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June 16 at half-past 11, Court of Bankruptcy, London. SPENCE ON THE EQUITABLE JURISDICTION OF THE John Ellis, Little Clacton, Essex, farmer, June 18 at 12,

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[graphic]

No. 492_Vol. X.
JUNE 13, 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 ...

SA. GORDON, Esq. of the Inner Vice-Chancellor Wigram's SF. FISHER, Esq. of Lincoln's
1 Temple, Barrister at Law. Court ...... ....1 Inn, Barrister at Law.
Tenison EDWARDS, Esq. of the Court of Queen's Bench {

SG.J.P.SMITH, Esq. of the Inner Privy Council ........ 1 Inner Temple, Barrister at Law.

"2 Temple, Barrister at Law. The Lord Chancellor's S A. GORDON, Esq. of the Inner

Queen's Bench Bail Court { A. V. KIRWAN, Esq. of Gray's

" Inn, Barrister at Law. Court ..............l Temple, Barisrter at Law.

Court of Common Pleas, D. Power, Esq. of Lincoln's SG. Y. Robson, Esq. of the Inner

including l Master of the Rolls Court

Inn; and our Temple, Barrister at Law.

Appeals under Registra- / W. PATERSON, Esq. of Gray's

tion of Voters Act....) Inn, Barristers at Law. (TENISON EDWARDS, Esq. of the Vice-Chancellor of Eng

SW.M. Best, Esq. of Gray's Inn,

Court of Exchequer ....
Inner Temple, and

Court of Dacheques .. Barrister at Law. land's Court ........ CHARLES MARETT, Esq. of the Ecclesiastical and Admi. SJ. P. DEANE, D.C.L. of Doctors' l Inner Temple, Barristers at Law.

ralty Courts ........1 Commons. Vice-Chancellor Knights W.W. COOPER, Esq. of the Inner |

er || Court of Review .....

SW.W.COOPER, Esq. of the Inner Bruce's Court........1 Temple, Barrister at Law.

*** Temple, Barrister at Law.

LONDON, JUNE 13, 1846.

and allowing another to step in before him and obtain

that protection, A QUESTION of some practical importance, upon which, The notion of hardship should be, therefore, wholly We believe, no decision is to be found, and which not thrown out of consideration, and the question consiunfrequently arises in reference to inventions of the dered solely upon the language of the statute and of smaller class, is this: whether, if A. has invented some the letters-patent, so far as the letters-patent are not manufacture, and has used it for his own use merely, inconsistent with the statute. The language of 3 without making it public, but without any specific patent is, that authority is granted to the patentee, and concealment, and B. afterwards invents the same thing such as he shall agree with, and no others, to make, uses, and takes out a patent for it, A. will be liable to be re exercise, and vend the invention; and all others are strained from using it for his own use and conve-commanded not to make, use, or put in practice the nience merely, not vending or otherwise making a invention. There is a special proviso that the grant is profit by it.

not to prejudice any previous patent, but none that is The question must, in the absence of direct decision, is not to prejudice any previous inventor who has depend upon the language and spirit of the Statute of neither taken out a patent, nor published the invention Monopolies and of the letters-patent.

There can, of course, be no doubt that the private No doubt, to any person not accustomed to legal rea- use of an invention comes within the literal language soning, or to consider the principles of laws, it seems a of the patent-restricting use, as well as making and 'hardship bordering upon gross absurdity, that, if I vending. But it is first & question, whether, by the have first invented something, any law should give to word “using," the patent does not mean only using in another, the privilege, not only of exclusive enjoyment trade; and, secondly, assuming it to mean any using, then as against the rest of the world, but of excluding me what is meant by “no other person." Upon this the from the enjoyment of the production of my own brain. language of the Statute of Monopolies will throw light. But, if we recollect that there is no such thing as an The statute provides that its abolition of all monopolies abstract right of property; that all rights of enjoying shall not extend to letters-patent and grants of priviproperty are the creatures of the civil law; and that, in leges for the term of fourteen years or under, hereafter a thousand instances, society exercises, without any to be made, &c. to the true and first inventor and innotion being entertained of its being a hardship, the ventors of such manufactures which others at the time right of curtailing and modifying in the individual, the of making such letters-patent and grants shall not use. enjoyment of property, where primâ facie his right as Now, the general rule of law resulting from a variety absolutely appertains to him, as the right of a man to of cases is, that the user contemplated by the statute, enjoy the production of his own brain ;-we shall see which will avoid a patent, is user amounting to publie that no peculiar hardship and no injustice can be com- cation; that is, user which goes the length of putting plained of, if it should turn out to be the rule established it in the power of the public to obtain knowledge, if by the civil law, that an inventor loses even his right of not actually to give it knowledge, of the invention. :personal enjoyment,, by neglecting to avail himself of In Morgan v. Seaward, (2 Mee. & W.670. Jeed, the conditions on which the law offers him protection, it was held, that, where (the subject of 1 patent

