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GORDON, Esq. of the Inner Vice-Chancellor Wigram's House of Lords {^ A QUESTION of Some practical importance, upon which, we believe, no decision is to be found, and which not unfrequently arises in reference to inventions of the smaller class, is this: whether, if A. has invented some manufacture, and has used it for his own use merely, without making it public, but without any specific concealment, and B. afterwards invents the same thing and takes out a patent for it, A. will be liable to be restrained from using it for his own use and convenience merely, not vending or otherwise making a profit by it. The question must, in the absence of direct decision, depend upon the language and spirit of the Statute of Monopolies and of the letters-patent. No doubt, to any person not accustomed to legal reasoning, or to consider the principles of laws, it seems a hardship bordering upon gross absurdity, that, if I have first invented something, any law should give to another, the privilege, not only of exclusive enjoyment as against the rest of the world, but of excluding me from the enjoyment of the production of my own brain. But, if we recollect that there is no such thing as an abstract right of property; that all rights of enjoying property are the creatures of the civil law; and that, in a thousand instances, society exercises, without any notion being entertained of its being a hardship, the right of curtailing and modifying in the individual, the enjoyment of property, where primâ facie his right as absolutely appertains to him, as the right of a man to enjoy the production of his own brain;-we shall see that no peculiar hardship and no injustice can be complained of, if it should turn out to be the rule established by the civil law, that an inventor loses even his right of personal enjoyment,, by neglecting to avail himself of the conditions on which the law offers him protection, VOL. X. V Court .... F. FISHER, Esq. of Lincoln's Court of Queen's Bench Temple, Barrister at Law. {A. Y. KIRWAN, Esq. of Gray's Inn, Barrister at Law. D. PoWER, Esq. of Lincoln's (W. PATERSON, Esq. of Gray's Ecclesiastical and Admi- f J. P. DEANE, D.C.L. of Doctors' ralty Courts Court of Review ...... { Commons. and allowing another to step in before him and obtain that protection. The notion of hardship should be, therefore, wholly thrown out of consideration, and the question considered solely upon the language of the statute and of the letters-patent, so far as the letters-patent are not inconsistent with the statute. The language of a patent is, that authority is granted to the patentee, and such as he shall agree with, and no others, to make, use, exercise, and vend the invention; and all others are commanded not to make, use, or put in practice the invention. There is a special proviso that the grant is not to prejudice any previous patent, but none that it is not to prejudice any previous inventor who has neither taken out a patent, nor published the invention. There can, of course, be no doubt that the private use of an invention comes within the literal language of the patent-restricting use, as well as making and vending. But it is first a question, whether, by the word "using," the patent does not mean only using in trade; and, secondly, assuming it to mean any using, then what is meant by "no other person." Upon this the language of the Statute of Monopolies will throw light. The statute provides that its abolition of all monopolies shall not extend to letters-patent and grants of privileges for the term of fourteen years or under, hereafter to be made, &c. to the true and first inventor and inventors of such manufactures which others at the time of making such letters-patent and grants shall not use. Now, the general rule of law resulting from a variety of cases is, that the user contemplated by the statute, which will avoid a patent, is user amounting to publication; that is, user which goes the length of putting. it in the power of the public to obtain knowledge, if not actually to give it knowledge, of the invention. In Morgan v. Seaward, (2 Mee. & W. 545), indeed, it was held, that, where (the subject of the patent EWSPA being steam-boat paddle-wheels) two pairs of the wheels were made for the inventor before he obtained his patent, by his own people, and were packed up and shipped to a foreign port, and there used by a company in which the inventor was a partner, even that was not user so as to invalidate the patent. It is true, the wheels were made under an injunction of secrecy in the inventor's people; but that would have made no difference, if there had been a bonâ fide deal-express the same principle in a different form, and say, ing with the wheels as a matter of trading gain; and the court put the decision expressly upon this, that there was no public sale, and no gain or profit proved to be derived by the inventor. If, then, the above be the true construction of the word "use" in the statute, for the purpose of testing its effect in avoiding a patent, it is a correct inference to say that such must be its construction when the question is, not whether a patent is avoided, but whether a patent is infringed; for, if the user in the sort of case we are discussing, is such as would not avoid the subsequently-granted patent, the reason is, that such user is not inconsistent with the patent, and, therefore, it is no infringement. has not a right to use that name or mark for the pur- a The question will, therefore, be one of mixed fact and law. It will first be to be ascertained, whether the use of the invention by the first inventor has been a use so far public, that the public might by means of it, have obtained knowledge of the invention. If it has, then the subsequently-obtained patent