of justices under Nuisances Act
may be enforced in, 185; goods
received in one place and delivered
in another not in jurisdiction, 185;
judgment-creditor entitled to

realise his debt out of equitable
assets, 281

Covenant-

as to use of water, construction of,
283

Criminal Law-

duty of Attorney-General to grant

fiat for error in misdemeanor, 65;
habeas corpus, estoppel by record,
jurisdiction of superior court, 99;
showing cause against mandamus,
103; engraving Scotch bank note
without authority, 118; ill-treat-
ment of lunatic, 118; false pre-
tences, credit given to prisoner
instead of his proposed principal,
119; uttering counterfeit coin, evi-
dence of guilty knowledge, subse-
quent uttering, 119; neglect to
provide infant with necessary food,
132; assault on a gamekeeper,
averment of master's christian
name, evidence, amendment, 133;
fraudulent overcharge not a false
pretence, 133; concealment
birth, temporary disposal of body,

134

D.

of

DEBTOR AND CREDITOR-
right of a widow to freebench takes
priority of creditor's claim, 20;
deed of arrangement must abso-
lutely give up all property, 49;
bill of sale by trader when held
good, 51; set-off, general account,
part payment of debt, 89; costs of
proceeding at law by judgment-
creditor after administration de-
cree, 104; conflict of laws, curator
of lunatic in Scotland, 114; credi-
tor insuring debtor's life to account
for proceeds of policy, 137; as-
signment for benefit of creditors, in-
terest of assignee, assent, voluntary
conveyance, 213; creditor's suit,
assignment by testator in his life-
time, reserving fund to his widow,
222; execution-creditor, lien on
an equitable term of years, lien,
243; assignment of property sub-
ject to debts, 250

Deed of gift-

substitutionary gift by subsequent
deed, presumption against double
portions, 41

Dog-

liability of owner of, for injuries done
by, 73

Dower

conveyance before Dower Act; old
uses to bar dower of woman mar-
ried after the Act, 262
Dramatic Authors' Act-
construction of, 216

E.

ECCLESIASTICAL LAW—
right of equitable mortgagee to back
rents in hands of sequestrators, 22;
a note given by a clergyman on a
trading contract can be enforced
against him, 80; renewal of eccle-
siastical lease, 93; Church Building
Acts, mortmain, 111; agreement
as to dilapidations is not simony,
198

See Church Building Acts
Ejectment-

occupation, adverse possession, 101;
equitable defence not permissible
in, 181
Election Law

expenses of registration, charges of
town-clerk, 197
Eridence-

admission of secondary to prove
parcels, 30; parol to explain deed,
41; cross-examination of witnesses,
42; of deceased tenant as to right
of common, 144; how secondary
evidence may be admitted of origi-
nal documents, 208; of appropria-
tion, must be given by party
setting it up, 262; award, informer,
suit by plaintiff's tenant not ad-
missible, res inter alios acta, 267;
entry in a private memorandum-
book of a party deceased, 278; of
agreement to accept bill of ex-
change, 308

Executor and Administrator—
costs of, 43, 44; wilful default in

payment of legacies, 44; liability
to make good a false representation
of funds, on the faith of which a
legatee has acted, 61; assets re-
ceived in the colonies and trans-
mitted to England, 78; release by
one executor to another, 79; costs
of proceedings at law by judgment-
creditor after decree, 104; primary
fund for payment of debts, 113;
sale by one of two executors with-
out the consent of the other will
not be enforced, 125; plea in action
against, on a promissory note, 146;
contract by one of two for sale of
property, 250; appropriation of
payment, 292

Infant-

birth of after decree, bound by pro-
ceedings, 171
Injunction-

against Board of Health, 26; motion
to dissolve an ex parte one, 78;
against partner dealing with pro-
perty other than in ordinary course
of business, 90; against use of trade-
mark, 211
Insolrency-

arrest of insolvent pending former
petition, vesting order, 24; making
away with property, deficiency in
balance-sheet, vexatious defence,
24; committal to new custody, ap-
plication to file new petition, 25;
Chancery attachment, 25; atten-
dance of creditor, entering opposi-
tion, 25; attorney and counsel,
making away with property, undue
preference, 25; creditor's petition
by public company, sealing instead
of signing, 25; vexatious defence,
26; appointment of assignee in
lieu of assignee deceased, 26; pro-
tecting order, discharge from debts,
description of debts in schedule,
judgments on warrants of attorney,
52; description, trading, carrier, 88,
the court will not entertain a
second petition, 89; jurisdiction of
equity as to surplus of insolvent's

ademption of by testator's change of
residence, 29; reversionary legacy,
assignment, executor, 192; specific
of shares in a company, liability of
legacies for calls, 209

Libel-

privileged communication by deputy-
clerk of the peace, where malice to
be inferred, 156; privileged com-
munication to Secretary of State,
194

Lien-

International Law-

rights flowing out of contract go-
verned by the lex loci, when, 2
Interpleader-

costs of, principal and agent, 39

J.

