A PERSON who has been several Years in a Solicitor's Just published, in 1 vol. 8vo.,cloth boards, price 148., Office, and has some Knowledge of Conveyancing, wishes to pro- LIVES of EMINENT ENGLISH JUDGES of the Se cure a SITUATION as CLERK to a CONVEYANCER in LONDON. Address, A. B., No. 36, Gutter-lane. JEREMY'S ANNUAL DIGEST FOR 1845. This day is published, in royal 8vo. price 9s., boards, venteenth and Eighteenth Centuries. Edited by W. N. WELSBY, Esq., M.A., Recorder of Chester. Containing the Lives of Sir Matthew Hale, Lord Keeper Whitelocke, Lord Nottingham, Sir John Holt, Lord Cowper, Lord Harcourt, Lord Macclesfield, Lord King, Lord Talbot, Lord Hardwicke, Sir William Blackstone, Lord Bathurst, Lord Mans AN ANALYTICAL DIGEST of all the REPORTS of field, Lord Camden, Lord Thurlow, Lord Ashburton. CASES decided in the Courts of Common Law, and Equity, of Appeal, and Nisi Prius, and in the Ecclesiastical Courts, in the Year 1845. By HENRY JEREMY, Esq., Barrister at Law. V. and R. 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Of whom may be had, recently published, PRINCIPLES of the LAW of REAL PROPERTY, intended as a "The want which the Student has felt, of an Elementary Guide to the Law of Real Property as it exists, and as it is practically important at the present day, Mr. Williams (who was already favourably known to the Profession by an edition of Watkins's Treatise on Descents, published in 1837) has endeavoured to supply by his present Work, and, we think, with eminent success. He has developed his plan with great clearness of method, in a lively and agreeable style."-Jurist. "In many important respects, a decided improvement upon its predecessors; and when the names of some of these are remembered, we think, that, in expressing this opinion, we are passing no slight praise upon Mr. Williams's book."-Law Magazine. "Of considerable use and merit. It appears to us written in a pleasing and agreeable style, and well calculated to make a favourable impression on the Student."-Law Review. AYCKBOURN'S CHANCERY PRACTICE. This day is published, in 1 vol. 12mo., price 14s. boards, comprising all the Alterations effected by the New Orders, 8th May, 1845, with Practical Directions, a full Selection of the Modern Cases, (including the BERT AYCKBOURN. Second Edition, enlarged and carefully reDecisions upon the New Orders), and an Appendix of Forms. By HUvised, by THOMAS H. AYCKBOURN, Esq., of the Middle Temple, Barrister at Law, and HUBERT AYCKBOURN. Henry Butterworth, Law Bookseller and Publisher, 7, Fleet-street. STRUCTION of RAILWAYS, passed the 8 & 9 Vict., Sess. 1845, with LAW. The FIRST NUMBER of the SEVENTH VO Tabular Abstract, Introduction, and copious Indexes, 2 vols. 12mo., cloth, price 248. A TREATISE on the PRACTICE of COMMITTEES of the HOUSE of COMMONS, with Reference especially to PRIVATE BILLS. By CHARLES FRERE, Esq., Barrister at Law, and one of the Clerks in the Office of the Chief Clerk of the House of Commons. 8vo., cloth, price 5s. 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LUME of the LAW TIMES and JOURNAL of PROPERTY is published this day, affording a good Opportunity for New Subscribers. The LAW TIMES is the Organ of the Legal Profession, and contains Verbatim Reports of all Written Judgments, Legal Intelligence, the Advertisements of the Profession and of Estates for sale throughout the Country. Subscription:-Half-year, 11. 58.; one year, 21. 7s., if paid in advance at the Law Times Office, 29, Essex-street, Strand. METCALFE'S NEW PATTERN TOOTH-BRUSH, and 130 B, Oxford-street, one door from Holles-street. houses. paid) sent to the Office, No. 3, CHANCERY LANE, or to V. and R. Printed by WALTER M'DOWALL, PRINTER, residing at No. 4, Pemberton Row, Gough Square, in the Parish of St. Bride, in the City of London, at his Printing Office, situate No. 5, Pemberton Row aforesaid; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. 11, John Street, Bedford Row, in the County of Middlesex. Saturday, April 4, 1846. No. 483-VOL. X. APRIL 11, 1846. PRICE 18. ** 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 {E. T. He, B. Fist of the Inner Privy Council Temple, Barrister at Law. TENISON EDWARDS, Esq. of the The Lord Chancellor's (E. T. HOOD, Esq. of the Inner .... Court ..... Vice Chancellor Wigram's Lincoln's Inn, Barrister at Law. Temple; and that ever proceeded from parliamentary lips, wrapped up in a cloud of parliamentary commonplaces. If it were intended in earnest that the parties interested in such undertakings should have the opportunity of considering the projet de loi before its formal proposal to Parliament, the bill should have been prepared, and its proposed enactments specifically announced, even should the forms of Parliament not render it expedient actually to read it as a bill. As it is, all that we know is, that there is to be a trustee, who, by some "machinery," as it was described, is to arrange all things; but what that machinery is, Parliament was not told; and, therefore, neither we nor any