Vol. X.

being steam-boat paddle-wheels) two pairs of the has not a right to use that name or mark for the purwheels were made for the inventor before he obtained pose of deception, and in order to attract to himself his patent, by his own people, and were packed up that course of trade or that custom which, without that

improper act, would have flowed to the person who first and shipped to a foreign port, and there used by a

used by used, or was alone in the habit of using, the particular company in which the inventor was a partner, even

name or mark." And in a subsequent case * the same that was not user so as to invalidate the patent. It is learned judge again expressed himself to the same true, the wheels were made under an injunction of se- effeet: “No man has a right," said his Lordship, " to crecy in the inventor's people; but that would have sell his own goods as the goods of another. You may made no difference, if there had been a bona fide deal. | express the same principle in a different form, and say. ing with the wheels as a matter of trading gain; and adopt and bear symbols to which he has no peculiar or

that no man has a right to dress himself in colours, or the court put the decision expressly upon this, that exclusive right, and thereby personate another person, there was no public sale, and no gain or profit proved for the purpose of inducing the public to suppose either to be derived by the inventor. If, then, the above be that he is that other person, or that he is connected the true construction of the word " use" in the statute,

with and selling the manufacture of such other person, for the purpose of testing its effect in avoiding a patent,

while he is really selling his own. It is perfectly mait is & correct inference to say that such must be its a very gross fraud.

nifest that to do these things is to commit a fraud, and

I stated, upon a former occasion, construction when the question is, not whether a patent that, in my opinion, the right which any person may is avoided, but whether a patent is infringed; for, if have to the protection of this court, does not depend the user in the sort of case we are discussing, is such as upon any exclusive right which he may be supposed to would not avoid the subsequently-granted patent, the

have to a particular name or to a particular form of

| words. His right is to be protected against fraud, and reason is, that such user is not inconsistent with the

fraud may be practised against him by means of a name, patent, and, therefore, it is no infringement.

though the person practising it may have a perfect right The question will, therefore, be one of mixed fact and to use that name, provided he does not accompany the use law. It will first be to be ascertained, whether the use of it with such other circumstances as to effect a fraud of the invention by the first inventor has been a use so upon others.” Accordingly, in Croft v. Day, his Lord: far public, that the public might by means of it, have

ship, being of opinion, that, although the labels used by

the defendant upon the bottles of blacking sold by him obtained knowledge of the invention. If it has, then

were in many points different from the plaintiff's labels, the subsequently-obtained patent will be void; but if it yet there was sufficient to mislead the ordinary run of has not,-if it has been private, and without gain by persons, and that the object of the defendant was to way of trade,-then it seems difficult to contend that persuade the public that his establishment was in some the patentee will have any right to prevent the conti

way or other connected with the plaintiff's, granted an

injunction restraining the defendant from imitating the nuance of such a mode of user; because, the statute

plaintiff's labels. The order made was very specially confining the privilege to such inventions as others shall

worded, with a view to prevent the defendant from not have used before, the word “ others” in the patent eluding the jurisdiction by colourable alteration. must be held only to apply to those whose user has In Perry v. Truefitt t, the point on which the case been such as to avoid the patent. The patentee, there was principally argued was, whether, a certain unguent, fore, could not bring the antecedent inventor within

sold by the plaintif, having acquired a reputation under the class that he has a right to restrain, without put

the name of “ Perry's medicated Mexican Balm," the

defendant was at liberty to sell an unguent for the ting himself out of court, and shewing on the face of

same purpose, under the designation of “Truefitt's his own statement that he has no title.