JOINT-STOCK COMPANY-
action for calls on a certificated bank-
rupt, deed prohibiting such calls,
22; liable as a corporation to be
sued in the County Court, 55;
foreign mining association, juris-
diction of court, appointment of
receiver, 63; right of property in a
canal company, user of land vested
in the company for special purpose,
shares in Grand Junction Water-
works are real estate, 138; elegit
sci. fa. against shareholder, 182;
informal transfer of shares, how far
company bound by course of deal-
ing by directors in violation of
deed of settlement, 204; liability
of legatees of shares to calls, 209;
fraud of directors how far binding
on company, effect of fraudulent
reports as against third parties,
223; preference shares, guaranteed
dividend, title to interest or divi-
dend in arrear, 238; title to shares
held by bankrupt, acceptance by
assignees, when time begins to run,
248; right of gas company to
break up streets, 277

Judgment-
registration of, priority of mortgage,
registration, effect of, 112; in the
County Court may be realised out
of equitable assets, 281
Jurisdiction-
under Trustee Relief Act. 5; of Court
of Chancery in patent, 208; of
Court of Equity in case of lost
bill of exchange, 287
Justice-

may not take part in an appeal
against a rate by a company in
which he is a shareholder, 128

of solicitor on deeds in hands of a
third party, 230; does not entitle
him to refuse to put deed in evi-
dence, 231; of execution-creditor
on equitable term of years, 243
Limitations, Stotutes of-
having begun to run against tenant
in tail, will continue against re-
mainderman, 6; acknowledgment
to bar operation of, 16; acknow-
ledgment of open account, 75;
effect of on debts where charged
on real estate, 237

to King's College, Cambridge, 102:
costs of showing cause against, 103
Malice-

action for maliciously suing out writ
and signing judgment for nonap-
Marriage—
pearance, 157

of ward without consent of court, 5;
treaty of, misrepresentation as to
fortune, 29; conveyance by deed
acknowledged of reversionary in-
terest, 252; representations in
contemplation of marriage by
wife's father as to lady's fortune,
300

See Settlement.
Master and Servant-

liability of master for death of servant,

58; engagement of, contributor to
a newspaper, 80; master not liable
for act of person employed to do
work under superintendence of his
own servant, 129; a journeyman
tailor within the Master and Ser-
vants' Act, 187; Combination Act
conviction, 196
Mercantile Law-

See Merchant Shipping-Carrier.
Merchant Shipping—

charter-party, custom, evidence, 23;
Ship Registry Act, first and second
mortgagee, equitable fraud, notice,
29, construction of charter-party,
66; liability of consignee, con-
struction of bill of lading, 95; re-
fusal to pay freight, part delivery
by master, detention of ship, da-
mages in nature of demurrage, 96;
wages of mariner, dissolution of
contract, 127; collision, prepon-
derance of blame, 158; action for
not loading pursuant to charter-
party, plea of war, 160; charter-
party, payment of freight, sea-
worthiness, condition precedent,
174; captain's order for repairs,
who liable for, 183; owner of ship
and cargo, duty of shipowner, 199;
Ship Registry Act, interest on the
proceeds of sale of a ship, 251;
liability of registered owner after
sale for ship stores supplied, mas-
ter's authority, 258; suit in Ad-
miralty Court for freight, plea of,
284

See War, Laws of.—Admiralty.
Militia-

place for keeping stores and ad-
jutant's house exempt from poor-
rate, 141

Mines-

relative rights and obligations of the
owners of surface and minerals,
latter bound to leave support for
surface, custom of mining, 97,
boundary of coal mine, 319
Misdemeanor-
See Criminal Law-

