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Practical Points.-Patent-First Inventor-Post Nuptial Settlement. where the courts have held that an order plea, evidence was given of a letter addressed which was equivalent to an assignment of a by Mr. Finlayson to the editor of the London demand was a sufficient consideration to sup- Journal of Arts in 1825, and two letters adport an accord and satisfaction, yet upon the dressed by Mr. Heard to the secretary of the principles of good faith, and benefit to the Society of Arts in 1833. The publication creditor which have governed the courts in and extensive circulation of these letters was establishing their exceptions to the rule, I feel proved. At the trial the jury found a verdict justified in regarding this case as within the for the plaintiff: but on the ground that the exception rather than within the rule. summing up of the learned judge did not
present the entire view of the case to the Judgment for defendant.
consideration of the jury, the Court of Coin
mon Pleas ordered a new trial. Tindal, C. : Practical Points.
J., observed,-“We think if the invention has already been made public in England,
by a description contained in a work, whether PATENT-FIRST INVENTOR.
written or printed, which has been publicly
circulated, in such case the patentee is not Among other incidents to a patent-right, it the first and true inventor within the meanis necessary that the act or process to which ing of the statute (21 Jac. 1 c. 13), whether the patent relates, should not have been pro- he has himself borrowed his invention from mulgated before the date of the letters patent: such publication or not, because, we think, otherwise the patentee is not considered the the public cannot be precluded from the first inventor. In the case of the Househill right of using such information as they were Co. v. Neilson, 1 Web. 718, Lord Lyndhurst, already possessed of at the time of the patent C., observed :—“ If the machine is published granted. It is obvious that the application in a book, distinctly and clearly described, cor- of this principle must depend upon the parresponding with the description in the specifi- ticular circumstances which are brought to cation of the patent, though it has never been bear on each particular case. The existence actually worked, is not that an answer to the of a single copy of a work, though printed, patent? It is continually the practice, on brought from a depository where it has been trials for patents, to read out of printed works, I long kept in a state of obscurity, would afwithout reference to anything that has been ford a very different inference from the prodone." And Lord Brougham, with reference duction of an Encyclopedia or other work to the same point, said :-“It negatives being in general circulation. The question will the true and first inventor, which is as good be, whether, upon the whole evidence, there as negativing the non-user. The book that has been such a publication as to make the is generally referred to, is the · Repertory of description a part of the public stock of inArts and Sciences': it must not be in a for- formation. Stead v. Williams, 8 Scott, N. eign book, but published in England.” In C. 684. accordance with this rule, Sir David Brewster's patent for the kaleidoscope was avoided, because he had previously published an account of it in a book. The present case is a I. POST NUPTIAL SETTLEMENT. further illustration of the same doctrine. The plaintiff Stead, in 1838, obtained letters patent Upon the construction of a post nuptial for paving public streets with blocks of wood settlement~Held, that the covenants entered of similar sizes or dimensions. The defend- into by one party were binding upon him ants, who represented the Metropolitan Patent only upon the condition of the other party Wood Paving Company, laid down pavement being bound by certain other convenants in in the streets of Manchester, composed of the instrument; and that, as the latter party hexagonal blocks of wood, similar in size and was under no obligation to execute the instru
character to those described in the plaintiff's ment, and refused so to do, the former party · specification; and upon an action for the in- was not bound by the instrument in equity, fringement of the plaintiff's patent, the de- although he had executed it, and although fendants pleaded that the plaintiff was not the the covenants contained in it were for the first and true inventor of the pavement men- benefit of an infant. Woodcock v. Monckton, tioned in the specification. In support of this 1 Coll. 273.
In Chancery.—Bruin v. Knott. ENGLISH CASES
lows past maintenance for J. Aldridge not according to what has actually been expended
upon him, but in proportion to what might In Chancery.
have been properly so expended, regard being
had to the whole amount of his income, and Before the Right Honorable Lord LYNDHURST,
this sum is to come out of the orphariage Chancellor.
