of a portion only of the land. for the solution of the question, the act does not afford If the enjoyment of a portion of the land according to another explanatory word, except that, in defining the the gift is hindered by any means, that circumstance word “purchase,” it speaks of the land” as the sub

cannot be looked at in a question arising exclusively ject of descent. It has no preamble; and all that we among the issue of the donee. If a daughter has levied can gather from the interpretation clause about descent la fine, her issue are barred by the fine from claim. is, that it shall include the flight of an estate upwards | ing contrary to its terms; but that can give them no to an ancestor, contrary, as Lord Coke suggests, to the right to recompense from their kindred. "If the share laws of gravitation.

of a coparcener has passed by a feigned recovery, it is “ In every case descent shall be traced” &c. That

represented by the fictitious recompense in value. But, is to say, whenever the question is,—who shall inherit says J. W., when an estate tail descends on two daugh“ land ?" the descent shall be traced from the purchaser. ters, A. and B., and A. dies, her share must descend to The descent of what? Clearly of “the land” to be the heirs of the donee, including B. according to the inherited, and of nothing more. For a reason which opinion which he controverts, but excluding her acwill appear presently, I will put the case thus: Two co-cording to his authorities. Now, I admit that he accuheiresses, A. and B., make partition by a conveyance of rately lays down the rule of descent of an estate tail, Whiteacre to the use of A., and Blackacre to the use after the Statute de Donis,-a rule created by the courts of B.; the effect of which is, that, under the old law, in consequence of that statute, and not repugnant to each becomes seised in deed of her share in severalty, the very vague and inaccurate terms in which it is exbut without breaking the descent, or becoming a “pur-pressed; but I say that the case of a fee simple was chaser" under the statute. On the death of A, with

entirely different, and that J. W.'s position, (echoed by out having disposed of her share, something must de- J. C. Č.), that, if the heir of a person had been discoscend on some person or persons. What is it that de- / vered for the purposes of the descent of an estate tail, scends ? Under the old law, it would have been A.'s the same individual would also be heir of the same pershare in severalty, and under the statute it is the same. son for the purposes of the descent of an estate in fee It is enacted, « that in every case descent shall be simple, is quite erroneous. The coincidence was always traced from the purchaser.” The “ case” here is as accidental. He will not deny this, upon a case being to the descent of Whiteacre. Descent of what? Of put. Suppose Charles Smith, donee in tail male of that which is to descend. Question as to the descent of Whiteacre, and purchaser in fee of Blackacre, to leave Blackacre there is none, for its owner is alive, and in a son John and a daughter Jane by a first wife, and & the actual seisin as heir. Then, can any argument be son James by a second wife. John enters on both estates, framed, that shall even appear to refute the plain con- and dies without issue male. James will take Whiteclusion, that the heir or heirs of the purchaser of acre, and Jane or John's issue female, as the case may Whiteacre shall inherit Whiteacre? or this deduction be, would, at common law, take Blackacre. Other cases therefrom, that, as a daughter of the purchaser of might be put, as of a fee simple by descent from the Whiteacre survives, the issue of his deceased daughter mother, &c. The case which J. Wi's argument recanaot be entitled to the entirety of Whiteacre ?

quires, of a descent at common law of a moiety of an This being the plain and only meaning of the words estate in fee simple to the heir of the purchaser of the employed by the Legislature, and there being no l entirety, cannot be found.

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