Mortgage-

priority of, 16; permanent improve-
ments by mortgagee in possession,
15; equitable mortgagees, right of
to rents in hands of sequestrators,
22; production of title-deeds, laches,
acquiescence, 40; parental influ-
ence, fraudulent misrepresenta-
tion to procure, 71; mortgagee
of remainderman may maintain
suit for production of title-deeds,
91; priority of incumbrancers,
abandonment of security by mort-
gagee, 109; priority of claim of
consignee over mortgagee, 110;
priority of, over judgment, 112;
mortgagee of rates and tolls, pri-
ority over judgment-creditor, 121;
of machinery by deposit of deeds
of factory, 148; interest on mort-
gage of reversion paid by tenant
for life, 169; supplemental order
after decree, 174; security of mort-
gagce, defendant in a foreclosure
suit, impeached for usury, 209; by
lunatic, acquiescence, 220; agree-
ment to accept reduced rate of in-
terest on punctual payment, pos-
session by mortgagees, receiver,
264; by equitable tenant for life,
right of trustees of settlement to
retain as against mortgagee in re-
spect of waste, 265; promise of a
gift to take effect de futuro, invalid
declaration of trust, imperfect in-
struments, 286
Mortmain-

Church Building Acts, bequest of
money arising from sale of land,
111; shares in Grand Junction
Waterworks within Mortmain Act,
138; bequest to charity, 245; cove-
nant to pay money after death to
charity, 298; scheme for purchas-
ing land with money bequeathed
for charitable purposes, 301; de-
vise to charitable trust, 309
Municipal Corporations-

renewal of lease by, must be at rack-

rent, 5; penalty of overseer for not
signing burgess-list recovered by
common informer, evidence, 158;
grant of separate quarter sessions,
contract with county for support of
borough sessions, prisoners, contri-
bution to county expenditure, 253

Partnership-

injunction against partner dealing
with property, 90; stewardship-
fees not protits of a solicitor's part-
nership, what are profits, 139
Patent-

confirmation of void patent, costs of
objection, 1; leave to file specifi-
cation, 90; what is proper subject
of, 170; sci. fa., practice, jurisdic-
tion, 208

Pharmaceutical Chemists—

who entitled to be registered, 270
Pleading-

foreign law, how to be set out, 81;
accord and satisfaction in an action
on a bond, 81; equitable defence,
81; amendment after writ of
error, 86; judgment recovered,
98; to action on a promissory
note, 146; to action on an agree
niet to indemnify, 147; form of
replication that defendant was
abroad and that plaintiff sued
within six years after his return,

148

Equity-impeachment of mortgage,
209; charge of fraud, demurrer for
vagueness, 310

See Poor-rate.
Poor-rate-

place provided for militia stores and
adjutant's house exempt, 141;
Electric Telegraph Company liable
to, 166; private streets, tolls, prin-
ciple of rating, 175; equitable de-
fence, conditional judgment not
permissible, 197
Power-

execution of, 8; revocation and re-
appointment, exhaustion of, revival
of revoked appointment, 37; of
appointment, how to be exercised,
155; of appointment to relations,
exercise of, objects of power, next
of kin at death of donee, 252;
exercise of, by general devise, 266
Practice-

Equity-Special directions as to vouch-
ing accounts, 4; jurisdiction under
Trustee Act, 5; inarriage of ward
without consent, contempt, 5; effect
of disclaimer by answer, 7; evi-
dence, 26th order, 20; erasure in
affidavit, jurat, 22; contempt of
court, costs, 36; filing interroga-
tories, 61; demurrer for want of
equity, and improper joinder of
parties, 62; misdescription of
plaintiff, security for costs, order
to revive, 63; motion for decree,
amendment of bill, 63; costs of
abandoned motion to vary chief
clerk's certificate, construction of
orders, 70; money named in affi-
davit must be in words, and not
in figures, 73; taking bill pro con-
fesso, 75; order to revive, 75;
solicitor's lien, 75; order of revivor,
motion to discharge, 77; order to
solicitor to pay money into court
refused, 77; motion to dissolve ex
parte injunction, 78; record and
writ clerk's certificate, setting
down cause, 79; costs in pauper
suit, 79; lunatic trustee, vest-
ing order, 90; examination of
witnesses viva voce, 90; demurrer,
injunction, 90; plea, averments,
123; plea of discharge under In-
solvent Act, 126, effect of an at-
tachment on a decree registered
under 1 & 2 Vict. c. 110, 139;
indirect charge of fraud Hot per-
mitted in a bill, 139; appointment
of personal representative for pur-
pose of suit, 154; motion to dismiss
29th order, Aug. 1852, orders 13th
Jan. 1855, examination of wit-
nesses, 170; birth of infant after
decree, supplemental order, infant
bound by proceeding, 171; motion
for injunction after demurrer over-
ruled, 171; supplemental order
after decree, 174; plea of want of
parties, insufficient denial of in-
terest, 191; examination of wit-
nesses abroad, 193; enrolment of
decree, vacating decree, notice,
surprise, 207; decree in foreclosure
suit, effect of, 209; motion for
decree, 234; production of docu-
ments, affidavit, cross-examination,
242; power of attorney by guardian
to proceed to suit in India on
behalf of infant, 242; investment
under direction of court, 245; in-
junction, written copy of bill, filing
printed copy, orders of Aug. 1852,
253; on issue, devisavit vel non,