"share alone. On the other hand, we submit,
that the sums actually expended should be BRUIN v. KNOTT.-June 4th, 6th and 26th, ascertained, and that a rateable proportion and July 2nd, 1845.
only of those suns should be taken out of the
accumulated income of the orphanage share. INFANT-PAST MAINTENANCE.
Wilcocks v. Mayne, 2 Vern. 558; Jesson v.
Essington, Prec. in Chan. 207. At any rate Where a mother has maintained her infant child without the order of the court, upon his decease an.
more ought not to be allowed out of that fund she is entitled only to such sum for his past main
than would have been allowed if Joseph Altenance as will effectually indemnify her for what dridge had been, in point of fortune, on the she has spent, without reference to the amount of same footing with the other orphans. his fortune. Such sum, in the event of there being several funds applicable to his maintenance, is first payable out of the income of that fund which it!
| Stuart and Collins, contra.--The vice would have been most beneficial for the infant, if chancellor's order is right, and under it the living, to have so applied.
plaintiff will be at liberty to bring forward all
she can reasonably insist on. It is not the This was an appeal from that part of the de- practice of the court to require a guardian cree of the vice chancellor in this suit, which who has maintained an infant, to produce directed the master to inquire “what sum vouchers for every item of its expenditure, would be proper to be allowed for the main-Grosvenor v. Drar, 1 Knapp's Rep. 82, but tenance of Joseph Aldridge from the death the inquiry sought by the plaintiff would of his father to his own death, having regard throw upon the defendant the burden of esto the whole of his fortune.” Joseph Al- tablishing by proof every payment made by dridge, the father, died in 1823, possessed of Mrs. Knott in respect of her son's maintepersonal estate to a large amount, leaving a nance since 1823, a task which it would be widow, the defendant Ann Knott, and three impossible to perform. Where an infant has
children, of whom the plaintiff Sarah Bruin, two funds, out of one of which it would be · the only child of a former wife, was the eld-more beneficial that he should be maintained
est. The other two children died under age, than the other, the rule is, that the former is Elizabeth, the youngest, in 1829, unmarried, to be applied for his maintenance, rather than and Joseph, in 1837, unmarried, and under the latter. Rawlins v. Golfrap, 5 Ves. 440; the age of eighteen years, having made a will, Willoughby v. Foljambe, 2 S. & S. 165. Here giving all his property, real and personal, therefore the court will first apply the orphanwhich, independently of any interest in the age fund for that purpose. orphanage fund, was very considerable, to his mother. On the death of Elizabeth, the de
Tinney, in reply. fendant Ann Knott became her administratrix, and a moiety of her share with accumu
The Lord CHANCELLOR.--I shall correct Jations was paid over to the plaintiff and the part of the vice chancellor's order, and direct other moiety carried over to the account of an inquiry with reference to the manner in Joseph. The decree of the vice chancellor which the infant has been maintained. There having given to the plaintiff the original and is no suggestion whatever that he was mainaccruing shares of Joseph, together with the tained beyond the scale to which he would accumulations thereon respectively, subject to have been entitled by his orphanage share: a claim for past maintenance of Joseph, the ang
tenance of Joseph the and I think the mother cannot claim more question was as to the amount which ought maintenance than has been actually expended. to be allowed for such maintenance, and the There is no suggestion that the expenditure fund out of which it ought to be derived. Thas been unreasonable with reference to his
orphanage share, regarded as being the whole Tinney and J. B. Parry, for the plaintiff. property of the orphan. I do not mean to -The order made by the vice chancellor al- say every item of expenditure is to be proved In Chancery.-Gardner v. Marshall. by vouchers; but the general scale upon | done that with respect to the past, then, under which the infant has been maintained is to the mode in which I direct the order to be be taken into account; and the master shall framed, she would be allowed it; if she has say, with reference to that scale of mainte- not done it she would not be allowed it, and it nance, what is proper to be allowed to her, so is not reasonable that she should. I underthat she may be completely indemnified for stand, however, that the income of the orthe sums she has laid out, as it appears to me phanage share is about 8001. a year, and I am to be just and proper that she should. The sure there was no expenditure beyond what question would be, what she has expended. It 8001. a year would warrant. I really, thereis not easy for her to prove by vouchers what fore, will not make the reference asked by the she has expended in the maintenance of her plaintiffs. It is an idle reference, involving own child, who had lived with her; therefore, the parties in expense, and practically without the order must be of a more general kind. It use. If this were a case on which I had any must be of such a nature as to enable the doubt about the facts, I might direct such master to come to a