1

Practical Points.-Patent-First Inventor-Post Nuptial Settlement.

Judgment for defendant.
Practical Points.

PATENT-FIRST INVENTOR.

a

where the courts have held that an order plea, evidence was given of a letter addressed which was equivalent to an assignment of 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 consideration of the jury, the Court of Common Pleas ordered a new trial. Tindal, C. J., observed, "We think if the invention has already been made public in England, by a description contained in a work, whether 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, long kept in a state of obscurity, would af without 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 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 instrucharacter 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.

POST NUPTIAL SETTLEMENT.

In Chancery.-Bruin v. Knott.

ENGLISH CASES.

In Chancery.

lows past maintenance for J. Aldridge not according to what has actually been expended upon him, but in proportion to what might have been properly so expended, regard being had to the whole amount of his income, and this sum is to come out of the orphanage

Before the Right Honorable Lord LYNDHURST, share alone. On the other hand, we submit,

Chancellor.

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.

INFANT-PAST MAINTENANCE.

Where a mother has maintained her infant child without the order of the court, upon his decease she is entitled only to such sum for his past maintenance as will effectually indemnify her for what she has spent, without reference to the amount of 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 would have been most beneficial for the infant, if living, to have so applied.

only of those sums should be taken out of the accumulated income of the orphanage share. Wilcocks v. Mayne, 2 Vern. 558; Jesson v. Essington, Prec. in Chan. 207. At any rate more ought not to be allowed out of that fund than would have been allowed if Joseph Aldridge had been, in point of fortune, on the same footing with the other orphans.

Stuart and Collins, contra.--The vice chancellor's order is right, and under it the plaintiff will be at liberty to bring forward all she can reasonably insist on. It is not the practice of the court to require a guardian who has maintained an infant, to produce vouchers for every item of its expenditure, Grosvenor v. Drax, 1 Knapp's Rep. 82, but the inquiry sought by the plaintiff would throw upon the defendant the burden of establishing by proof every payment made by Mrs. Knott in respect of her son's maintenance since 1823, a task which it would be impossible to perform. Where an infant has two funds, out of one of which it would be more beneficial that he should be maintained than the other, the rule is, that the former is to be applied for his maintenance, rather than the latter. Rawlins v. Golfrap, 5 Ves. 440; Willoughby v. Foljambe, 2 S. & S. 165. Here therefore the court will first apply the orphanage fund for that purpose.

THIS was an appeal from that part of the decree of the vice chancellor in this suit, which directed the master to inquire "what sum would be proper to be allowed for the maintenance of Joseph Aldridge from the death of his father to his own death, having regard to the whole of his fortune." Joseph Aldridge, the father, died in 1823, possessed of personal estate to a large amount, leaving a widow, the defendant Ann Knott, and three children, of whom the plaintiff Sarah Bruin, the only child of a former wife, was the eldest. The other two children died under age, Elizabeth, the youngest, in 1829, unmarried, and Joseph, in 1837, unmarried, and under the age of eighteen years, having made a will, giving all his property, real and personal, which, independently of any interest in the orphanage fund, was very considerable, to his mother. On the death of Elizabeth, the defendant Ann Knott became her administratrix, and a moiety of her share with accumulations 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 accumulations thereon respectively, subject to a claim for past maintenance of Joseph, the question was as to the amount which ought to be allowed for such maintenance, and the fund out of which it ought to be derived.

Tinney and J. B. Parry, for the plaintiff. -The order made by the vice chancellor al

Tinney, in reply.

THE LORD CHANCELLOR.-I shall correct

tained beyond the scale to which he would have been entitled by his orphanage share: and I think the mother cannot claim more maintenance than has been actually expended. There is no suggestion that the expenditure has been unreasonable with reference to his orphanage share, regarded as being the whole property of the orphan. I do not mean to say every item of expenditure is to be proved

In Chancery.-Gardner v. Marshall.

has not been educated upon a scale which 8001. a year would not justify. A question of law remains, which is this: there being two funds, ought the maintenance to be apportioned between them, or paid exclusively out of one? The question is, was it most for the child's benefit that the maintenance should be paid out of the fund which might be eventually lost to his estate? I am of opinion that it was, and that he had a right to have it so applied. There was a right on this orphanage share to have the income applied to his maintenance, provided he was not maintained beyond that scale which the orphanage share would justify. In that view the two infants would be put precisely upon the same footing.