279

Common Law-Amendment at trial,
52; inability of judge to seal
bill of exceptions, new trial, 68;
pleading foreign law, how to
set it out, 81; plea of accord
and satisfaction in an action
on bond, 81; equitable de-
fence considered, 81; debt due
from garnishee, bond to indemnify,
85; amendment after writ of error,
86; sects. 148 and 149 of C. L. P. A.
1852, do not apply to quo warranto,
96; compelling plaintiff to carry in
the roll in another action, plea of
judgment recovered, 98; habeas
corpus, estoppel by record, 99;
motion for leave to proceed as if
personal service had been effected
under C. 1. P. A., 102; attach-
ment of debts by executor of

judgment-creditor, 116; sects. 32
and 34 of C. L. P. A. are not retro-
spective, 132; new trial refused
where the omission of the judge to
give some direction was acquiesced
in by counsel, 144; as to affidavits
in reply upon motions, 146; plead-
ing on a promissory note, 146; costs
and witnesses' expenses coming
before commission-day, 147; plead-
ing to action on agreement is un-
necessary, 147; landlord may de-
fend ejectment without giving se-
curity for costs, 152; court will not
issue commission to examine wit-
nesses in an enemy's country, 164;
plaintiff's counsel no right to
sum up evidence where judge de-
cides there is no evidence to go to
the jury, 167; marriage of female
defendant after judgment, entering
suggestion to obtain execution
against husband, 176; setting
aside judgment on ground of mis-
take, amendment of particulars of
demand, 176; attachment of debts,
effect of judge's order, title of as-
signees in bankruptcy, 177; equit-
able defence not allowed in eject-
ment, 181; costs of reference by
order of judge, 182; interroga-
tories, ejectment, 185; creditor
cannot attach a legacy in the
hands of an executor, 185; interro-
gatories not allowed in an action
for forfeiture of lease, 186; judg-
ment in court specially indorsed,
affidavit to set it aside, defence on
merits, 136; admitting to bail,
depositions, 187; costs of the day
for not proceeding to trial, default
of defendant, 219; appeal under
C. L. P. A., limitation of argument,
235; attachment under garnishee
clauses, of C. L. P. A. 1854, 248;
costs of judgment on special case,

257.

Principal and Agent—

costs of interpleader suit, 39; pay-
ment to principal, action by auc-
tioncer for price of a horse sold by
auction, 127

Principal and Surety-
liability of surety after release of
principal, 51; liability on a joint
cheque is joint and not several, 61;
bond, continuance of liability, 64;
loss of primary fund, 104; surety
entitled to interest on moneys paid
for principal, 168; assignment of
debt, solicitor and client, 191
Privilege-

of Queen's servant from imprison-
ment by the County Court, 54;
arrest of servant of the Crown,

115

on a marriage in England in Scotch
form, 2; construction of, 8.; cove-
nant by husband to settle rever-
sionary interest on wife, 31; cove-
nant to settle after-acquired pro-
perty on wife, 193; right of trus-
tees to retain as against mortgagee
in respect of waste, 265; rectifica-
tion of in case of marriage of a
ward of court immediately after
majority, 294; claim against wi-
dow's second husband, election,
296; representations of wife's father
as to her fortune, 300
Sequestration-

See Ecclesiastical Law
Simony-

agreement for dilapidations is not
simony, 198
Specific Performance-

only granted where compensation by
damages would be inadequate, 7;
of contract to supply coals, 50;
inability of vendor to secure mort-
gagee's execution of deed, 171; de-
murrer to bill, 243

See Vendor and Purchaser
Stamp-

an agreement to supply straw and
receive manure is within Statute
of Frauds, and needs no stamp, 130
Statute-

construction of, 277

T.

