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Saturday, March 25, 1854.

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No. 899—Vol. XVIII.

APRIL 1, 1854.



Lord o. Colvin.-(Sect. 31 of Stat. 15 & 16 Vict. c. 86 Gompertz v. Bartlett.-(Vendor and Purchaser-Bill
-Practice under-Examination of Witness vivá

of Exchange-Implied Warranty-Failure of Con. Voce to prove Handwriting-Inspection of Docu

siderationAction to recover Purchase Money).. 266 ments proved)


Reg. v. The Overseers of the Township of Manchester.
Rolls Court.

-(Poor-rate-County Court—9 & 10 Vict. c. 95, Russell 7. Plaice.-(Specific Performance-Title

88. 37, 55- Public Purposes Beneficial OccupaMortgage by Administrator-Power of Sale). 254 tion)


COURT OF Common Pleas. Evans v. Saunders.—(Power-AppointmentRevoca. tion)...

The Manchester, Sheffield, and Lincolnshire Railway

Company, Apps., Wallis and Another, Resps. -

(Appeal from County Court).—(Liability to mainNicholson o. Locke.-(Will— Construction- Annui.

tain Railway FencesHighway adjoining a Rail. ties, when payable - Conversion of Real Estate way-8 8.9 Vict. c. 20, s. 68)...

268 Period of Distribution)

263 VICE-CHANCELLOR Wood's Court.

COURT OF EXCHEQUER. Stroud r. Norman.-(Power, Execution of Condi- Wilkin v. Manning.–(Insolvent–5 & 6 Vict. c. 116, tional Appointment)..

264 and 7 & 8 l'ict. c. 96—Debt barred) ... 271


Highlander's horse,“ hard to catch, and not worth the The Scale of Charges for Advertisements will in future be catching;” and it is well to avoid the perilous pursuit, es follows :

£ 8. d. which, if successful, can only lead to such a result. For 2 lines or under.

0 2 0

An important judgment upon this branch of our law 3

0 2 6 4

0 3 0

has lately been delivered in the Court of Exchequer*, 5

0 3 6 and a principle is there laid down which is capable of 6

0 4 0 extensive application, and of settling many questions And so on, at the rate of 6d. per line.

which hitherto have been left in uncertainty. The ** A discount, proportioned to the number of repetitions, facts were briefly these: - The plaintiffs were the will be allowed upon all Advertisements ordered for three or more insertions.

owners of a large flour-mill at Gloucester, which was

worked by a steam-engine, the shaft of which having LONDON, APRIL 1, 1854.

been broken, they, on the 14th May, 1852, delivered it

to the defendants (more generally known by the name Among the interesting questions which are daily of Pickford & Co.) to take to Greenwich, where it arising in our courts of law we may certainly rank those was to serve as a model for the making of a new shaft. which relate to the measure of damages awarded to the A delay of six days beyond the time that was reasonsuccessful party in an action. These questions do not ably required for the carriage of the broken shaft took rest, nor therefore can they be argued, upon arbitrary place, and in consequence a corresponding delay took or technical grounds, but only upon considerations of place in the completion and transmission of the new natural justice between man and man. The problem shaft. It appeared that the shaft was an essential part to be solved is the exact apportionment of redress for a of the machinery, and that, until the new shaft was given injury—a problem that has engaged the attention supplied, all the hands about the mill were unemof moral philosophers, as well as of legislators and judges. ployed, and all the profits derived from the workNice discrimination, and a steady hand to hold the ba- ing of the mill were lost. The learned judge who lance, are often required for the purpose of accurately presided told the jury that the plaintiffs were entitled determining the amount of compensation. Varying, to recover for the damage which they had sustained and dependent on the policy, climate, or condition of a by reason of the stoppage of the mill for six days, people, has been the principle of assessment: some- and the jury gave 25l. damages, in addition to 251. times the lex talionis has prevailed, “an eye for an paid into court. This ruling was held to be wrong, eye, a tooth for a tooth;" at other times a were-gild, and a new trial was granted. The Court, in delior money commutation, even for the life of a man. vering their considered judgment, said that the true In a more practical point of view, it is a matter of principle upon which damages should be assessed for importance for those who have suffered wrong to know a breach of contract is, that the damages should be with what measure compensation will be meted out to them—whether justice will open her hand liberally, or Feb. 23, 1854). It will shortly appear in The Jurist, and will