will be void; but if it has not,-if it has been private, and without gain by way of trade, then it seems difficult to contend that the patentee will have any right to prevent the conti-way or other connected with the plaintiff's, granted an nuance of such a mode of user; because, the statute confining the privilege to such inventions as others shall not have used before, the word "others" in the patent must be held only to apply to those whose user has been such as to avoid the patent. The patentee, there fore, could not bring the antecedent inventor within the class that he has a right to restrain, without putting himself out of court, and shewing on the face of his own statement that he has no title. injunction restraining the defendant from imitating the plaintiff's labels. The order made was very specially worded, with a view to prevent the defendant from eluding the jurisdiction by colourable alteration. In Perry v. Truefitt+, the point on which the case was principally argued was, whether, a certain unguent sold by the plaintiff, having acquired a reputation under defendant was at liberty to sell an unguent for the the name of "Perry's medicated Mexican Balm,” the same purpose, under the designation of "Truefitt's medicated Mexican Balm." The evidence shewed that Truefitt (the defendant) did not attempt to induce the belief that what he was selling was the plaintiff's un POINTS ON THE LAW AND PRACTICE OF guent, but he simply took the sort of fancy designa INJUNCTIONS. I. Injunctions to restrain the Use of Trade Marks. The principle upon which injunctions are granted to restrain the imitation of trade marks, long exclusively used by a particular trader, so as to connect his name or trading concern, with the reputation acquired in the market by the goods bearing the particular mark, is thus expressed by Lord Langdale, M. R., in Perry v. Truefitt, "I think that the principle on which both the courts of law and equity proceed in granting relief and protection in cases of this sort is very well understood. A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practise such a deception, nor to use the means which contribute to that end. He cannot, therefore, be allowed to use names, marks, letters, or other indicia by which he may induce purchasers to believe that the goods which he is selling are the manufacture of another person. I own it does not seem to me that a man can acquire a property merely in a name or mark; but, whether he has or not a property in the name or the mark, I have no doubt that another * 6 Beav. 66. tion adopted by the plaintiff, of medicated Mexican † 6 Bea. 66. Pidding v. Howe, 8 Sim. 477. § 3 My. & C. 338. that the deception need not be intentional; and that a that he might put in his answer; and after he had done man, though not intending any injury to another, shall so, the plaintiff filed further affidavits in respect of not be allowed to adopt the mark by which the goods title, contradicting the answer: it was held, that, of another are designated, if the effect of adopting them under those circumstances, the answer must be treated would be to prejudice the trade of such other person. as an affidavit, and, consequently, the further affidavits I am not aware that any previous case carried the prin- were admissible. But, if a motion for a special inciple to that extent." The writer believes that there is junction is made after the answer has come in, (the not any case since Perry v. Truefitt and Day v. Croft motion not having stood over for the defendant's concarrying the principle so far as it was carried in Mil-venience, and that he may put his answer in), and no lington v. Fox. It will not, however, be forgotten, that affidavits were filed before the answer, affidavits filed that case was most fully argued, and that the judgment after the answer cannot be read in support of the mois one of the most careful of the many elaborate judg- tion, even as to matters not connected with title; and ments delivered by the eminently cautious judge who that, irrespectively of the question whether the notice pronounced it. was given before the answers were put in, or afterwardst. The judgment in this case, and the learned Reporter's notes, contain nearly all the learning upon this point. C. Š. D. II. As to reading Affidavits against the Answer on a THE LAW MARRIED WOMEN IN CHATTELS PERSONAL. It has generally been understood, that, on moving to dissolve the common injunction, if facts and circumstances alleged by the bill are ignored by the answer, affidavits cannot be read on the part of the plaintiff to DISPOSITION OF REVERSIONARY INTERESTS OF substantiate the allegations of the bill. This doctrine has received some discountenance from the case of Ord V. White. In that case facts essential to the plaintiff's case were alleged in the bill, and by the answer neither Editor of Fearne's Contingent Remainders, and Author of a Treatise on admitted nor denied, but simply ignored. The Master of the Rolls thought (though it was not necessary to decide the point, as he granted the injunction irrespectively of the affidavits tendered by the plaintiff) that in such a case affidavits may be read by the plaintiff to prove the allegations of the bill. The case of Castellain v. Blumenthalt was not cited in Ord v. White. Executory Interests. However engrossed with other labors the lawyer may be, this subject is one of such great practical importance, that any attempt to clear away its difficulties can hardly fail to engage his attention. Such an attempt is made in the present paper; not in the spirit of disputation, In Barwell v. Barwell the defendant by her answer although the subject presents such ample scope for it, stated, as to certain facts, that she had been informed and but, on the contrary, with the determination to avoid