The Express.
London, England, 1848-01-22 00:00:00

Before the Master of the Rolle.

CR035101.1. P. EVERY.—PATENT RIGHT,—This motion
stood over with liberty for the plaintiff to bring an action,
and the defendant undertaking to keep an account in the
mean tiny..
NEWTO.: V. RICKETTP.—RIOIII% OP SUITOELS.—Mr.
Kindereley moved in this case on behalf of the plaintiffs, Mr.
Augustus Newton, the banister, and his wife, that certain
certificates for costs and subificaas for costa issued by the
defendants, Strafford and Askew, spinet Mr. Newton, might
be set aside for irregularity, and to take the answers of the
above defendants off the tile; and also for a receiver and
injunction, pending a suit instituted by the plaintiffs in the
ecclesiastical court, to set aside the will of the late Sir
Robert T. Ricketts, Bart.—Mr. Kindersley having been
heard, Mr. Newton rose to address the court on behalf, as he
stated, of Mrs. klewton.—Mr. Roupell, on behalf of the
defendants, Strafford and Askew, objected that a party could
not be heard by counsel sad in person also.—The Master of the
Rolls said that was the rule of the court, and he should
abide by it. He mast therefore decline to bear Mr. Newton.
He could not sever the plaintiffs, and consider Mr. Newton
as appearing for his wife only. But he would, if desired,
order the motion to stand over till the next motion day, to
enable Mr. Newton to retain a junior counsel.—Mr. Newton
requested that that might be done, and the motion stood
over accordingly.—Messrs. Turner and Robson appeared for
Lady Ricketts.

Bee,fo the

of England.

Puttees v. BitIIN.—INJUSICTION.—LONDON MANVItE
Comemer.—This was a motion to dissolve an injunction
granted in December last, to restrain the defendants from
using the style and title of " The London Patent Manure
Company," and from publishing circulars in imitation of
those used by the plaintiff, who represented " the London
Manure Company.' The ground upon which the injunc-
tion was granted was, that the name adopted by the defen-
dants so nearly corresponded with that of the plaintiff, and
the circulars were so exactly similar, that the public would
be misled, and that the plaintiff, who had adopted his title
long previous to the defendants, would be defrauded. In
support of the motion to dissolve, it was contended that the
plaintiff had not shown such an exclusive user of the term as
to entitle him to an injunction, and that any set of persons asso-
ciating themselves together for the sale of manure had just as
much right to style themselves the London Manure Company.
—Mr. Stuart and Mr. Hislop Clarke appeared for the
motion, and Mr. Bethell and Mr. Bates in support of the
injunction.—The Vice Chancellor said he agreed with the
principle laid down by the Lord Chancellor, that cues of
this tort must be disposed of according to the particular cir-
cumstances of each case. When there was reason to believe
that the legal title was clearly in the plaintiffs, then it was
right for the court to interfere ; hut it often happened when
the court of equity considered the legal title clear, the
coat of law came to a different decision, as, far instance,
in that remarkable case lately decided upon the subject of
borax—" Stevens v. Keeting." In this case the right of the
plaintiff to au injunction was put upon the fact that since
1811 he had sold his manure under a particular title, and
the first question was, whether the circular used by the de-
fendants could be called a fraudulent imitation of that
adopted by the plaintiff, and whether the defendants
were selling their manure by a title under which
the plaintiff had for so long a period sold his.
Upon the question as to whether there was a fraudulent imi-
tation of the plaintiff's circular his Honour thought no one
could for a moment doubt ; the malus animus was evident to
any one who compared the two together. The plaintiff's
commenced with these words, " Sir : I beg to hand you a
list of prices of the different artificial manures, and to assure
you that any orders you may favour me with shall he exe-
cuted on the best terms.' The defendants had actually used
the very same words, wilt the alteration of " we" for " I,"
and " us " for " me," in order to meet the fact of the appel-
'alias of company. Then the plaintiff's circular continued
" the nitrate of the London Mahure Company four guineas
per ton," the defendant here used the same words, altering
four guineas to 3/. 15s. They followed in the plaintiff's cir-
cular the article of flourish, " The great success, that for the
last six years, has attended the use of this manure for tur-
nip., carrots, potatoes, mangold wunel, coleseed, wheat,
barley, oats, and every other kind of roots, or grain crop, as
will be seen by the testimonials enclosed, has etablisbed it
as one of the best of all the artificial manures." The very
self same words were put forth by the defendants in
this part of the circular, with the alteration of seven
for six. No one could hesitate, therefore, in
declaring this a fraudulent taking of the plaintiff's words.
Then the question arose whether the court could say cer-
tainly that the user of the plaintiff was so clear that the in-
junction ought to be continued.—His Honour held upon
this point that it was possible a jury might think there had
not been a sufficient user by the plaintiff of his title. He
was desirous of following the Lord Chancellor's opinion in
this as in all other cases, and he found that his lordship, in
the case at " Spottiswoode v. Clarke," where the imitation
of the plaintiff's title was quite as clear as in this case, had
refused the injunction. On this ground, therefore, there
being some doubt in his mind about the clearness of the
plaintiff's right to use exclusively the title he had adopted,
he shou'd dissolve the injunction, and direct the plaintiff to
proceed to a trial of the right at law.

