pendent and distinct from the illegal act with which they are charged.

As well might it be said, that where A. joins with B. to commit larceny, he thereby adopts and makes himself a party to a previous act of B. in the commission of homicide. The true application of the rule is, that where two or more form a conspiracy to do an unlawful act, and before it has been committed another joins them in doing the act, it is no defence for him, that the plan was formed before he became a party to the conspiracy.

Peremptory writ awarded.'

1 The dissenting opinion of Okey, J., has been omitted.—ED.

CHAPTER XIII.

IMPOSSIBILITY OF PERFORMANCE.

FULLERTON v. AGNEW.

IN THE KING'S BENCH, TRINITY TERM, 1702.

[Reported in Salkeld 172.]

SCIRE FACIAS against bail reciting a recognizance taken in the time of the late King William III., wherein the condition was, that the defendant should render his body prisonæ mar. maresch. dominæ reginæ nunc. It was urged that the condition was impossible, and in consequence the recognizance single. Et per Holt, C.J. Where the condition is underwritten or endorsed, there that is only void, and the obligation is single; but where the condition is part of the lien itself, and incorporated therewith, if the condition be impossible, the obligation is void; and the Court inclining that it was ill, the plaintiff prayed his writ might be abated for his own expedition.

DUVERGIER v. FELLOWS.

IN THE COMMON PLEAS, MICHAELMAS TERM, 1828.

[Reported in 5 Bingham 248.]

DEBT on the joint and several bond of the defendant, Jean Jacques Saint Mare and others, the condition of which, as set out on oyer, appeared to be as follows: Whereas the said Jean Jacques Saint Mare, some time since, obtained three several letters-patent for the distillation of potatoes; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows are now engaged in copartnership

together in carrying on a certain distillery to a very large extent at Vauxhall, called the Belmont Distillery, according to the system and method of distilling, for the use and exercise of which the said several letters-patent were granted to the said Jean Jacques Saint Mare, and which said distillery has been erected, set up, and established on certain leasehold premises belonging to them, the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows have it in contemplation to dispose of their shares and interest of, in, and to the said several patents, and of, in, and to the distillery, premises, plant, and stock in trade in and upon the same, and to part with the same to a company to be formed for that purpose; and whereas the said Jan Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows have applied to and requested Aime Duvergier to exert his influence among his numerous connections and friends, so as to form such company, intended to be called "The Patent Distillery Company," who shall appoint directors and trustees for the conduct and management of the said concern, which directors shall issue, under their hands and seals, 10,000 shares of the value of £50 each share; and whereas the said Aime Duvergier, in consequence of his connection with different merchants, brokers, traders, and others in the city of London, hath consented and agreed to form the said company, to be called "The Patent Distillery Company," among his own immediate connections and friends, and to bring such persons together for the purpose of appointing directors and trustees for the government and management of such distillery concern, and to procure purchasers for 9000 shares, of the value of £50 each share; and whereas the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows, in order to induce the said Aime Duvergier to take the trouble of forming such company, and to use his influence among his connection and friends, and to indemnify him from the charges and expenses that he may be put to in and about the same, have proposed and agreed, as soon as he or his executors or administrators shall have effected such object, and procured purchasers for 9000 of such £50 shares, and obtained for such company the first call upon such shares of £5 each, that they, the said Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows, their heirs, executors, or administrators, or some or one of them, shall and will pay to the said Aime Duvergier, his executors, administrators, or assigns, the full sum of £10,000 sterling, by three equal payments or instal