conclusion as to an amount inquiry; but I think I may use my own judgthat will indemnify her for her outlay. It is ment and discretion upon all that has appeared said there is no precedent of that kind. The in the case, for the purpose of coming to the precedents are all prospective. As to what conclusion, as a matter of fact, that the child is prospective and what is past, it is different. has not been educated upon a scale which If I were saying what would be proper to be 8001. a year would not justify. A question allowed for the maintenance of the infant in of law remains, which is this: there being future, I must have regard to his fortune. two funds, ought the maintenance to be apWhen a party who has maintained an infant portioned between them, or paid exclusively without the order of this court, applies to the out of one? The question is, was it most for court to have an indemnity, I am not to give the child's benefit that the maintenance should that party what would be proper to be laid be paid out of the fund which might be eventout under all the circumstances, but what has ually lost to his estate? I am of opinion that actually been laid out. That is the rule. If it was, and that he had a right to have it so a party maintains a lunatic without the order applied. There was a right on this orphanof the court, it is an every day order to direct age share to have the income applied to his an inquiry as to the sum properly expended maintenance, provided he was not maintained by him. If a party maintain an infant, par- beyond that scale which the orphanage share ticularly a mother standing in that relation to would justify. In that view the two infants the infant, she is entitled to a liberal indem- would be put precisely upon the same footing. nity. Nobody can dispute that. She is not [By the order of the lord chancellor, it was entitled to more than she has expended, ta- directed that the master should inquire what king a fair and liberal view of the question. sum would be proper to be allowed for the She is not entitled to put any money into her maintenance of the infant from the death of own pocket. It is matter of evidence how his father to his own death, regard being bad we are to ascertain it. Therefore, instead to the manner in which he was maintained of saying, “ Prove the items,” I say, “Look from time to time, with liberty to state any at the general scale of expenditure, the manner special circumstances at the request of either in which the child was maintained, then party.} award a sum accordingly.” If it is to go twenty years back, as matter of evidence, the
Before the Right Honorable Sir LAUNCELOT ty cannot probably have vouchers for the SHADWELL, Vice Chancellor of England. purpose of proving the expenditure, therefore I do not put the defendants to prove the ex- | GARDNER V. MARSHALL.—3rd and 5th May, 1845. penditure. I do not think that is the effect
CHOSE IN ACTION_SETTLEMENT. of the vice chancellor's order at all. I think he takes into consideration what is the fortune A court of equity will, under circumstances, direct of the child, and what would be allowed hav- the whole residue of the wife's fortune to be settled ing regard to that fortune, as if it were a case
| upon her, although her husband may not have ac
upor of future maintenance, where it would be the
1 tually deserted her. duty of the mother to spend upon the main. The decree in this suit declared the plaintiff, tenance of the child a sum corresponding with Sarah Gardner, the wife of the defendant its fortune and prospects in life. If she has John Gardner, entitled to a settlement in re
In Chancery.-Gardner v. Marshall. • spect of her fortune, under the will of Will- that, previously to the bankruptcy, plaintiff iam Haydon, and that it should be referred to had lived in comfortable circumstances and in the master to approve of a proper settlement, respectable style. The master, having regard having regard to her fortune (if any) under to the above circumstances, and farther that the will of Richard Haydon, in the pleadings said John Gardner had obtained his certifinamed, or otherwise, and to the past applica- cate of conformity under said bankruptcy, tion thereof. The inaster, by his report, found, was of opinion, and found, that the interest, that, in the year 1805, the plaintiff intermar- dividend, and annual proceeds of the residue ried with, and was then wife of, defendant, of the personal estate of the said William John Gardner; that subsequently, Richard Haydon, amounting to the sum of 53391. 15s. Haydon, the father of the plaintiff, advanced 2d., when the same should be raised and set to the said John Gardner various sums of apart, should be settled upon the said plainmoney, amounting in the whole to the sum tiff to her separate use, and without power of 60001., no part of which said John Gard- of anticipation. To this report the defendner settled •upon plaintiff, but applied the ants the assignees in bankruptcy of the huswhole thereof to his own purposes; that said band excepted, for that the master ought not William Haydon, by a codicil in his will, gave to have found and certified that the whole of and bequeathed certain specific chattels to his such interest and dividends should be settled wife, and all the rest of his personal estate on the plaintiff. and effects to a trustee therein named, upon trust to pay his said wife, since deceased, an.