THELLUSON ACT-
observations on, 189

Tenant-

See Landlord and Tenant.
Tenants in Common-

application for appointment of re-
ceiver, 106; allowed to deduct
interest paid on incumbrances, 263

Term-

doctrine of presumption of surrender
of, a question for the jury, court
will not presume it, 54
Trade Marks-
injunction for use of, 211
Trover-

possession, right of action, 100
Trusts and Trustees-

jurisdiction under Trustee Relief Act,
5; trustee and cestui que trust,
acquiescence, 18; investment of
trust-moneys, liability of cestui que
trust, party to a breach of trust,
19; lunatic trustee of charity, 27;
trustee and cestui que trust, prac-
tice, 43; costs of, 43; bankruptcy
of trustee, 58; neglect of trus-
tees to obtain stop-order, 104;
duty of trustee to preserve evidence,
231; breach of trust, 231; order
vesting estate under Trustee Ex-
tension Act, petition, practice,
252; liability of, for negligence,
272; evidence of breach of trust,
278; bankruptcy does not dis-
charge assets of, 278

U.
USURY-
Impeachment of, mortgage for, 209

ས.

VENDOR AND PURCHASER-
when purchaser not bound to accept
vendor's covenant, 7; delay of three
years deprives vendor of right to
specific performance, 51; sale by

one of two executors without au-
thority of the other, specific per-
formance refused, 125; sale by
auction, action by auctioneer for
the price, 127; incomplete contract,
payment of deposit, when time the
essence of contract, 179; contraet
to purchase, inability of vendor to
procure mortgagee's execution of
deed, 171; assignment of property
subject to debts, charge of debts not
specified does not affect a purchaser,
250; contract by one of two execu-
tors, specific performance, costs,
250; payment by tenant for life
of interest on incumbrances,
263; covenant in conveyance
for use of water, construction of,
283; specific performance, 818;
Voluntary Deed-

gift from child to parent, undue in-
fluence, laches, 308

Waterman's Act-
conviction under, 67; employment
of non-freemen, validity of 38th
bye-law, 95

Will-

construction of 10, 18, 20, 27, 56, 60,
74, 76, 142, 173, 211, 218, 244, 252,
264, 293, 296, 315; conditional be-
quest until marriage, speaking
from death of testator, 10; due
execution, evidence of third party
taking an interest under it, 10;
meaning of word “surviving;" exe-
cutory bequest, 18; meaning of
words "then dead," 20; absolute be-
quest, 20; condition of residence at
mansion-house, tenant for life, costs
of improvements, 21, 60; meaning
of words "estate, effects and pro-
perty," restricted to personal
estate, 27; ademption of legacy by
change of testator's residence after
date of will, 29; attesting wit-
nesses to codicils entitled to lega-
cies under will, 30; revocation of,
by contract of sale, secondary evi-
dence to prove parcels, 30; period
of vesting of income of shares, 56;
personal representatives, when a
class to be ascertained, 60; meaning

of term

"next heir," annuity,
costs, 74; devise to children and
heirs of their respective bodies a
joint tenancy for life and several
inheritances, 76; bequest, revo-
cation of, by assignment for benefit
of creditors, 77; executed in

foreign country, English moveable
property, domicil, 78; what is a
contingent remainder, 99; where
estate in trustees, rule as to cutting
down estate in fee by showing a less
estate sufficient for the purposes of
the court, 142; what is a residuary
devise, Wills Act, 154; power of
155;
appointment, perpetuity,
meaning of term" unmarried,"171;
estate tail, rule in Shelley's case, 173;
Observations on the Thelluson Act,
189; meaning of term "in such
shares," what a good appointment,
211; meaning of words "in case either
of them die without issue, that
portion to be divided among the
subscribers," 218; how far to be
construed as speaking from death
of testator, 230; effect of equitable
life-estate, followed by legal re-
mainder to heirs, &c., of tenant for
life, 232; appointment of receiver
where executrix a married woman,
233; general charge of debts on
real estate, 237; intestacy, gift
with terms of exclusion, perpetual
annuity, remoteness, 244; bequest
to charity, mortmain, 245; who
within, gift to cousins, 252; out of
what fund an annuity is to be paid,
261; bequests of all leasehold and
other estates and effects whatsoever,
does not include after-acquired
real estate, 264; general devise,
power of appointment, exercise of,
Wills Act, 266; description by

testatrix of herself by maiden
name, she having married her de
ceased sister's husband, 288; mean-
ing of the word “unmarried,” 293;
meaning of "clear annuity," con
version of stock, deficiency of divi-
dends, and liability of capital to
make it good, 293; meaning of the
word