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 unPOINTS ON THE LAW AND PRACTICE OF

guent, but he simply took the sort of fancy designaINJUNCTIONS.

tion adopted by the plaintiff, of medicated Mexican

balm. And the question was, whether, in the absence I. Injunctions to restrain the Use of Trade Marks. of fraud, the plaintiff had such a right in that designaThe principle upon which injunctions are granted to

tion, as to prevent the defendant's use of it. This the restrain the imitation of trade marks, long exclusively

| court held to be a legal question; and if that had been used by a particular trader, so as to connect his name or

the only point, the court would, it seems, have put the trading concern, with the reputation acquired in the

matter in a course for trial of the legal right. But the market by the goods bearing the particular mark, is

plaintiff had also, in advertisements respecting his methus expressed by Lord Langdale, M. R., in Perry v.

dicated Mexican balm, put forth false representations to Truefitt*, “I think that the principle on which both

the public, and thereby precluded himself from obtain

The motion the courts of law and equity proceed in granting relief | ing relief in equity in the first instance. and protection in cases of this sort is very well under

was ordered to stand over, with liberty to the plaintiff stood. A man is not to sell his own goods under the

to bring an action; and some months afterwards the

bill was dismissed with the consent of the plaintiff. pretence that they are the goods of another man; he cannot be permitted to practise such a deception, nor to

It will be observed, that, both in Perry v. Truefitt and use the means which contribute to that end. He can

Croft v. Day, Lord Langdale took occasion pointedly to not, therefore, be allowed to use names, marks, letters,

| advert to the doctrine of Millington v. Fors, and to exor other indicia by which he may induce purchasers to

press his opinion, that an exclusive right of property believe that the goods which he is selling are the ma

cannot be acquired in a name or mark. “The case of nufacture of another person. I own it does not seem

Millington v. Fox," said his Lordship, in Truefitt v. to me that a man can acquire a property merely in a

Perry, (7 Bea. 73), “ seems to have gone this lengti, name or mark; but, whether he has or not a property * Croft v. Day, 7 Beav. 84. See also Gout v. Aleploglii, o in the name or the mark, I have no doubt that another Beav. 69, n. * 6 Beay. 66.

t 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 y. Fot. 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 after

wardst. The judgment in this case, and the learned II. As to reading Affidavits against the Answer on a Reporter's notes contain nearly all the learning Motion to dissolve an Injunction. this point.

C. Š. D. It has generally been understood, that, on moving to dissolve the common injunction, if facts and circum

THE LAW stances alleged by the bill are ignored by the answer,

RELATING TO THE affidavits cannot be read on the part of the plaintiff to

DISPOSITION OF REVERSIONARY INTERESTS OF substantiate the allegations of the bill. This doctrine

MARRIED WOMEN IN CHATTELS PERSONAL. has received some discountenance from the case of Ord F, White. In that case facts essential to the plaintiff's

BY JOSIAH W. SMITH, B.C.L.,

OF LINCOLN'S INX, BARRISTER AT LAW, 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

Executory Interests. the Rolls thought (though it was not necessary to decide the point, as he granted the injunction irrespectively of However engrossed with other labors the lawyer may the affidavits tendered by the plaintiff) that in such a be, this subject is one of such great practical importance, case affidavits may be read by the plaintiff to prove the that any attempt to clear away its difficulties can hardly allegations of the bill. The case of Castellain v. Blu- fail to engage his attention. Such an attempt is made menthalt was not cited in Ord v. White.