* Hadley and Others v. Baxendale and others, (Exch like a niggard. There are some verdicts, like the be published in the next part of the Exchequer Reports,




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such as either result naturally from the breach, or may other contracts; yet, for want of disclosing these facts, reasonably be supposed to have been in the contemplation the shaft becomes, in the eye of the law, so many hunof the parties at the time of entering into the contract. dredweight of old iron, the delivery whereof may be “ If there were special circumstances, and they were delayed without any injury or loss naturally resulting communicated to the party who has broken the con- from it. tract, then such special circumstances, being known,

The adoption of such a principle cannot be said to be were in the contemplation of the parties, and may be unreasonable. Here are two contracting parties-one taken into consideration in assessing the damages.

possessing full knowledge, the other totally ignorant, Suppose there had been another shaft at the mill, the of the special circumstances attending the contract

, or

, delay would have had no effect on the profits; or if in other words, of the peculiar consequences that will other machinery equally essential to its being worked

accrue from a breach. If the former does not place had been out of order, the same result would have the latter on an equal footing with himself in this rehappened. . . . It is obvious, that in the generality of spect, but induces him to undertake an extraordinary cases of a miller sending a broken shaft these conse- charge at the ordinary rates of risk, he has no right to quences would not follow. Here the special circum- complain if he is debarred from recovering the amount stances were not communicated, and were entirely of his loss. He had the opportunity of stimulating unknown to the defendants. We think,” continued the other party to the use of extra caution, and of the Court, “ that the judge ought to have told the making him responsible for all the injury accruing jury that they ought not to take the loss of profits into from neglect on his part. The other had a right to consideration.” In the course of the argument, Parke, be forewarned, in order to be forearmed. B., referred, with approbation, to the rule of the French

The principle thus clearly laid down will affect and law, Code Civil, liv. 3, tit. 3, s. 1150_“Le débiteur n'est tenu que des dommages et intérêts, qui ont été practically overrule several previous decisions, in which prévu ou qu'on a pu prévoir lors du contrat, lorsque the loss of profits, and damages which have been paid ce n'est point par son dol que l'obligation n'est point for non-performance of subsidiary contracts, have been exécutée.” The same doctrine prevails in the Ameri- allowed as damages for breach of the principal contract

, can law. Thus it is laid down in 2 Kent's Com. 480, although no notice has been brought home to the de note, (4th ed.)—“Damages for breaches of contract are

faulting party; (see, for instance, Walters v. Towers, only those which are incidental to and directly caused 8 Exch. 401); but it will not probably touch the class by the breach, and may reasonably be supposed to of cases where the contract may be said, from its very have entered into the contemplation of the parties, and character, to involve notice of the natural consequences not speculative profits, or accidental or consequential for a breach of warranty of a chain cable, the plain

to be apprehended from a breach. Thus, in an action losses."

tiff was held entitled to recover the value of the It was also said by the Court that actions for not anchor to which the cable was attached, on proving, making out a good title to land contracted to be sold, that a link of the cable being broken, the crew slipped and actions on bills of exchange and for non-payment the cable in order to avoid danger, and that the anchor of a specific sum of money, did not afford an exception and cable were thereby lost. (Borradaile v. Brunton, to the above rule, but rather fell within the second 8 Taunt. 535). So, the damages will probably still be branch of it, as each party may be said to have con- affected by matter subsequent to the making of the contemplated, upon entering into the contract, that in case tract; as if a man buy a horse with a warranty, and, the contract should be broken, the damages should be relying thereon, resell him with a warranty, and being in accordance with the conventional rule, which is well sued on the warranty by his vendee, he offers the defence established, viz. in the first case, that the damages to his vendor, who gives no directions as to the action, should be limited to the expense of investigating the the first vendee, if he defend that action, is entitled to title, and should not include the loss of the bargain ; recover the costs thereof from his vendor as part of the and in the second and third, only the precise sums agreed damages occasioned by his breach of the warranty: to be paid should be recovered.