"effects," whether shares
vested or contingent, 296; bequest,
alternative or substitutionary, 5;
devise to charitable trusts, 309;
interlineations in, 311; lost codicil
probate of paper containing sub-
stance of its contents, 312; devise
to "heir-at-law of my heir-at-iaw
now in America," trust for an alien,
rights of Crown and of trustees,
315; bequest, covenant, legacy.
satisfaction, 327; vesting gift sub-
ject to be divested, costs, resi
due, 328

Winding-up-

call may be made for payment of
debts and costs, pending a ques
tion of liability between the com
mittee and ether shareholders, 9;1
right to recover back deposits, ex-
penses of application to Parliament,
dissentient shareholders, rule as to
repayment of deposits, 34; liability
of managing director, adoption of
acts of codirectors, 136; when ac-
tion will not lie against official
manager of a company only pro-
visionally registered, 165

PRIVY COUNCIL.

on a report of the Judicial Committee, to grant to the assignee of Porter's patent a further term of six years for the exclusive use of the invention. This term was granted by new letters patent, which contain a condition similar to that in the original patent, that "the grant is to be void, if it should appear that the said invention is not a new invention as to the public use and exercise thereof in England, or not invented and found out by the said W. H. Porter." In an action brought against a person of the name of Bloomer for the infringement of this patent, which came on for trial in the month of June 1854, it was proved that this was not a new invention within the condition of the letters patent, and it is agreed on all hands that the patent at present is merely void. The Legislature, however, has thought fit to vest in the Crown under certain circumstances, on the recommendation of the Judicial Committee, the power of restoring and giving effect to the grant so become void; and upon a petition by the grantee of the renewed patent to the Crown for the exercise of this power. and the confirmation of the patent, it has been referred to us by her Majesty to inquire, whether it is fit that the application should be granted. This power is conferred upon the Crown by section 2 of 5 & 6 Will. 4, c. 83, and it is admitted that if the petitioner brings herself within the provisions of the Act, it is still left to the discretion of the Judicial Committee to recommend or not the confirmation of the patent, as justice to all parties may appear to them to require. The clause is in these words: [His Lordship then read the section quoted above.] There are therefore two questions before us; first, whether the petitioner has proved those facts which are necessary in order to enable the committee to recommend a confirmation; secondly, whether the circumstances appearing before us are such as to make it fit that we should exercise our discretion by recommending a confirmation, if we have the power to do so. It was objected by the opponents of the petitioner that these questions do not arise in this case, for that the provisions for confirmation of a patent do not apply to a patent for an extended term. But the grant of an extended term is a new grant by new letters patent, subject to the same conditions, open to the same objections, and it should seem therefore, in ordinary cases at least, entitled to the same advantages as the original grant. In the case of Aube's patent, which was an application for an extension of the original term, and which came before this committee in Feb. 1854, it was decided that the grant of an extended term must be considered as a new grant, and as open to the same objection which would apply to an original grant. There appears to be nothing in the nature of the benefit now sought which should exclude its application to a patent for an extended term. We proceed therefore to the consideration of the question, whether the petitioner has established those facts which are necessary in order to give jurisdiction to the committee. The onus of proof lies on the petitioner, and she must satisfy the committee, first, that before the date of the original patent the invention was not publicly and generally used; and, secondly, that the grantee of the original patent believed himself to be the first or original inventor. It is proved by the evidence before us, that Mr. Porter was in no sense of the term the first inventor of this improvement. It appears distinctly, that the principle had been discovered and put in use by Mr. James Logan more than ten years before the date of Mr. Porter's patent; that he had made drawings of his invention, which he had shown to a great number of persons; that he had procured models of it to be made, which he had sent to anchor-smiths and other persons likely to bring the invention into use; that he had caused one of these models to be hung up in the room of the underwriters of Liverpool, where Mr. Logan carried on business, which model remained there for twelve or fifteen years, and must therefore have been there in all probability at the time when Porter took out his patent. It further appears that he had actually in 1826 manufactured a farge anchor upon this principle, and had sold it in that or the following year; that it was put on board a steamer called the William Huskisson, at that time trading to the Clyde; that it remained in use on board the William Huskisson (which was afterwards sold to the Dublin Steam Company) till the year 1836, when one of the toggles having been broken, it was sent to the yard of Messrs. Logan, as one of the witnesses says, to be repaired; and that from that time it lay in the yard open to the inspection of all the workmen who were employed there, amounting, we are told, to about 250, and of all persons whom business or other circumstances might bring to Messrs. Logan's works. If we could rely with confidence on the accuracy of Mr. James Logan's recollection, the case would be carried much further with respect to the uses of the invention; for he tells us, that before the manufacture of the anchor for the William Huskisson, he made and sold five or six of the same description and several others afterwards; but he is unable to give any particulars of such other anchors or of the persons to whom he sold them; no books or accounts have been produced in verification of such sales; his brother David Logan, who was in partnership with him, has no knowledge of any such anchors; and Irving, who