| Anderdon and Freeling, in support of the annuity of 5001., and upon farther trust to in
'exception. We contend, that the rule of law vest the residue and pay and apply the year
prohibits the court from giving the whole ly profit and produce thereof unto the plain
property to the wife. The leading cases upon tilf for her life, and after her decease, to ap- Beresford y Hobson. 1 Madd. 362. Fornarte
this point are Wright v. Morley, 11 Ves. 12; ply the same to the use and benefit of her
| Thompson, 1 Deac. 90; Coster v. Coster, 9 children ; that the residue of the testator's
Sim. 697. There has been one case in the estate amounted to the sum of 53391. 15s. 2d.,
exchequer, Brett v. Greenwood, 3 You. & C. which the trustee of the will lent to the said John Gardner upon a mortgage of certain
230, where the court thought it right to give premises, which turned out to be a deficient |
the whole ; but that was in a case of insol
vency, and the court put it distinctly upon security ; that upon the sale of said mort
the difference between bankruptcy and insol. gaged premises, the sum of 36211, alone be
vency; but that decision has been impeached came applicable to payment of the said sum of 53391. 15s. 2d. . The report then stated,
and abandoned. In Burdon v. Dean, 2 Ves. that, under the will of the plaintiff's father, ;
jun. 608, Sir R. P. Arden, M. R., says, “It
is impossible to give her the whole; for that said Richard Haydon, the plaintiff became entitled to a life interest in all the real and per
would be to admit that a married woman is sonal estate of said Richard Haydon, to her
entitled to the whole of her property to her
separate use.” In Wright v. Morley, the separate use, subject to an annuity of 2501. || to a person who died in the month of March,
• husband had abandoned his wife ; but here, 1843; but that, by reason of several inden
' though they have separated, yet the master tures, whereby the plaintiff had encumberedades not state the
does not state the reason of the separation. her said life estate under the will of said Rich- / Bethell and Rolt, contra.—There are two ard Haydon, for the relief of her husband, classes of cases in which questions of this and for the purpose of making good the defi- nature arise: one, in which the husband perciency in the residuary estate of said William forms all the duties which the law throws Haydon, by reason of the insufficient mort- upon him, in which case even the court acgage, the plaintiff derived no benefit from the knowledges the right of the wife to a settlewill of the said Richard Haydon, notwith- ment; but where the husband fails to perform standing the annuitant was now dead, and his duty in maintaining his wife, there the that, in fact, that she was unprovided for. wife has an equity to have the whole, not, The report then stated the bankruptcy of said indeed, upon the ground that the husband John Gardner, the plaintiff's husband, in the ill-treats his wife, the question is maintemonth of August, 1840, since which time the nance, not settlement merely; that is, in plaintiff had been without means of support, effect, what Lord Eldon has said in Wright except from the kindness of her friends; but v. Morley. In Oswell v. Probert, 2 Ves. jun. • In Chancery.-Gardner v. Marsl:all. 680, the same principle was acted on by Lord all that came by the wife. This is so in subLoughborough; and the entire income being stance, though not in form. Then, with renecessary for the maintenance of the wife, spect to the sum derived from plaintiff's unthe whole was given. His lordship went upon cle, that is to be considered to be equal to the principle of maintenance, and not mere 53391. 15s. 2d.; for this sum a security was settlement. So in the case of Watkyns v. given by the husband, but that security turnWatkyns, 2 Atk. 96; Lord Hardwicke pro-ed out to be insufficient to such an extent as ceeded upon the ground of the husband not to leave a deficiency of 17181. 