believed it to be true, &c.; and Ord v. White was cited as all personal controversy, and simply to reconcile the an authority for reading affidavits on behalf of the plain-cases, as far as possible; to enunciate what, from a close tiff to contradict those statements in the answer. But consideration of the law, the writer believes to be the Lord Langdale, M. R., refused to hear them, observing truth; and to defend the doctrine of the cases, so far that no one ever doubted that affidavits are inadmissible, as they are reconcileable, from the objections which are when the defendant distinctly states his belief. His commonly urged against them. Lordship referred to his dictum in Ord v. White, observing that he had not decided the point, and neither recalling nor reasserting the opinion that he had there expressed. person : PART I. in personalty, if bequeathed or settled to her separate use, may be assigned by her as effectually as a reversionary interest may be assigned by a feme sole; because, as to property so bequeathed or settled, whether in possession or otherwise, she is regarded as a feme I. A vested reversionary interest of a married woman The Specific Points established by the Cases. The case of Edwards v. Jones§ seems to have set- decisions with reference to the disposition of quasi reThe following points appear to be established by the tled the point, although not upon an injunction mo-mainders and other future interests, or, as they are comtion. In that case, on a motion for a receiver, monly termed, reversionary interests, in stock, money, among other things, an affidavit was tendered by the and other chattels personal, limited to women married plaintiff to prove the death of a particular person, (the at the time, or women who afterwards marry, to take period of whose death was very material), the answer effect on the determination of a life interest in another ignoring the fact of the alleged death. It was contended, on the authority of Ord v. White and other cases, that the affidavit was admissible; but the ViceChancellor of England held the affidavit inadmissible, and, on appeal, Lord Lyndhurst, C., affirmed the deci sion. “An affidavit,” said his Lordship, "was offered to prove the fact that Howell Powell (the person whose death it was material to ascertain) was alive at the time of the death of the intestate. Now, where the question at issue is not the existence of a document, but a fact, I think that an affidavit cannot be admitted to prove it in an interlocutory application like the present, though the answer neither admits nor denies it. There is an apparent discrepancy between the authorities on the subject, but I think that is the fair result of them." It has been also generally understood, with reference to special injunctions, that, if a motion is made for an injunction upon the answer of the defendant, the plaintiff cannot read affidavits against the answer upon matter of title. But where a notice of motion was given before answer, and affidavits filed in support of it, and the motion stood over at the request of the defendant sole. So that, where an annuity is devised to a married wothe decease of a tenant for life of the land, and she and man for life for her separate use, charged on land after her husband assign it by way of mortgage, she will be bound by such assignment after her husband's death. Major v. Lansley, 2 Russ. & My. 355. terest in personalty for her separate use, she may efAnd where a married woman has a reversionary incessity of any examination in court. Sturgis v. Corp, fectually dispose of it to a purchaser, without the ne13 Ves. 190. II. But where a contingent reversionary interest in personalty is given to a married woman in lieu of dower * Gibson v. Nicol, 6 Beav. 422. See also Maden v. Vevers, 5 Beav. 503. † Manser v. Jenner, 2 Hare, 600. by her husband, to take effect as a provision for her in case of her surviving him, a court of equity will not order the property to be paid over to the husband and wife on their joint application, even though the reversionary interest is given for her separate use, and though they are both of advanced age, and in want of the common necessaries of life. Batt v. Cuthbertson, 2 Irish Rep. 200; 4 Dru. & W. 392. III. A reversionary interest of a married woman in personalty not bequeathed or settled for her separate use, cannot, while it continues reversionary, be disposed of by her and her husband, or either of them, or by act of law, whether voluntarily or for valuable consideration, and whether to a purchaser or to a general assignee in bankruptcy or insolvency, or be merely charged, so effectually as to bind the wife, if the husband dies in her lifetime without having reduced it into possession, and she then chooses to assert her right to it, even if it ceases to be reversionary before his death; although it may be effectually disposed of or charged, except in respect of this contingency. For, as Sir Thomas Plumer remarked in Purdew v. Jackson, "The wife's right is not devested by the marriage. The chose in action continues to belong to her, unless the husband can and does reduce it into possession, and thereby makes it cease to be a chose in action. The husband has not, on the marriage, any immediate property in the chose in action; he has only the right to reduce it into possession, if it be in a state capable of being so reduced. Reduction into possession is a necessary and indispensable preliminary to the husband's having any right of property in himself, or to his being able to convey any right of property to another." (1 Russ. 66). "For the property in a personal chattel does not become complete till possession is obtained." (Id. 14). "And to say that the assignment of a chose in action, which is at the time incapable of being reduced into possession, is to