PRIVY COUNCIL.

was in the employ of the firm of Logans for thirtyseven years, says that no anchors were made of a similar description to that for the William Huskisson. As to the evidence given by the seamen of the use of similar anchors on board the Mars, the Venus and the Atalanta, and many vessels in the Thames, we deem it wholly unworthy of attention, and calculated rather to discredit than to strengthen the case of the opponents of the petitioner. It is not very easy to define what is the exact meaning of the expression "publicly and generally used" contained in this section. No patent is likely to be taken out for a process or machine already in public and general use, in the ordinary sense of those words; but certainly we cannot consider the use of the invention on board a single ship, however public, or for whatever length of time, as a general user; and though negative evidence in its nature can hardly be very conclusive, and that produced by the petitioner applies only to a particular firm, we should be inclined to hold, if it were necessary to decide the point, that we were satisfied that the invention had not been generally, though it had been publicly, used at the date of the original letters patent. Whether the petitioner has made out the second point, viz., that the original patentee believed himself to be the first and original inventor, depends entirely upon the period at which the belief must be proved to have existed. There is no reason to doubt that he so believed himself when the original letters patent were granted. On the other hand, it is plain that he could entertain no such belief at the time when the renewed grant was made. It is proved that he had full notice in 1839 of James Logan's prior invention; and it appears to us to be clear on the context of this clause, that the expression "first and original inventor" was intended to mean a person who could claim the merit of the first invention, without reference to the user; but, however that may be, we think, according to the doctrine laid down by Lord Lyndhurst in Westrupp and Gibbins' patent (Webst. Pat. Cas. 555), a party cannot be permitted to shelter himself under wilful ignorance, but must be fixed with knowledge not only of what he did know, but of that which he would have known if he had made the inquiries which it was incumbent upon him to make. Now it appears from Mr. Porter's letters of the 26th June 1839, that he was at that time not only informed by the Logans that they had invented and made an anchor similar to his; but that he was shown the anchor itself, and was told that it had been put on board a steamer for some little time, and then returned. He had notice, therefore, not only of the prior invention, but of the use of the invention, and was bound to inquire into the circumstances of the user; of the importance of which, with reference to his own patent, he seems to have been aware. It is argued, however, very forcibly, that the belief of the original patentee here spoken of must mean a belief at the time when the original patent was taken out; and that neither the merit of the original patentee, nor the rights of the assignee, can be affected by circumstances which came to the knowledge of the former only after the patent had been granted; and when, possibly, as in this case, all his interest in it had ceased. It is impossible to deny that there is great weight in this argument; but, on the other hand, it must be remembered that it is the new patent which it is sought to confirm; that it is as a new and original patent that it is brought within the meaning of the clause, and that there is nothing unreasonable when it claims the same advantages, in subjecting it to the same restrictions as an original grant. But, whatever doubts we may entertain upon other points in this case, upon that which is sufficient for its decision, viz., the mode in which

we are to exercise our discretion if the circumstances give occasion for it, we can entertain no doubt whatever. The power given to the Crown is to provide an extraordinary remedy for extraordinary cases, to supersede the ordinary rules of law at the expense of the public in favour of an individual; to give force and validity, as a quasi-legislative authority, to a grant of monopoly actually void, and to exclude from the use of the invention not only the other subjects of her Majesty in England, but even the first and original inventor who had actually brought it into public though not into general use, before the first patent was taken out. That this is the effect of a confirmation is perfectly clear, though it appears from Lord Lyndhurst's observations in Westrupp and Gibbins' case, that such was not the intention of the framer of the Act, nor its effect as it was originally introduced into and as it left the H. of L. To what extent under the language of the Act other objections to the validity of the patent are removed by the confirmation, may be doubtful. In the case of Card's patent, 6 Moore, P. C. 213, Lord Campbell suggests that the generality of the expression was probably intended to be limited to objections founded on the prior use of the invention. His Lordship also intimates that the provisions of the clause were meant to be confined to cases where either doubts might exist whether there had been such a prior use as to vitiate the patent, or where the use of the invention after some fruitless trials had been thrown aside and abandoned by the original inventor. Every judge who has had to consider the effect of this provision has felt, and