other persons interested in the objects of the proposed act can tell what it is that is to be considered,-what that is upon which representations, or petitions, or suggestions are to be sent forth between this and the post Easter parliamentary sittings. THE Government proposes, it seems, to meet the conflicting clamours of railroad company promoters and allottees, by bringing forward a measure with regard to the winding up of the affairs of railroad companies, which, so far as we can gather its import from the speeches of Sir Robert Peel and the Earl of Dalhousie, appears to be of this general character: that, upon a majority of the shareholders in a railroad company desiring to stay proceedings in Parliament, and petitioning both Houses to that effect, an order shall be made staying all proceedings before Parliament in the matter until further order; and that, as to companies in various stages of advancement or of failure, upon a majority of the shareholders desiring to wind up their concerns, and petitioning both Houses of Parliament to that effect, a sort of trustee or official assignee shall be appointed, to collect the assets and pay the debts of the company, and to divide the balance, if there be any, among the shareholders and other parties entitled. This seems the general outline of the plan which is thrown out now, in order that promoters and shareholders of companies may consider it between this and the bringing in of the bill, which is to take place immediately after the Easter holidays. We remember a saying of an ancient worthy, "That all that he knew well was, that he knew nothing;" and, in like manner, we think, that all one can say of the proposed measure is, that he can say nothing! The essence of such a measure resides in its details, or, at least, in the general arrangement of its specific details; and to tell anxious and expectant promoters and allottees, that, by some 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 now existtermined, is a piece of the merest oratorical mockerying for the protection of such third persons. The rights VOL. X. M We can, however, form an opinion as to the points which should be considered and provided for in any act of Parliament professing to intend the adjustment of the relative claims and liabilities of promoters of railroad companies, allottees in such companies, and third persons contracting with them. On those points we shall offer a few observations. Whatever may be the arrangements proposed as between promoters and shareholders, whatever may be the new relation which, as between those parties, may be thought to exist, founded upon any implied contracts arising out of that general knowledge of the nature of company speculations, which it would be absurd, at this day, not to impute to all persons sui juris and compotes mentis, few, we believe, could be found to assert that there is any circumstance in the new order of things SPA www. (WEBSTER'S PAT. CAS. 433). of persons dealing with and supplying companies with OBSERVATIONS ON BROWN v. ANNANDALE, goods or labour, whether through provisional committees 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 such rights with a saving of time or expense to either party, that will be a proper object of legislation; but we apprehend that it will not be thought a legitimate object in any measure, to diminish such rights, either as to their extent, the directness and simplicity of the remedies for enforcing them, or the expedition with which they can be enforced. With regard to the relative positions of promoters and shareholders, the case may be different. It may not be unjust in the abstract, or impolitic as to future transactions, to impute, in point of law, to persons contracting to take shares in railroad or other speculative companies, that knowledge which, in society, every man of the world would think himself deeply insulted in being supposed not to possess; but it does not follow that it would be just to adopt such an imputation in an act operating retrospectively. We apprehend, therefore, that the bill intended to be proposed ought to be severely criticised, if it proposes to alter the legal rights of shareholders in existing schemes; that it ought, therefore, in fixing the powers and duties of the proposed trustee, to leave as they now are, at law and in equity, the rights and liabilities of shareholders and promoters inter se, only providing definite and, if possible, cheap and expeditious modes of enforcing those rights and liabilities. It would, no doubt, sound very well in an oration, and would have a pretty systematic and orderly air, to make allottees liable in all cases to contribute, for instance, to the preliminary expenses of an undertaking; or, on the other hand, to make them wholly irresponsible, leaving all the onus upon the promoters. But, if the law is now, that under certain circumstances an allottee is not liable, and that under certain others he is, there can be no good reason for reversing the liabilities, and, by