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 anthority 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, ob- | serving that he had not decided the point, and neither

PART I. recalling nor reasserting the opinion that he had there The Specific Points established by the Cases. expressed. The case of Edwards v. Jones & seems to have set

The following points appear to be established by the

* decisions with reference to the disposition of quasi relled the point, although not upon an injunction mo

mainders and other future interests, or, as they are com. tion. 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 ignoring the fact of the alleged death. It was con

effect on the determination of a life interest in another

person :tended, on the authority of Ord v. White and other

I. A vested reversionary interest of a married woman cases, that the affidavit was admissible; but the Vice

in personalty, if bequeathed or settled to her separate Chancellor of England held the affidavit inadmissible,

use, may be assigned by her as effectually as a reverand, on appeal, Lord Lyndhurst, C., affirmed the decision. “An affidavit,” said his Lordship, “was offered to

sionary interest may be assigned by a feme sole; be

cause, as to property so bequeathed or settled, whether prove the fact that Howell Powell (the person whose death it was material to ascertain) was alive at the time

in possession or otherwise, she is regarded as a feme

sole. of the death of the intestate. Now, where the question

So that, where an annuity is devised to a married woat issue is not the existence of a document, but a fact, I think that an affidavit cannot be admitted to prove

| man for life for her separate use, charged on land after

the decease of a tenant for life of the land, and she and it in an interlocutory application like the present,

her husband assign it by way of mortgage, she will be though the answer neither admits nor denies it. There

bound by such assignment after her husband's death. is an apparent discrepancy between the authorities on

Major v. Lansley, 2 Russ. & My. 355. the subject, but I think that is the fair result of them.”

And where a married woman has a reversionary inIt has been also generally understood, with reference

terest in personalty for her separate use, she may efto special injunctions, that, if a motion is made for an

fectually dispose of it to a purchaser, without the neinjunction upon the answer of the defendant, the plaintiff cannot read affidavits against the answer upon mat

cessity of any examination in court. Sturgis v. Corp,

13 Ves. 190. ter of title. But where a notice of motion was given

II. But where a contingent reversionary interest in before answer, and affidavits filed in support of it, and I,

personalty is given to a married woman in lieu of dower the motion stood over at the request of the defendant

* Gibson v. Nicol, 6 Beav. 422. See also Maden v. Vevers, * 3 Beav. 357.

+ 12 Sim. 47.

5 Beav. 503. 3 Beav. 373. § 13 Sim, 632; 1 Phil. 501.

Manser V. Jenner, 2 Hare, 600.

B

by her husband, to take effect as a provision for her in 3. And where personal property is bequeathed in trust case of her surviving him, a court of equity will not for a person for life, with remainder, as to a part, in order the property to be paid over to the husband and trust for another person for life; with remainder to a wife on their joint application, even though the rever- woman who afterwards marries; and, after her marsionary interest is given for her separate use, and though riage and the death of the first taker, such property is they are both of advanced age, and in want of the com- settled upon her children, in pursuance of articles enmon necessaries of life. Batt v. Cuthbertson, 2 Irish tered into before her marriage, when she was under age; Rep. 200; 4 Dru. & W. 392.

and then, before the property is transferred from the III. A reversionary interest of a married woman in names of the executors of the will into the names of the personalty not bequeathed or settled for her separate trustees of the settlement, he dies, leaving his wife suruse, cannot, while it continues reversionary, be disposed viving ; the trusts of the settlement do not bind that of by her and her husband, or either of them, or by part to which the wife, at the time of the settlement, act of law, whether voluntarily or for valuable con- was entitled in remainder on the death of the second sideration, and whether to a purchaser or to a general taker; nor are they binding even on that part to assignee in bankruptcy or insolvency, or be merely which, at the time of the settlement, the wife was encharged, so effectually as to bind the wife, if the husband titled in possession, in consequence of the death of the dies in her lifetime without having reduced it into pos first taker, notwithstanding it might and ought to have session, and she then chooses to assert her right to it, been transferred into the names of the trustees of the even if it ceases to be reversionary before his death; settlement in the husband's lifetime, and notwithstandalthough it may be effectually disposed of or charged, ing the maxim, that equity looks on that as done which except in respect of this contingency. For, as Sir Tho- ought to have been done. Elwyn v. Williams, 7 Jur. mas Plumer remarked in Purdew v. Jackson, “ The 337. wife's right is not devested by the marriage. The chose 4. And where a legacy is given to a woman, who in action continues to belong to her, unless the husband afterwards marries, to be paid after the decease of ancan and does reduce it into possession, and thereby other person, and she and her husband assign the legacy makes it cease to be a chose in action. The husband for valuable consideration in the lifetime of that person, has not, on the marriage, any immediate property in and the husband survives such person, but dies leaving the chose in action; he has only the right to reduce it his wife surviving, without having reduced the legacy into possession, if it be in a state capable of being so into possession, the assignment is void against the wife. reduced. Reduction into possession is a necessary and Ashby v. Ashby, 1 Coll. 553. indispensable preliminary to the husband's having any 5. And where a sum of money is bequeathed in trust right of property in himself, or to his being able to for a person for life, with remainder to a woman, who convey any right of property to another.” (1 Russ. marries, and whose husband becomes bankrupt, and 66). "For the property in a personal chattel does not then, after surviving the tenant for life, dies without become complete till possession is obtained.” (Id. 14). having reduced the legacy into possession, his assignees " And to say that the assignment of a chose in action, will not be entitled as against his surviving wife. Gay. which is at the time incapable of being reduced into ner v. Wilkinson, 2 Dick. 491. possession, is to be construed as a reduction of it into 6. And where stock is limited by deed in trust for a possession, is to ascribe to the assignment the effect of person for life, with remainder to a woman, who subsetotally transforming the nature of the thing assigned.” quently marries, and joins with her husband in assigning (Id. 45). Hence,