COURT OF APPEAL.

we entirely share that feeling, that the jurisdiction is one which is to be most cautiously and sparingly exercised. In the particular case before us there is no room for doubt, that if the fact which actually existed had been known at the time when the original patent was taken out, no patent ought to have been granted to Porter. The consideration for the monopoly created by a patent is the benefit derived by the public from the communication of a new and useful invention. What new discovery did Porter communicate, or what information did he afford, of which the public had not been for years in possession by the proceedings of the Logans, to which we have already referred? So far from having a right to the exclusive use of the invention against them, they would have had a clear right by taking out a patent, to the exclusive use against him, if they had not, by divulging and publishing their invention, made it a matter of common right and prevented it from being a fit subject of a patent either to themselves or to anybody else. There is not the least pretence for supposing that they had abandoned the use of the invention, though their efforts to bring it into general use had been unsuccessful, in consequence as it appears of the expense of the manufactured article being greater than the advantage supposed to be derived from it. If the facts now in proof had been known to their Lordships, when they recommended an extension of this patent, they never could have given any such recommendation to the Crown. It has been again and again stated in this place, that the grant of an extended time is anything but a matter of course; that in order to obtain it, a very special case must be made; that the novelty, merit and utility of the invention must be proved, and it must be shown that all reasonable means have been used in order to make the invention productive, but that in spite of such exertions the remuneration by the inventor has either entirely failed or has been quite disproportioned to his merits and to the benefits conferred upon the public. These rules are to be found laid down by Lord Brougham in Soame's case, Webst. Pat. Cas. 729; in Morgan's patent, Ibid. 737; and in Jones's case, Ibid. 579; by Lord Lyndhurst in Swaine's patent, Ibid, 560, and by other lords in a variety of subsequent cases down to the late case of Ex parte Heath, 8 Moore Pat. Cas. 217, and we think it of great importance that they should be strictly observed. If this extended grant ought never to have been made, still less can we now recommend that the ordinary rules at law should be superseded in order to give it validity. We have now considered what ought to be done with respect to the costs of the opponents. It is of great importance that the parties should not be discouraged from bringing important facts to the knowledge of the court by the fear of the costs which they may have to pay, even if their opposition be successful; and upon this ground in Westrupp and Gibbins' case the parties opposing were allowed their costs. But we are not satisfied with the manner in which this opposition has been conducted. Much expense has been occasioned by relying upon patents for inventions, which have really no resemblance to this, and witnesses have been produced to whose testimony, as we have already intimated, we cannot give the smallest credit. On the whole we shall humbly advise her Majesty that the petitioner's application ought not to be granted, but that no costs should be awarded to the opponents.

Petition dismissed.

Equity Courts.

COURT OF APPEAL IN
CHANCERY.

Reported by C. H. KEENE, Esq. of Lincoln's inn,
Barrister-at-Law.

Feb. 15, 16, and March 5.
(Before the LORDS JUSTICES.)
DUNCAN v. CANNAN.

Conflict of Laws-Rights flowing out of contract, governed by the lex loci contractus-Bankruptcy-Contingent debt.

Upon a marriage contracted in England, with a view to a Scotch domicil, a contract was executed in Scotch form, by which the husband covenanted to pay, after his decease, an annuity to his wife, and certain sums to the children of the marriage, if any surviving him and the wife assigned all the property which she should acquire during the marriage "in favour of herself and her promised spouse, in conjunct fee and liferent, and the children of the marriage; whom failing, herself, her heirs and assigns." The effect of such a contract, in Scotch law, is to give the husband a lifeinterest in the wife's property, and, subject thereto, to vest it in the wife absolutely; and the husband and wife are capable of giving a valid discharge for property so limited. Some time after the marriage the husband and wife acquired an English domicil, and property bequeathed to the wife by an English testator was paid by the executor to the husband and wife, upon their joint receipt. The husband afterwards became