an ex post facto law, committing an injustice for the sake of symmetry. The parliamentary trustee ought, therefore, we conceive, to have as many executive facilities as possible, but no powers or rights inconsistent with the existing legal and equitable rights of all his cestuis que trustent. In the speeches announcing the proposed measure, not a word is said about how the trustee is to collect the assets of a company,-what are to be his powers,— how he is to sue or be sued,-how the great stumblingblock, the question of parties, is to be dealt with, &c. Of course, these, and other practical difficulties, which are in fact the principal, if not the only, present difficulty, will be dealt with by the bill. But, again, we must ask, what Legislators mean by offering for the consideration of the parties concerned, during the Easter holidays, the vaguest generalities, on a subject on which the necessity for legislative interference arises almost entirely from obstructions and difficulties in matters of detail, and in the smallest possible degree from any difficulty as to broad principles. It is well known, that, in respect to the grant of letters-patent, distinct grants are made for England, Scotland, and Ireland respectively. The letters-patent for England issue under the Great Seal of England; those for Scotland under the seal appointed by the treaty of Union to be used in the place of the Great Seal of Scotland; and those for Ireland under the Great Seal of Ireland; and the privileges granted are for most purposes distinct. Thus, there can be no doubt that the possession of letters-patent in England, would not entitle the patentee to prevent the use of his invention in Scotland; nor, on the other hand, if there be a patent in England, could a person making or purchasing the patent article in Scotland, bring it to England for the purpose of trading. Whether a subject of the Queen, purchasing in Scotland or Ireland an article for which there is a patent in England, might bring it to England for the purpose of personal use, and whether, if he died in England, it might be sold there as part of his estate, has been doubted; and to this question Lord Eldon (Universities of Oxsaid he did not know an answer. ford and Cambridge v. Richardson, 6 Ves. 709). Until the decision of the House of Lords in Brown v. Annandale, (Webster's Pat. Cas. 433), it was generally thought that the three kingdoms were so distinct with reference to patent rights, that user of an invention in one of the three branches of the United Kingdom would not, of itself, invalidate the subsequent grant of letters-patent for such invention in either of the other branches. Brown v. Annandale, however, following the older, and till then but little known case of Roebuck v. Stirling, (cited in Brown v. Annandale), has put an end to that notion, so far, at least, as regards the validity of a Scotch patent taken out after the invention has been in use in England. Some slight shadow of doubt may still exist, perhaps, whether prior user of Brown v. Annandale, invalidate letters-patent obof an invention in Scotland would, upon the authority tained in England; because, in Brown v. Annandale, much stress was laid upon the terms of a Scotch patent, which are, in some respects, different from those of an English patent. The English patent recites that the petitioner has represented to the Crown that he is the inventor of the particular invention, and that the same is new in England, Wales, and the town of Berwickupon-Tweed, and then goes on to grant the exclusive rights conferred by the letters-patent; concluding with a proviso that the same shall be void, if (inter alia) the invention shall be shewn not to be new 66 within that part of the United Kingdom called England, the Queen's dominion of Wales, and the town of Berwickupon-Tweed." A Scotch patent, after stating what the petitioner says he has invented, continues the recital thus: "Quam inventionem credit pro generali beneficio et commodo futuram esse; dictam inventionem novam esse, et haud unquam ante hoc factam aut usitatam per ullam aliam personam aut personas quascunque intra hæ 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. Čas. 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 sugges do 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 Fold 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 "hæ 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 cision (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 to a person possessing specific qualifications, and in reference to a thing possessing specific attributes, upon a suggestion and affidavit failing to allege and prove some of the requisites? On the second point, can a grant by the Crown be sustained, which, by declaring that it shall be void if the invention is new only in England, impliedly purports to be good, notwithstanding the invention may not be new in another part of the realm, contrary to the statute under which the Crown derives its power? To say, that, by the