(Lewis v. Peake, 7 Taunt. 163); unless he might have The rule, as above laid down, doubtless tends to limit known, by a reasonable examination of the horse before the liability of carriers and other contracting parties or he defended the action, that the animal was unsound al bailees, in the absence of express notice, and shews the the time he resold it. (Per Cur., Wrightup v. Cham necessity of giving such notice, if the party who alone berlain, 7 Scott, 598, 602). It would seem that the possesses the knowledge wishes to guard himself against special damage should henceforth be stated in the de loss. In numerous cases, as in the one under review, claration, so as to bring it within the rule laid down in the loss of profit, the payment of wages to unem- the principal case. ployed workmen, the liability on subsidiary contracts It must not be overlooked, that although this ruli not performed because of the principal contract being applies generally to all cases of breach of contract, ye broken, would form the only damage ; and therefore, if it is not applicable where fraud has been committed these special circumstances be not communicated to the (“par son dol que l'obligation n'est point exécutée") other party, the one who suffers the actual injury has nor where the defendant is a mere wrongdoer, as ir no redress. The shaft may have been essential to the actions of tort. machinery, the machinery to the working of the mill, the working of the mill to the employment of the men, to the realisation of profits, and to the performance of


“ Fletcher would not allow me to write the new ficti

tious will, fearing that Barber would discover a simiThe Judgment of the Court of Queen's Bench upon the light upon “the death at Bath,” and other points dwelt

larity in the writing." This revelation also throws Application of Mr. W. H. Barber for his Attorney's upon by the Court. Fletcher's secret machinery is Certificate; with new Evidence and Remarks.

made known, and the extraordinary precautions adopted [Crockford, 1854.]

by him, especially in interweaving fraudulent with THERE may be some among our readers who tire of bonâ fide cases, not distinguishable by any facts within the constantly reiterated appeal for justice, who cast Mr. Barber's knowledge, were well calculated to disarm aside the book that contains the oft-told tale of wrongs suspicion. Fletcher not only imposed upon the soliendured and rights denied, and who class Mr. Barber, citors, proctors, and brokers whom he from time to time the Baron de Bode, and the Rajah of Sattara among the employed, but also upon those whose express duty it individuals destined to vex the human race with their was to sift and scrutinise fraud in these matters, and complaints. We are not among the number who whose minds, therefore, would constantly be in an attithus regard these appellants to the high court of public tude of vigilance. opinion.

Upon the argument in the Queen's Bench, and Admitting that it is tedious to dwell for a long period throughout the discussion of the case, Mr. Barber has upon any one subject ; that it is difficult to preserve sustained much prejudice from the idea that it was the a sustained interest through more than five acts, or duty of the Bank to keep the amount of unclaimed eight volumes of the same work; and not forgetting that stock and dividends a secret, and that he must thereeven the contemplation of consistent virtue becomes fore necessarily have known that Fletcher obtained the wearisome, so that men were tired of hearing Aristides information on which he proceeded surreptitiously. called “The Just;" yet, while the wrong remains, we This is, however, a misconception, for by the 56 Geo. 3, would not hush the voice of that man who cries aloud to c. 60, s. 1, it is enacted, that (in addition to the other his fellow-men for redress; we would not refuse to listen particulars) “ the amount transferred shall be entered to him, or to call the attention of others to his sorrow- upon a list to be kept at the Bank for that purpose, fiul narrative. Let us remember that by adopting a which list shall be open for inspection at the usual different course we promise impunity to those who hours of transfer at the Bank." Mr. Barber, therepersevere in injustice, for they will feel, that by defer- fore, might reasonably believe that Fletcher obtained ring the remedy, the public will cease to care for its his information legitimately, through his stockbroker, application. But while the injured man is supported as he had represented. by the sympathy of his fellow-citizens, he has cause to The explanations are fortified by clear evidence, and atter the fulness of his heart, and success often crowns we cannot but concur in the hope expressed, we believe his long-continued efforts. The importunate widow unanimously, by our contemporaries, that Mr. Barber moved the judge, who feared not God nor regarded may speedily be restored to those professional rights man, until he said, “ Because this widow troubleth me from the enjoyment of which his singular misfortunes I will avenge her, lest by her continual coming she bave so long debarred him. weary me.”

These introductory remarks will justify us, we hope, in calling the attention of our readers to the smali A Treatise on the Law and Practice relating to Lettersvolume just issued from the press, which throws addi

patent for Inventions.