ments of £3333 6s. 8d.—viz., the sum of £3333 6s. 8d. so soon as the first instalment on such 9000 shares shall have been paid, the sum of £3333 6s. 8d. so soon as the second instalment on the same shares shall have been paid, and the remaining sum of £3333 6s. 8d. so soon as the third instalment of the same shares shall have been paid; now, therefore, the condition of the above-written bond or obligation is such, that if the abovebounden Jean Jacques Saint Mare, Stamp Brooksbank, and William Dorset Fellows, their executors or administrators, or any or either of them, do and shall well and truly pay or cause to be paid unto the above-named Aime Duvergier, his executors, administrators, or assigns, the full sum of £10,000 of lawful money of Great Britain, in manner following-that is to say, the sum of £3333 6s. 8d., part thereof, on the said Aime Duvergier, his executors or administrators, forming the said before-mentioned company, and procuring purchasers for such 9000 shares, and payment of the first instalment or call thereon ; the further sum of £3333 6s. 8d. on the second instalment on such shares having been paid; and the remaining sum of £3333 6s. 8d. on the third instalment on the same shares having been paid; then the above-written obligation to be void and of no effect, or else to be and remain in full force and virtue.

The defendant, after sundry pleas, on which issue in fact was taken, pleaded, fifthly, actio non, because certain of the said several letters patent in the said condition of the said supposed writing obligatory mentioned, were letters patent of our sovereign lord the king, under the great seal of the United Kingdom of Great Britain and Ireland, bearing date at Westminster on a certain day, to wit, on the twentieth day of March, in the fifth year of the reign of our lord the king, whereby, after reciting, among other things, that the said Jean Jacques Saint Mare had, by his petition, humbly represented unto our said lord the king, that he was in possession of an invention of improvements in the process of an apparatus for distilling, our said lord the king gave and granted unto the said Jean Jacques Saint Mare, his executors, administrators, and assigns, his especial license, full power, sole privilege and anthority, that he, the said Jean Jacques Saint Mare, his executors, administrators, and assigns, and every of them, by himself and themselves, or by his and their deputy or deputies, servants or agents, or such others as he, the said Jean Jacques Saint Mare, his executors, administrators, or assigns, should at any time. agree with, and no other, from time to time, and at all times thereafter, during the term of years therein expressed, should, and lawfully might, make, use, exercise, and vend the said

invention within that part of the United Kingdom of Great Britain and Ireland called England, our said lord the king's dominion of Wales, and town of Berwick-upon-Tweed, in such manner as to him, the said Jean Jacques Saint Mare, his executors, administrators, and assigns, or any of them, should in his or their discretion seem meet, and that he, the said Jean Jacques Saint Mare, his executors, administrators, and assigns, should, and lawfully might, have and enjoy the whole profit, benefit, commodity, and advantage from time to time coming, growing, accruing, and arising by reason of the said invention, for and during the term of years therein mentioned; to have, hold, exercise, and enjoy the said license, powers, privileges, and advantages therein before granted or mentioned to be granted unto the said Jean Jacques Saint Mare, for and during and unto the full end and term of fourteen years from the date of the said last-mentioned letters patent next and immediately ensuing, and fully to be complete and ended according to the statute in such case made and provided; and it was by the said letters patent provided, and the same were declared to be upon the express condition that if the said Jean Jacques Saint Mare, his executors or administrators, or any person or persons who should or might, at any time or times thereafter during the continuance of that grant, have or claim any right, title, or interest in law or equity of, in, or to the power, privilege, and authority of the sole use and benefit of the said invention thereby granted, should make any transfer or assignment, or any pretended transfer or assignment of the said liberty and privilege, or any share or shares of the benefit or profit thereof, or should declare any trust thereof to or for any number of persons exceeding the number of five, or should open, or cause to be opened, any book or books for public subscription to be made by any number of persons exceeding the number of five, in order to the raising any sum or sums of money under pretence of carrying on the said liberty or privilege thereby granted, or should by him or themselves, or his or their agents or servants, receive any sum or sums of money whatsoever, of any number of persons exceeding in the whole the number of five, for such or the like intents and purposes, or should presume to act as a corporate body, or should divide the benefit of the said lastmentioned letters patent or the liberties and privileges thereby granted, unto any number of shares exceeding the number of five, or should commit or do, or procure to be committed or done any act, matter, or thing whatsoever, during such time as such person or persons should have any right or title, either in law or equity, in or to the same premises, which would be con