express condition, the Crown does not intend to imply, that, so far as novelty is concerned, the grant shall be good if that condition is complied with, is to impute to the Crown a surprise and intended fraud upon the grantee, which, of course, cannot be imputed to the Crown; while, if we say that the Crown did not mean to practise a fraud upon the grantee, then we fall into the assertion, that it meant to make a grant contrary to law, which would, of course, be void. The latter seems technically the view most consonant with legal reasoning. From this doctrine some very singular and unforeseen consequences may flow. One is, that involved in the question suggested by Mr. Webster, in the notes to his report of Brown v. Annandale, (Webster's Pat. Cas. 454), Whether the decision will apply to a case in which the true and first inventor in one part of the realm, is the grantee of the letters-patent in the other part. We certainly do not see why it should not. The fact that avoids a grant of letterspatent for a particular invention, under Brown v. Annandale, is the fact of its antecedent publication. What can it matter by whom, or how, that publication is made? It is quite clear, that, if A. publishes in fact his own invention in England, he cannot afterwards sustain a patent for it in England. It is equally clear, that, if he publishes it in law, that is, if he obtains a patent, and afterwards files a specification, (which would be a publication in law), he could not afterwards procure the first letters-patent to be set aside, and obtain new letters-patent. Why, then, should the fact, that a publication in Scotland is merely a publication 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 doctrine of Brown v. Annandale, so as to preclude him from obtaining valid letters-patent in England? It may seem a hardship, that the rule should go so far, and, if the rule be so, it may cause many inconveniences; but we conceive that the rule laid down by Brown v. Annandale is, that the invalidity of letterspatent will be the consequence of the mere fact of an tecedent publication of the invention in any other part of the realm, and that there is nothing in that case to authorise the assumption, that publication of any particular kind was meant. However, whether this is a correct view of the rule or not, it is, at any rate, so far from clear that it is incorrect, that it will behove an inventor (when he can) so to arrange matters, if he intends to take out patents in more than one of the three kingdoms, as that the specification of his invention shall not be filed in either kingdom, until after the letters-patent are sealed in the other. If he does not take this precaution, he incurs great risk of losing his right in one or other of his patents, under Brown v. Annandale. Another question of some difficulty and great import they prevailed, would be absolutely frightful. But it is not clear, for all that, that a court of law could escape from them, without overturning settled doctrines of law touching the validity of grants by the Crown. of the Lord Chancellor. The counsel for the appellant having *This doubt seems also to be sanctioned by an observation observed, in his argument in favour of the validity of the grant, "that the respondent claimed to control the prerogative ;-that the said letters-patent ought to have an additional or more restrictive proviso;" the Lord Chancellor said, " If the proviso is made more extensive than the law authorises, it would no doubt be void by the statute." The writer apprehends, that his Lordship was here referring to the very question, whether a proviso, that, if the invention should appear not to be new in England only, the grant should be void, would be a sufficient proviso; or whether it ought not to have gone on to say, that the patent should be void if the invention was not new throughout the case of Brown v. Annandale, the observations of the out the realm. It must be observed, however, that, throughlearned Lords appear, according to Mr. Webster's report, to have been merely by way of passing comments upon the arguments, and were probably scarcely intended to go forth as even dicta. Correspondence. DESCENT AMONG COPARCENERS. TO THE EDITOR OF "THE JURIST." SIR,-I have read the two articles on this subject which recently appeared in THE JURIST, with equal astonishment, and am still at a loss to decide whether J. W.'s conclusion, or J. C. C.'s argument against it, be most worthy of admiration. When J. W. expounds the rules of the common law, and their application to particular cases, no one can desire a sounder or more perspicuous guide; but when he misapplies his common-law deductions to the entirely new circumstances created by an act of Parliament, one is tempted to exclaim "Ah me! what eyes hath Coke put in thy head, J. W. may have proved, for_aught I know, that at the common law an estate could not have been subdivided by the effect of successive descents, in the manner which, according to a very prevalent opinion, is