By John Paxton NORMAN, tional light upon a case which is undoubtedly one of

Esq., M. A. Post 8vo., pp. 276. [Butterworths.] the most remarkable in professional history.

This is a very compact and useful manual. The Since the delivery of the judgment in the Court of most difficult part of the text-writer's task is the Queen's Bench, Mr. Barber, it appears, has devoted statement of the principle by which the question of himself to obtaining information by which to elucidate the amount of novelty in an invention, necessary to the points relied upon by the Court, and his labours sustain a patent for it, is answered. Many of the have not been in vain.

cases are, no doubt, unsatisfactory, and some of those The explanation which he is now enabled to afford, which are still allowed to be cited would probably be presented in the form of a sectional analysis of the differently decided at the present day. But the subjudgment, can scarcely fail to satisfy impartial minds. ject is very capable of a scientific exposition, though The particulars of the concoction by Fletcher and it has not yet received it from the pen of any writer, his confederates of these remarkable frauds, as well either here or in the United States. It must be conthose introduced to Messrs. Barber & Bircham's office fessed that our treatises on patent law furnish an excepas those previously effected through the instrumen- tion to the general excellence of our legal text-books. tality of other solicitors, have been traced, and it is now Mr. Norman has not in this particular improved upon shewn that in numerous instances Fletcher had suc- his predecessors; but he has not fallen behind them; ceeded in imposing, not only upon his own solicitors, and as he has very diligently collected, clearly arranged, but also upon those retained by the Government to and concisely stated the substance of all the authorities, protect this description of property; and in one case, he has furnished to the reader the means of readily ascereven though their suspicions had at first been actually taining for himself the state of the law, and of correctaroused, Fletcher ultimately palmed off his fraud upon ing or supplying the deficiencies of the author's general them, realising for himself and accomplice, who per- deductions. For example, at p. 14, Mr. Norman says, sonated a “Miss Mary Hunt,” upwards of 40001. No “When a material is once known, it may be applied imputation has ever been cast upon either of the pro- in any manner”—implying that the application of a fessional gentlemen employed in that transaction. known material to any known purpose is not a good sub

The details which the volume presents are both inte-ject for a patent. This, of course, is too wide, but it is resting and curious. Amongst the recently-discovered corrected by the statement of instances which follows:evidence is a narrative of the Slack fraud, written by "Therefore tubes coated with brass being known, and Fletcher's principal accomplice, Sanders, which shews * tubes welded by a mandrel and die being known, a that the most elaborate contrivances were resorted to patent for their use as the tubular flues of a boiler is in order to guard against suspicion from Mr. Barber. not good. (Reg. v. Butler, 3 Car. & K. 215). The In reference to the forgery of the will, Sanders says, ' application of bone hafts and lattin plates for the " In consequence of that letter,” (a letter he had ad-handles of knives has been held not to be a good subdressed to Mr. Barber in the name of J. James), Iject-matter of a patent. (Mattley's Patent, Noy, 178).

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But when the application involves a new discovery of Amendment Act, 1852, do not appear to be very genea property in the thing applied, or a new result is rally understood in practice, if we may draw any infeobtained, a patent may be good. Thus, though the rence from the inaccuracy with which the document is adoption of caoutchouc as a fillet for cards was a very frequently drawn, the frequent discrepancy between simple matter, yet, as it was a substance whose pro- the provisional and the final specification of a patented • perties and fitness for that purpose had never been invention, and the confidence with which the proceed

known before, the adaptation was held to be a good ings upon provisional specification are sometimes • subject-matter of a patent.” If Mr. Norman had abandoned, for the purpose of making a fresh applicaassuined to criticise as well as state the authorities, he tion for letters-patent upon an amended specification of might have suggested that the dictum in Reg. v. Butler what is substantially the same invention. (for the specification was defective on other grounds) and The 6th section of the act requires, that with every the decision in Mattley's case were erroneous; and that petition for the grant of letters-patent for an invention the application of any substance to a purpose to which shall be left a statement in writing, called the proviit has never been applied before, though the use of other sional specification, “ describing the nature of the insubstances in the same manner, for the same purpose, is vention. known, may be protected by letters-patent, even though Every application for letters-patent is to be referred the result be in noways different from that already to one of the law officers, (sect. 7), and to him also is obtained by the use of other materials. The Statute of to be referred the provisional specification, and if he is Monopolies speaks of “new manufactures," not im- satisfied that the provisional specification describes the provements; and though, in applying the statute, the nature of the invention, he is to allow it, and give a Courts have held that the new manufacture sought to certificate of his allowance, to be filed in the office of be protected must be useful per se, they have not re- the commissioners; "and thereupon the invention therein quired that it should be more useful than any known referred to may, during the term of six months from manufacture of the same kind.