her reversionary interest for valuable consideration, and 1. Where stock is limited by will in trust for a per- a general assignment is afterwards made of his property son for life, with remainder (not by way of separate use) | under the Insolvent Debtors Act, and, after surviving in trust for a married woman, or a woman who after the tenant for life, he dies without having done any other wards marries, and she and her husband join in assign- act to reduce the stock into possession; the wife is ening it to a purchaser for valuable consideration, and titled to it as against both the particular assignee and both the wife and the tenant for life outlive the hus- the general assignee; for the assignment only puts the band, such assignment will not be valid against the assignee of the husband in the same situation as the right of the wife. (Purdew v. Jackson, 1 Russ. 1; husband. Hornsby v. Lee, 2 Mad. 16. Honner v. Morton, 3 Russ. 65; Watson v. Dennis, 3 Where, however, personal property is bequeathed to Russ. 90). For, in this case, as the husband dies be- a married woman, by way of remainder after a life infore the tenant for life, and, therefore, before the pro- terest in another, and the husband becomes bankrupt, perty is even capable of being reduced into possession, and then the tenant for life dies, and afterwards the it continues in the wife, or, as the phrase is, it sur wife dies, and he takes out administration to her; the vives to the wife, unaffected by the coverture and the property cannot be retained by the husband, but beassignment made during the coverture.

longs to his assignees, because the husband had an inAccording to the decision, indeed, in the case of Atkins cipient right to the chose in action at the time of his y. Dawbury, (Gilb. Eq. Rep. 88), where a legacy is given bankruptcy, and the event happened on which he was to a married woman, payable out of a reversion in land enabled to reduce it into possession. Ripley y. Woods, expectant on an estate for life, and the husband assigns 2 Sim. 165. the legacy in trust for his children, and predeceases his 7. Where personal property is bequeathed upon trust wife and the tenant for life, the assignment is good for a person for life, with remainder to a woman who against the wife in equity, although not at law; and marries, and afterwards separates from her husband, though this legacy is charged on a reversion, yet, being and, by a deed of separation, she assigns part of her regiven in præsenti, it carries interest from the testator's versionary interest to the husband, such assignment is death. But, as Sir Thomas Plumer, M. R., remarked not binding upon her after surviving her husband. in Purdew v. Jackson, (1 Russ. 48), “Atkins v. Daw- Stamper v. Barker, 5 Mad. 157. bury is abandoned, and is admitted not to be law.” 1 8. And where stock is limited by a marriage settle

2. Where a married woman is entitled to stock in ment upon trust for the separate use of the wife during remainder after a life interest in another person, and her the joint lives of the husband and wife; with remainder, husband assigns her interest, becomes bankrupt, and in case she shall survive him, upon trust for her, her dies in the lifetime of the tenant for life, leaving his executors, administrators, and assigns, but, in case she wife surviving, she is entitled against the particular as- shall die in his lifetime, upon trust for such persons signee and the assignees under the commission. Grey v. as she shall by will appoint, and, in default thereof, Kentish, 1 Atk. 280.

| upon trust for her, her executors, administrators, and

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