possible under the existing law; but he has omitted to supply one essential link to the chain of his argument, which is, the proof that the kind of successive descent which has been created in certain cases by act of Parliament could have happened under any possible circumstances at common law. The stat. 3 & 4 Will. 4, c. 106, s. 2, enacts, "that in every case descent shall be traced from the purchaser. " The question is, how does this enactment operate in the case of the death of a coparcener who has not created a new estate by purchase in her share? And, for the solution of the question, the act does not afford another explanatory word, except that, in defining the word "purchase," it speaks of "the land" as the subject of descent. It has no preamble; and all that we can gather from the interpretation clause about descent is, that it shall include the flight of an estate upwards to an ancestor, contrary, as Lord Coke suggests, to the laws of gravitation. 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? When the absurd rule of excluding the half-blood was criticised, Blackstone thought it sufficient to reply, with the most benignant serenity, that rules of inheritance are matters of merely arbitrary institution; that the descent of estates to collaterals of the whole blood, instead of to the Grand Turk, was an indulgence for which we have too much reason to be grateful, &c. If such arguments as these are sufficient to vindicate the superhuman wisdom of the common law, surely they are available on behalf of the Legislature, from which, at the present day, when it meddles with the law of property, anything short of downright unintelligible absurdity is accepted as a boon. It having been, in substance, enacted, by words which are incapable of two constructions, that, after an entire estate has descended to the heirs of a certain person, a portion of that estate may descend to the heirs of the same person, it behoves J. W., before he can make use of any authority as to descent at common law, to prove that such a case of successive descent was possible before the statute. Has he done so? I am not hardy enough to dispute his authorities, as J. C. C. does, or to assert, with J. C. C., that such lawyers as Littleton and Coke were likely to forget all their learning, except so far as it might bear on the very question, for the time being, under consideration. I fully admit all that is expressed and implied by J. W.'s authorities; but I deny that they are in point. His first case is that of an estate tail. But whenever an estate tail descends, the descent is, per formam doni, of the entire land to the heir of the donee. On every descent of an estate tail the intent of the donor is observed. But the donor's intent was never expressed with regard to the descent of a portion only of the land. If the enjoyment of a portion of the land according to the gift is hindered by any means, that circumstance cannot be looked at in a question arising exclusively among the issue of the donee. If a daughter has levied a fine, her issue are barred by the fine from claiming contrary to its terms; but that can give them no right to recompense from their kindred. If the share "In every case descent shall be traced" &c. That represented by the fictitious recompense in value. But, of a coparcener has passed by a feigned recovery, it is 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 share in severalty, and under the statute it is the same. It is enacted, "that in every case descent shall be traced from the purchaser." The "case" here is as to the descent of Whiteacre. Descent of what? Of that which is to descend. Question as to the descent of Blackacre there is none, for its owner is alive, and in the actual seisin as heir. Then, can any argument be framed, that shall even appear to refute the plain conclusion, that the heir or heirs of the purchaser of Whiteacre shall inherit Whiteacre? or this deduction therefrom, that, as a daughter of the purchaser of Whiteacre survives, the issue of his deceased daughter cannot be entitled to the entirety of Whiteacre? This being the plain and only meaning of the words employed by the Legislature, and there being no the same individual would also be heir of the same person for the purposes of the descent of an estate in fee simple, is quite erroneous. The coincidence was always accidental. He will not deny this, upon a case being put. Suppose Charles Smith, donee in tail male of Whiteacre, and purchaser in fee of Blackacre, to leave a son John and a daughter Jane by a first wife, and a son James by a second wife. John enters on both estates, and dies without issue male. James will take Whiteacre, and Jane or John's issue female, as the case may be, would, at common law, take Blackacre. Other cases might be put, as of a fee simple by descent from the mother, &c. The case which J. W.'s argument requires, of a descent at common law of a moiety of an estate in fee simple to the heir of the purchaser of the entirety, cannot be found. |