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1842.

BAIRD

V. NEILSON.

tend, as they did then contend, was not within the terms of the patent. That is not the averment, however, in the case. It is not therefore proving the affirmative of that, or assuming to prove the affirmative of that, which shows that they are not liable to the payment of 1s. a ton on all the iron made. That opens the issue again, which both parties intended should be concluded, that the process used before 1833 was the process which was covered by the patent.

My Lords, what was the real intention of the parties making this agreement, whether they meant the words to have a meaning different from their obvious meaning, is a question not before us. The question is, whether the Appellants have stated anything entitling them to the interposition of the Court; for they must state, and they must clearly make out, a case entitling them to that interposition, otherwise the Court cannot interfere. In my opinion they have not stated a case relieving themselves from the payment of the 1s. a ton for the iron so made ; and if there had not been a strange misconception of the agreement of the parties, I think there would have been no ground for the argument. The only difficulty I have had, was in considering whether this process might not be used for the purpose of enabling the Court to adjudicate between the parties as to what was to be paid, assuming that the iron had been smelted in the mode subjecting the suspenders to the payment of the 1 s. a ton: but when I look to the statement of this case, I do not find any part of it in which the Appellants call upon the Court to protect them against the process, beyond the amount of the liability which arises from the contract to pay 1s. a ton. They state that they are not liable to pay anything,

1842.

BAIRD

NEILSON.

because the process they have used is not within the terms of the patent, and in one part of the Appellants' case that is put in the strongest possible light. They say, “it is needless to go into these matters, because the case of the complainers simply is, that they could not be compelled, even in an ordinary action on the contract, and still less by a vagne charge of this description, to render an account of iron smelted by a process which they aver and offer to prove they have never used.” So far therefore from asking that they may have the assistance of the Court to ascertain whether they are liable to pay the whole, the ground on which they put their case is that they have not used any process in respect of which they are liable to pay anything. That will leave it open to the parties to apply to the Court for an interdict or any other process, as they may be advised. It is sufficient for us at present to say, that on the ground upon which they have come here, they have failed in bringing forward any case for relief from this agreement; and upon a view of the whole case, I think your Lordships are justified in affirming the interlocutor.

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Lord Campbell :-I entirely agree in the view thus taken by my noble and learned friends who have preceded me. I have very little to add to the observations they have made. The construction of the agreement does not appear to me to admit of any reasonable doubt. There had been a former license granted to Baird & Co., and they had made iron by means of a certain process. A controversy arose whether that mode of making it was an infraction of the patent or not, and whether they were liable to pay the sum they had stipulated to pay if they availed

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themselves of the license granted to them. It appears that there were legal proceedings arising out of that. To put an end to those, the parties came to an agreement in 1833 ; and according to that agreement a certain sum of money was to be paid for the iron which had been before inade by Messrs. Baird & Co. according to the process they had adopted ; and it was also agreed that a certain sum of 1s. per ton should be paid thereafter for all the iron which was made by them according to the mode they had before adopted, or any other mode which was within that patent. I am clearly of opinion that this precluded Messrs. Baird & Co. from contesting that their former process was not within the patent, and that it rendered them liable to pay 1s. a ton for all iron made according to that process, whether within the patent or not. It would be monstrous to say that Messrs. Baird & Co., having paid the 4001., might, if they continued the same process as they had used before, still contend that it was not within the patent, and that they were no longer liable ; so as to revive all the controversy which it was the object of the agreement to terminate.

Then, what is the ground of the suspension? It certainly lies upon the suspenders to state some ground on which they call upon the Court to interpose to suspend the charge of having had the benefit of that process. The only real ground alleged is, that the use that has been made of the hot air has not been according to the patent. There is no denial of their having used hot air ; there is no denial that it has been used in the same manner as it had been before 1833 ; but it is simply an allegation, and comes to this in substance, that it is not a use of hot air coming within the patent: but the very object of the agreement was

1842.

BAIRD

Neilson,

to put an end to that question: and on the construction of the agreement, I am of opinion that there is no ground at all for the suspension ; and further, that the suspender had no right at all to the interposition of the Court; and that, therefore, the interlocutor disposing of that suspension ought to be affirmed.

Interlocutor affirmed, with costs.

WALTER BAGNAL GURLY - - - - Appellant.

1842: April 12.

MARGARET GURLY, Spinster, and Respondents.

Others

B. B. being seised of certain lands at K., in the county of C., Devise.

demised them to $. for three lives; S. agreed to assign the lease Dower. for lives to T. G., and T. G. entered into possession of the lands, Distributions, and obtained from B. B. a lease of the same lands for 999 years at Statute of: a peppercorn rent during the continuance of the lease for lives, and afterwards at 1001. a year. T. G. having these interests in the lands, made his will, in which was the following clause: “I order all my freehold interests in the county of C., &c. except my in. terest in K., which I hold under B. B., to be sold, and the money arising, &c. to be divided.”—HELD, affirming the decree of the Court of Chancery of Ireland, that T. G.'s interest in the lease

for lives was disposed of by this clause in the will. On the marriage of A., a certain sum was settled in trust for her for

life, “ as and for her jointure, in full lieu, bar, and satisfaction of any dower or thirds which she could or might claim at common law, out of all or any of the estates, real, personal, or freehold," of her intended husband.-HELD, affirming the decree of the Court of Chancery of Ireland, that this settlement barred her claim on the personal estate of her intestate husband, under the Statute of Distributions.

BEAUCHAMP BAGNAL being seised of certain lands at Knockroe, in the county of Carlow, demised the same to John St. Leger for three lives.

In the year 1768, John St. Leger being thus seised of the said lands of Knockroe, was said to have executed to Thomas Gurly indentures of lease and release, the release bearing date the 2d day of May 1768, whereby he demised unto the said Thomas Gurly the lands of Knockroe, containing 450 acres, more or less, to hold to the said Thomas Gurly, his heirs and assigns, for the same three lives, namely, his own and those of his sons, John Henry St. Leger,

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