be construed as a reduction of it into possession, is to ascribe to the assignment the effect of totally transforming the nature of the thing assigned." (Id. 45). Hence, 1. Where stock is limited by will in trust for a person for life, with remainder (not by way of separate use) in trust for a married woman, or a woman who afterwards marries, and she and her husband join in assigning it to a purchaser for valuable consideration, and both the wife and the tenant for life outlive the husband, such assignment will not be valid against the right of the wife. (Purdew v. Jackson, 1 Russ. 1; Honner v. Morton, 3 Russ. 65; Watson v. Dennis, 3 Russ. 90). For, in this case, as the husband dies before the tenant for life, and, therefore, before the property is even capable of being reduced into possession, it continues in the wife, or, as the phrase is, it survives to the wife, unaffected by the coverture and the assignment made during the coverture. According to the decision, indeed, in the case of Atkins v. Dawbury, (Gilb. Eq. Rep. 88), where a legacy is given to a married woman, payable out of a reversion in land expectant on an estate for life, and the husband assigns the legacy in trust for his children, and predeceases his wife and the tenant for life, the assignment is good against the wife in equity, although not at law; and though this legacy is charged on a reversion, yet, being given in præsenti, it carries interest from the testator's death. But, as Sir Thomas Plumer, M. R., remarked in Purdew v. Jackson, (1 Russ. 48), "Atkins v. Dawbury is abandoned, and is admitted not to be law." 2. Where a married woman is entitled to stock in remainder after a life interest in another person, and her husband assigns her interest, becomes bankrupt, and dies in the lifetime of the tenant for life, leaving his wife surviving, she is entitled against the particular assignee and the assignees under the commission. Grey v. Kentish, 1 Atk. 280. 3. And where personal property is bequeathed in trust for a person for life, with remainder, as to a part, in trust for another person for life; with remainder to a woman who afterwards marries; and, after her marriage and the death of the first taker, such property is settled upon her children, in pursuance of articles entered into before her marriage, when she was under age; and then, before the property is transferred from the names of the executors of the will into the names of the trustees of the settlement, he dies, leaving his wife surviving; the trusts of the settlement do not bind that part to which the wife, at the time of the settlement, was entitled in remainder on the death of the second taker; nor are they binding even on that part to which, at the time of the settlement, the wife was entitled in possession, in consequence of the death of the first taker, notwithstanding it might and ought to have been transferred into the names of the trustees of the settlement in the husband's lifetime, and notwithstanding the maxim, that equity looks on that as done which ought to have been done. Elwyn v. Williams, 7 Jur. 337. 4. And where a legacy is given to a woman, who afterwards marries, to be paid after the decease of another person, and she and her husband assign the legacy for valuable consideration in the lifetime of that person, and the husband survives such person, but dies leaving his wife surviving, without having reduced the legacy into possession, the assignment is void against the wife. Ashby v. Ashby, 1 Coll. 553. 5. And where a sum of money is bequeathed in trust for a person for life, with remainder to a woman, who marries, and whose husband becomes bankrupt, and then, after surviving the tenant for life, dies without having reduced the legacy into possession, his assignees will not be entitled as against his surviving wife. Gayner v. Wilkinson, 2 Dick. 491. 6. And where stock is limited by deed in trust for a person for life, with remainder to a woman, who subsequently marries, and joins with her husband in assigning her reversionary interest for valuable consideration, and a general assignment is afterwards made of his property under the Insolvent Debtors Act, and, after surviving the tenant for life, he dies without having done any other act to reduce the stock into possession; the wife is entitled to it as against both the particular assignee and the general assignee; for the assignment only puts the assignee of the husband in the same situation as the husband. Hornsby v. Lee, 2 Mad. 16. Where, however, personal property is bequeathed to a married woman, by way of remainder after a life interest in another, and the husband becomes bankrupt, and then the tenant for life dies, and afterwards the wife dies, and he takes out administration to her; the property cannot be retained by the husband, but belongs to his assignees, because the husband had an incipient right to the chose in action at the time of his bankruptcy, and the event happened on which he was enabled to reduce it into possession. Ripley v. Woods, 2 Sim. 165. 7. Where personal property is bequeathed upon trust for a person for life, with remainder to a woman who marries, and afterwards separates from her husband, and, by a deed of separation, she assigns part of her reversionary interest to the husband, such assignment is not binding upon her after surviving her husband. Stamper v. Barker, 5 Mad. 157. 8. And where stock is limited by a marriage settlement upon trust for the separate use of the wife during the joint lives of the husband and wife; with remainder, in case she shall survive him, upon trust for her, her executors, administrators, and assigns, but, in case she shall die in his lifetime, upon trust for such persons as she shall by will appoint, and, in default thereof, upon trust for her, her executors, administrators, and |