1842. BAXTER v. GRAY. was nothing from which any implied assumpsit could be raised, and that the jury should have been so directed. TINDAL C. J. If the evidence had shewn that the work and labour were done upon an understanding between the parties, that the plaintiff was to be remunerated by a legacy, that would have amounted to an agreement that he was to make no charge. But if the work and labour were performed under a hope of a legacy, I see no reason why the plaintiff should not, on such hope failing him, be, as it were, remitted to his legal right. The law on the subject was correctly laid down in Osborn v. The Governors of Guy's Hospital (a), where Raymond C. J. told the jury that they were to "consider how it was understood by the parties at the time of doing the business." Here, no proof was given of any understanding as to the way in which the plaintiff was to be remunerated. I disapprove strongly of the course pursued by the plaintiff in not sending in any bill (b); but it seems to me that the jury shewed a due regard for the testatrix's estate, in cutting down the amount of the plaintiff's claim; and, on the whole, I think that justice has been done. COLTMAN J. There appears to me no ground for finding fault with the way in which this case was left to the jury, or with the conclusion to which they have come. It would be most unreasonable if the plaintiff was to have no remuneration for his services. ERSKINE J. There was evidence to warrant the jury in coming to the conclusion that the plaintiff attended the deceased in his medical capacity upon the usual terms. It is true that it also appeared that he forbore (b) Vide post, 773. (a). (a) 2 Str. 728. to send in his bill, under an expectation of receiving a remuneration in the shape of a legacy. But unless an understanding could be proved that he was not to make any charge, I think he was entitled, on being disappointed in his expectation, to require payment for the services which he had rendered to the deceased. 1842. BAXTER v. GRAY. MAULE J. concurred. Rule refused. (a) Ν WALTON V. BATEMAN and Others. Jan. 21. IN this action, which was for an infringement of the In an action same patent which came before the court in Walton v. Potter (b), application had been made to Coltman J. at chambers for leave to plead - first, not guilty; se for an infringement of a patent, a plea that the invention is not a new 21 Jac. 1. within the condly, that the invention was not a new invention, as to the public use and exercise thereof; thirdly, that the invention was not a new manufacture within the meaning of the statute 21 Jac. 1. c. 3.; fourthly, that the cards mentioned in the letters patent and specification were generally known previously to the granting of such letters patent, and that the alleged improvements were leged patent not an invention in respect of which the said letters patent could lawfully be granted; fifthly, that part of it is a manuthe cards so mentioned were generally known previously facture, within to the granting of such letters patent, and that the alleged improvements were not an invention in respect of which the said letters patent could lawfully be granted; (a) By the law of France no medical (or spiritual) attendant can take a legacy exceeding a fair remuneration for the ser vices he has rendered; Code but is new, the meaning of the statute. 1842. WALTON v. BATEMAN. sixthly, that the plaintiff did not particularly describe the nature &c. of his alleged invention; seventhly, that the invention was useless for sheet cards and top cards. The learned judge having refused to allow the fourth and fifth pleas, Talfourd Serjt., on a former day of this term, obtained a rule nisi for leave to plead those pleas; against which Bompas Serjt. now shewed cause, and contended that the pleas were unnecessary, being merely a repetition of the third plea. Talfourd Serjt. in support of the rule. The defendants have no wish to retain the fourth and fifth pleas if the court are of opinion that the defence therein sought to be set up, is open to them under the third plea, namely, not only that the alleged invention is not new, but also that it is not a manufacture within the 21 Jac. 1. c. 3. TINDAL C. J. There is no reasonable doubt as to that point. I think that, under the plea that the alleged invention is not a new manufacture, the question whether it is a manufacture within the statute is involved. (a) The rule must therefore be discharged. The other judges concurring (a) Vide antè, 434, 435. Rule discharged. 1842. RICHARD PERRY v. SARAH WATTS, Administratrix of JOSEPH WATTS deceased. Jan. 18. administra COVENANT. The declaration, after stating that In covenant William West being seised in fee, by indenture of by the assignee of the the 25th of August 1805, demised the premises in ques- reversion tion to J. Watts, the intestate, for the term of forty- against the three years, and setting out a covenant to repair, trix of the alleged that Watts entered, and enjoyed the premises lessee, the until his death, on the 1st of June 1828, after which all his estate and interest therein vested in the defendant as administratrix, and that she entered. The declaration then traced the reversion from West through various parties, to Campion, and averred that Campion, by lease and release of the 8th and 9th November 1816, (the release being made between Campion and Sophia his wife of the first part, John Perry of the second part, and Wilde of the third part,) conveyed unto Wilde the said reversion of and in the said demised premises, "to have and to hold the same unto Wilde and his heirs, to such uses upon such trusts, and for such ends, intents, and purposes, and with, under, and subject to such powers, provisos, agreements and declarations as the said John Perry should, by any deed or deeds, writing or writings, with or without power of revocation, to be by him sealed and delivered declaration, in whereby one J. P., in pur suance of a power, ap pointed the wife of the verdict was entered for the defendant upon a plea which traversed the appoint ment. Quære, whether the declaration might be amended under the 3 & 4 W. 4. c. 42. 8. 23., by stating the deed as operating either by way of grant or as a covenant to stand seised to uses. The court at first inclined not to allow the amendment, except on payment of all the costs of the trial. After discussion, it was agreed that the defendants should repair the premises under a rule of court, and that no costs should be paid by either party. 1842. PERRY v. WATTS. in the presence of, and to be attested by, two or more credible witnesses, from time to time direct, limit, and appoint; and in default of, and until such direction, limitation, or appointment, and so far as every or any such direction, limitation, or appointment should not extend, to the use of the said John Perry and his assigns during his natural life, without împeachment of waste; and after the determination of that estate, by forfeiture or otherwise, in his lifetime, to certain other uses in the said indenture more particularly mentioned." That, "after the making of the said last-mentioned indenture, to wit, on the 2d of August 1823, by a certain indenture then made between the said John Perry of the first part, the plaintiff of the second part, and Wilde of the third part, which said indenture was sealed and delivered by the said John Perry in the presence of, and was then attested by, two credible witnesses, [profert] it was witnessed that, in pursuance of a certain agreement in the said last-mentioned indenture recited, and for the considerations therein mentioned, the said John Perry, pursuant to, and by force and virtue, and in exercise and execution of, the power and authority to him the said John Perry reserved, limited, and given in and by the said indenture of the 9th of November 1816, did direct, limit, and appoint, that the said demised premises, with the appurtenances and the said reversion thereof, and all the estate of the said John Perry therein, should from thenceforth be and remain, to such uses, upon such trusts, and for such ends, intents, and purposes, and with, under, and subject to such powers, provisos, agreements, and declarations as the said Richard Perry [the plaintiff] should by any deed or deeds, writing or writings, with or without power of revocation, from time to time direct, limit, or appoint; and for default of, and until such direction, limitation, or appointment, and so far as every or any such direction, limitation, or appointment should not extend, to the use of the said |