15s. 2d. The having maintained his wife, and having re- master then finds this important fact, that, ceived the greater portion of her property. notwithstanding the gift to plaintiff under the Now, in the present case, the husband has re- will of her father, Richard Haydon, she nevceived the greater portion of the wife's pro- er had derived any benefit from it, in conseperty, or she has encumbered it for his bene- quence of having encumbered it for the benefit, and the wife is wholly without mainte- fit of her husband. I observe that counsel nance; therefore, we ask that the whole of the for the exception said, that the master did not residue may be given her for maitenance. say that she never would derive any benefit (Priddy v. Rose, 3 Merr. 86 was also cited.) under it; but the master states that the estate
of Richard Haydon was not sufficient to pay Anderdon, in reply.—The case of Priddy the annuity of 2501., and that part of the v. Rose, and other cases of that class, were capital had been applied for that purpose; and simply cases of a trust deed, whereby a party that, in fact, notwithstanding the annuity has being bound by covenant to do a certain thing, ceased, plaintiff will benefit but little, if at the court would not allow him to take under all, by the benefit intended to be conferred it until he made good what he was liable to upon her by the said Richard Haydon; and do. In the present case, the husband has then follows this statement of fact: “that, maintained his wife and family from 1815 to during the whole of the interval between 1835; and it must be considered that this June, in the year 1836, down to the present money is not money actually belonging to the time, with the exception of about twelve wife, but is part of the assets in bankruptcy. months, or thereabouts, partly in the year The case cited from Atkins was a case of 1839, and partly in the year 1840, she, the cruelty; and in no case, except in such or in said Sarah Gardner, had been living separate case of desertion, has the court given all. and apart from her husband; and that, dur
|ing about fifteen months after the said month THE VICE CHANCELLOR.—I do not agree of June, 1836, the said Sarah Gardner receivwith that argument. I recollect, that, in the ed some maintenance out of the business of case of Coster v. Coster, it was argued, that the brewery, which was carried on by Mr. the court was bound to give more than one-, William Gardner, as trustee of the said John fourth to the husband; but I thought that the Gardner, but since the said Sarah Gardner court had a discretion; and, in that case, I has been maintained and supported by the thought it proper to have three-fourths of the voluntary assistance, pecuniary and otherwise, property settled upon the wife. Now, it may of the said Sarah Gardner's relations and be true that there has been no case in which, friends;" and that, during the twelve months when the question here was simply raised, her husband resided with her, he did so at what should be the settlement upon the wife, her expense. Now, I do say, that desertion the court has refused to settle the whole; but, would, in a pecuniary sense, have been better then you must consider what has been the than actual residence, for he resided at his wife's fortune, and if you find, that, prior to wife's expense. I am of the same opinion as the question of what the settlement should be, the master; and should there be no direct authe husband has bona fide received a large thority for doing what I intend to do, if a preportion of her property, then you look upon cedent be wanted, I shall make one.--Excepthe remainder as a residue. I cannot but tion overruled. think the master stated very properly, and that it is very important to consider, that, after the marriage of plaintiff in 1815, her A man who is a judge one half the year, family advanced 60001., for it is now to be and a barrister the other, is not likely to be considered, in effect, the same as if there was either a good judge, or a good barrister.to be a settlement made upon the wife out of Lord Brougham.