the date of the application for letters-patent for the Mr. Norman has fully stated the practice and forms said invention, be used and published without prejuunder the late act, and the regulations of the Commis- dice to any letters-patent to be granted for the same." sioners of Patents. With reference to the “provisional This is called provisional protection. In case the title specification,” after giving a summary of the existing of the invention, or the provisional specification, be regulations, he says, (p. 54):

too large, or insufficient, the law officer may allow or “The provisional specification will be a check on the require the same to be amended. (Sect. 8). patentee. If the complete specification is not strictly in În lieu of leaving a provisional specification, the apaccordance with it, people will be entitled to say that plicant may file with his petition and declaration à something is specified which would have been opposed, complete specification under hand and seal,“ particularly but which could not be opposed because the provisional describing and ascertaining the nature of the said invenspecification gave no notice of what was intended to be tion, and in what manner the same is to be performed," specified. That information, if given to the Attor- and the day of the delivery of such petition, declaraney-General, might have induced him to withhold tion, and complete specification is to be recorded at the the patent.

We apprehend that there is a better office of the commissioners, and indorsed on them, and ground for holding that a discrepancy between the a certificate thereof given to him; “and thereupon, provisional and final specifications is fatal, namely, that subject and without prejudice to the provisions hereinif the provisional specification describes too much, it is after contained, the invention shall be protected under a fraud on the Crown; and if it does not include all this act for the term of six months from the date of the that the complete specification claims, the latter is application;" and the validity of the letters-patent is bad, as claiming more than was granted by the letters to be made conditional on the sufficiency of such prepatent. Mr. Norman proceeds:-“If an inventor de- viously filed complete specification. (Sect. I). sires to abandon anything contained in his provisional Sect. 16 authorises the Crown, by warrant under the specification, in order to guard against the objection sign-manual, to direct any complete specification which that he represented himself to have invented more than may have been filed, and on which no letters-patent he has actually specified, lie should enter a disclaimer may have been granted, to be cancelled," and therewith the specification."


the protection obtained by the filing of such com“ If the first outline description would not be suffi- plete specification shall cease.' cient to embrace all the improvements in the inven- We cite this enactment merely for the purpose of tion, or in the mode of working it out, the proper shewing more clearly than would otherwise appear the course would seem to be to abandon the proceedings difference between provisional protection and the abtaken on the first provisional specification, and com- solute protection gained by filing a complete specificamence afresh with a new application, before the in- tion in the first instance-a course which in many cases vention comprised in the first provisional specification will be found to be the most prudent and the least is made public."

expensive. The first suggestion would be very judicious if it Sects. 15 and 18 authorise the preparing and sealing were certain that there is any power to disclaim part of letters-patent for “ the said invention." of a provisional specification after its allowance by the Sect. 20 provides that (subject to certain exceptions) law officers; and the second would be right if the no letters-patent shall issue, “or be of any force or publication of the first abandoned provisional specifi- effect,” unless the same be granted during the contication did not operate, like any other publication, to nuance of the provisional protection, or the protection defeat the protection sought under the new proceedings by reason of the deposit of a complete specification, for so much of the invention as had been so published. The letters-patent may be dated as of the day of the We need not enlarge on this subject, as it is fully application for the same, (sect. 23); but if a complete treated in the communication which follows this notice. specification of the invention was not deposited on the

application, no proceeding at law or in equity shall be ON THE PROVISIONAL SPECIFICATION OF ment committed before the same were actually granted.

had on the letters-patent in respect of any infringeINVENTIONS.

(Sect. 24).

Sect. 39 enacts, that all the provisions of the acts of The nature, office, and effect of the provisional the 5 & 6 Will. 4, c. 83, and 7 & 8 Vict. c. 69, relating specification of an invention under the Patent-law to disclaimer, and memoranda of alterations in letters

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