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 800l. 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 judg that 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. If I were saying what would be proper to be allowed for the maintenance of the infant in future, I must have regard to his fortune. When a party who has maintained an infant without the order of this court, applies to the court to have an indemnity, I am not to give that party what would be proper to be laid out under all the circumstances, but what has actually been laid out. That is the rule. If a party maintains a lunatic without the order of the court, it is an every day order to direct an inquiry as to the sum properly expended by him. If a party maintain an infant, particularly a mother standing in that relation to the infant, she is entitled to a liberal indemnity. 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 party cannot probably have vouchers for the purpose of proving the expenditure, therefore I do not put the defendants to prove the expenditure. I do not think that is the effect of the vice chancellor's order at all. I think he takes into consideration what is the fortune of the child, and what would be allowed having regard to that fortune, as if it were a case of future maintenance, where it would be the duty of the mother to spend upon the maintenance of the child a sum corresponding with its fortune and prospects in life. If she has

Before the Right Honorable Sir LAUNCELOT

SHADWELL, Vice Chancellor of England.

GARDNER V. MARSHALL.—3rd and 5th May, 1845.

CHOSE IN ACTION-SETTLEMENT.

A court of equity will, under circumstances, direct
the whole residue of the wife's fortune to be settled
upon her, although her husband may not have ac-
tually deserted her.

THE decree in this suit declared the plaintiff,
Sarah Gardner, the wife of the defendant
John Gardner, entitled to a settlement in re-

Anderdon and Freeling, in support of the exception.-We contend, that the rule of law prohibits the court from giving the whole this point are Wright v. Morley, 11 Ves. 12; property to the wife. The leading cases upon Beresford v. Hobson, 1 Madd. 362; Exparte Sim. 597. There has been one case in the Thompson, 1 Deac. 90; Coster v. Coster, 9 exchequer, Brett v. Greenwood, 3 You. & C. 230, where the court thought it right to give the whole; but that was in a case of insol

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 master, 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 53397. 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 annuity of 5001., and upon farther trust to invest the residue and pay and apply the yearly profit and produce thereof unto the plaintiff for her life, and after her decease, to apply the same to the use and benefit of her children; that the residue of the testator's estate amounted to the sum of 53391. 15s. 2d., which the trustee of the will lent to the said John Gardner upon a mortgage of certain premises, which turned out to be a deficient security; that upon the sale of said mort-vency, and the court put it distinctly upon gaged premises, the sum of 36217. alone became applicable to payment of the said sum of 53391. 15s. 2d. The report then stated, that, under the will of the plaintiff's father, said Richard Haydon, the plaintiff became entitled to a life interest in all the real and personal estate of said Richard Haydon, to her separate use, subject to an annuity of 2501. to a person who died in the month of March, 1843; but that, by reason of several inden-though they have separated, yet the master tures, whereby the plaintiff had encumbered 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 plaintiff had been without means of support, except from the kindness of her friends; but

the difference between bankruptcy and insoland abandoned. In Burdon v. Dean, 2 Ves. vency; but that decision has been impeached jun. 608, Sir R. P. Arden, M. R., says, “It is impossible to give her the whole; for that would be to admit that a married woman is entitled to the whole of her property to her separate use." In Wright v. Morley, the husband had abandoned his wife; but here,

does not state the reason of the separation.

nance, not settlement merely; that is, in effect, what Lord Eldon has said in Wright 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 53397. 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 1718l. 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 residue may be given her for maitenance. (Priddy v. Rose, 3 Merr. 86 was also cited.)