patent for the sole use of the said invention. This (a) 1 A. & E. 792. 3 N. & M. 603. U 3 (b) 3 T. R. 438. the 1834. BOWMAN against TAYLOR. 1834. BOWMAN against TAYLOR. the principle of eviction was applicable, it is not now material to consider. In Oldham v. Langmead (a) there cited, where the action was brought by the assignee of the patentee against the patentee, Lord Kenyon would not allow the latter to shew that the invention was not a new one, against his own deed. As estoppels are mutual, that is a strong authority to shew that the assignee, if he had by deed admitted the invention to be new, would have been estopped from pleading the contrary. And the current of authorities, and particularly the late case of Lainson v. Tremere (b), shew that there may be an estoppel by recital in a deed. The plaintiff is entitled to judgment. WILLIAMS J. I am of the same opinion. A passage has been cited from Lord Coke, in which he says that an estoppel must be certain, and not to be taken by argument or inference. But to give the words of this recital the sense ascribed to them by the plaintiff, is no argument; it is only making use of the common understanding of a phrase in the English language. When it is said, as in this deed, that a party "had invented an improvement, it means that he was the inventor of it so as to make that invention available under the law of patents. The words "had invented" must, then, without any argument, mean that, the contrary of which is averred in the first and second pleas. The question, therefore, upon these, is the same as upon the third plea, as to which there is no doubt. Then the only question is, whether a recital, not being a direct assertion, can estop the party who has made it: no decision has been cited to the contrary; and this Court lately determined in (a) 3 T. R. 439. (b) 1 A. & E. 792. 3 N. & M. 603. favour of such an estoppel in Lainson v. Tremere (a), where the doctrine of estoppels was carefully and fully considered, and where the estoppel in question depended as much upon a recital as that in the present case. Judgment for the plaintiff (b). (a) 1 A. & E. 792. 3 N. & M. 603. (b) The following case was argued and decided in Hilary term 1835. BOWMAN against ROSTRON and Another. THIS was an action of covenant, by the plaintiff in the preceding case, on an indenture similar to that referred to, antè, p. 278. The declaration was the same as in Bowman v. Taylor, except as to the names of the defendants. The defendants pleaded, 1., non est factum; 2, 3, and 4., the same pleas as the 1st, 2d, and 3d in Bowman v. Taylor; 5., a further breach of the conditions of the letters patent. The replication took issue on all these pleas. (There was also a second count, with pleadings substantially raising the same questions.) On the trial before Lord Denman C. J., at the sittings at Guildhall after Hilary term 1834, the plaintiff put in the counterpart of the indenture described in the declaration, which counterpart was executed by the defendants. The Lord Chief Justice held the recital in this deed to be conclusive on the issues joined upon the second and third pleas, so as to preclude the defendants from giving evidence in support of these pleas; and (the defendants then not insisting on the fourth and fifth issues) a verdict was taken generally for the plaintiff, leave being given to move for a new trial, on the ground that the inference to be drawn from the deed, as to the truth of the allegations in the pleas, ought to have been left to the jury, with such evidence as the defendants might have brought forward in support of their second and third pleas. F. Pollock obtained a rule accordingly in Easter term last. Sir W. W. Follett, Solicitor-General, and Tomlinson, now shewed cause, and contended that the pleas themselves were clearly bad, according to the decision in Bowman v. Taylor, and by analogy to the case of landlord and tenant. They referred to Vooght v. Winch, 2 B. & Ald. 662.; Hayne v. Maltby, 3 T. R. 438.; Doe d. Bullen v. Mills, antè, And they urged that, if p. 17.; and Taylor v. Zamira, 6 Taunt. 524. 1834. BOWMAN against TAYLOR Thursday, January 29th, 1835. Declaration stated the ex ecution of a deed by plaintiff and defendant; the plea did not traverse the execution, but alleged new matter, upon which the repli cation took issue. The deed was put in at the trial, and its recital directly contradicted the new matter alleged in the plea. Held, nevertheless, that the defendant was not precluded from submitting such matter of defence to the jury, inasmuch as the plaintiff had not pleaded the recital of the deed by way of estoppel. And, the Judge at nisi prius having treated such deed as conclusive, and directed a verdict for the plaintiff, the Court granted a new trial without entering into the question whether the plea was or was not bad. U 4 trial, 1834. BOWMAN against TAYLOR. trial, inasmuch as the plaintiff might have judgment non obstante veredicto, even if the issues on those pleas were found for the defendant. Sir F. Pollock, Attorney-General, and Wightman, in support of the rule, were stopped by the Court (Lord Denman C. J., Littledale, Patteson, and Coleridge Js.). Lord DENMAN C. J. We are all clearly of opinion that there must be a new trial; a specific issue in fact having been joined, and evidence offered upon it at the trial, which was not received. Rule absolute. Both parties, by consent, had leave to amend the pleadings without costs. Friday, Nov. 21st, A rule nisi was obtained for an attachment against defendant for non-payment of money pur suant to an award; and on argument in the Bail Court, the Judge there made the rule absolute. The sheriff levied for the amount claimed. A rule was then obtained, calling on the sheriff to shew cause, among other things, why he should not retain the IN The KING against The Sheriff of DEVON. N a cause of Webber against Partridge, in a former term, a rule nisi was obtained for an attachment against the defendant Partridge for non-performance of an award, by which he was directed to pay the plaintiff a sum of money. The objections to the award were heard before Patteson J. in the Bail Court, and eventually the rule was made absolute. The defendant, however, obtained a summons to shew cause before Patteson J. why the proceedings upon the attachment should not be stayed; and upon that occasion the learned Judge was asked to review his former decision. He, however, re fused to do so, or to interfere with the proceedings; and the sheriff of Devon levied under the attachment, and was ruled to return the writ. A rule was obtained in this term by the defendant, calling on the sheriff to shew the Court; and cause why he should not retain the sum of 1617. levied sum levied till further order of upon such rule being discussed in the full Court, it was admitted that the object in applying for the rule was to obtain a revision of the judgment given in the Bail Court. Held, that the matter, having been decided by a Judge in that Court, ought not now to be reheard; and that the proceedings since the attachment did not entitle the defendant to reopen it. under under the attachment, till further order of this Court; and why he should not refund to the defendant the sum of 101. 2s., levied at the same time for fees and poundage. Against this rule Jeremy shewed cause in the Bail Court before Littledale J., who referred the matter to the full Court. And now, as to that part of the rule which related to the 1617., Bere, on behalf of the defendant, stated that the sheriff had the money in his hands, and was ready to obey such order as this Court should make respecting it; and he admitted that this part of the motion was made for the purpose of reviewing the decision of Patteson J. on the motion for the attachment, and of having the money paid over to the defendant if the Court should reverse that decision. [Taunton J. The question has been disposed of. The single Judge represents the full Court. If such applications were permitted, the party who failed before the single Judge would always come to this Court for a rehearing.] Here the matter is recalled before this Court, by the sheriff retaining the money to await their order. [Lord Denman C.J. The cause may be in Court for other poses, but not for this. We cannot rehear it.] pur The Court (a), as to this part of the application, discharged the rule (b). The other part of the rule, which was obtained on the ground that the sheriff had claimed larger fees than he was entitled to, was referred to the Master, as well as the costs of this rule. (a) Lord Denman C. J., Taunton, Patteson, and Williams Js. (¿) See, as to decisions at chambers, Rex v. The Archbishop of York, 14. & E. 397. 1834. The KING against The Sheriff of DEVON. |