Before roe-Minotnor Bellea Brine.
Ex PARTE WARD, RI MIDLAND RAILWAY COMPANY.
—INTERESTI OF DEANS AND CHAPTERS AND THEIR
LIVISRES IN RAILWAY CONPENILLITON MONEY.--The pe-
titioner arm • lessee under th• Dean and Chapter of
Limoln of mois' in the town at Lincoln, ix

twenty-one years, subject to a condition against alienation
without license from the dean and chapter. Part of the
property being required for the station of the Nottingham
and Lincoln Railway, an agreement was entered into
between the dean and chapter, the petitioner, and the
Midland Railway Company, for the sale to the company
of this portion for 1,7601., which was by agreement paid
into Mesas. Smith, Ellison, and Co.'s bank at Lincoln,
but the dean and chapter and the petitioner beiog afterwards
unable to agree as to the apportionment of the money, ac-
cording to their respective interests, it was paid into court.
The purchase basing been completed, and the company being
in possession of the land, the petitioner now prayed that the
purehue.money might be apportioned between himself and
the dean and chapter, and that the petitioner's proportion
might be paid to him. Mr. Bacon and Mr. Freeling, in sup-
port of the petition, referred to the 68th, 69th, 74th, 76th,
and 78th sections of the Lands Clauses:Consolidation Act.—
Mr. Roundel' Palmer, for the dean and ehap:er, objected
that the money had been paid into court to the account ex
parte the Midland Railway Company, clearly showing that it
was paid under the 69,h section of the Lands ClausesConsuli-
; dation Act, which provides for the payment into court of the
pa-chase money of lands belonging to parties under disability.
If it had been paid in under the 76th section, which provides
for the case of parties not making out • title, it
must have been paid to the credit of the parties
claiming to be interested in the land. It could there-
fore be only dealt with according to the terms of
the 69th section, and must be laid out in the purchase
of other land to be conveyed to the same uses as the former,
and the petitioner could not have any portion of the money
paid out. The 74th section only applied where the money
was paid exclusively in respect of the leasehold interest, and
not where the purchase-money for the leasehold interest and
the reversion formed one sum.—Mr. Speed appeared for the
company.—The Vice-Chancellor held that the prayer of the
petition must be refused, but without costs; and, by the
consent of all parties, the money was ordered to be invested,
and the intere4 to be paid to the petitioner during this
term, or till further orders, without prejudice to any ques-
tion, the petitioner undertaking to pay the reservid rent to
the Dean and Chapter.
WREN T. BRADLEY.—ANNVITY TO A MARRIED WOMAN
ON CONVITION OF ILEN LIVING APART FYI/NI OLIt. flue-
BAND.—The testator, in this case, gave an annuity to his
daughter, in case she should be living apart from her hus-
band, and should continue so to live; and if, at any time,
his dauchter cohabited with her husband, he directnd that
the annuity should cease during that time. It appeared
that, at the time of the testator's death, his daughter was
living with her husband ; and the question was, whether
she was entitled to the annuity.—Mr. Russel and Mr.
Follett, for the daughter, contended that the restriction must
be considered, not as • limitation, but as a condition, and, as
such, was void, being contrary to public policy.—Mr. Wig-
ram and Mr. 13azalgette conini.—The Vice• Chancellor re-
served his decision for • future day.

MACGREGOR r. THE REIVIVPHIMIL STATTLORDSIIIIIE, AND
WORCESTERSHIRE RAILWAY COMPANY. - LIEN I:PDX
DEPOPITB.-Mr. Romilly was proceeding to resume his argu-
ment for the defendants in this case, when his Honour ob-
served that, without wishing to intimate any opinion upon
the case in its present stage, he would observe that he felt
a difficulty in deciding against the plaintiff upon demurrer.
There appearei to be two recitals in the indenture in ques-
tion in the cause ; one to the effect that the solicitor should
not sue the company, except in respect of the deposits, the
other that the company would pay out of the deposits; and
it had been decided in many Chiles that recitals amounted to
an implied covenant. It would be a curious constnic-
tion, moreover, that the solicitor meant only to bind
himself, but not the company. Upon the whole,
he felt no doubt upon the case, except perhaps upon the
question, whether the case fell within the rule, against a so-
licitor taking security for costs not yet incurred. His
Honour then intimated to Mr. Itornilly that he might con-
fine his reply to that point —Mr. Kenyon Parker then sub-
mitted to the demurrer being overruled, and six weeka'
time were given to the defendant to answer.—Costs reserved.

COURT OF QUEEN'S BENCH.
Sittings m Banco.

REGINA V. ARCHBISHOP OF CANTERRI'IIY.—CONFIIIXA-
ETON or DR. HAMPLEN.—On the application of the Actor-
ney.General, Monday was fixed as the day on which the
rule that has been obtained for a mandamus in this case
should be argued.
I...firearm. v. MOORS.—TiIiS wad an action tried before
Lord Denman, at Guildhall, to recover the sum of 1,7001. for
money paid in advertising a railway scheme, called " The
Great Western Extension." The plaintiff is an advertising
agent, residing in Red Lion-court, Fleet-street, and the de-
fendant, who is a major in the army, was a member of the
provisional and managing committees of the said railway. It
appeared on the trial that he eons:wed, in a letter addressed
to the secretary on the 3rd Sep'ember, 1845, to become a
member of the provisional committee. On the following day
he wrote to countermand such consent, but a few &platter
he met Mr. Owen, the secretary, and then agreed tocontinue
on the provisional committee. He was subsequently ap-
pointed a member of the managing committee, and' at-
tended one meeting of that ccmmittee on the 18th of deto.
bee, on which occasion he signed the resolutions. The
greater number of the advertisements were inserted before
that period, but a resolution was passed ordering their con-
tinuance on that day. 'l•he verdict was for the defendant, and a
rule was afterwards obtained calling on him to show cause
why that verdict should not be set aside and a new trial had,
On the grounds that the verdict was against the evidence,
and that the learned judge had misdirected the jury, who
had been told by his lordship to consider what was the then
prevailing opinion, from the decisions which had [ski n place,
as to the responsibility of a committeeman, whereas it was
contended that he should have told them what the law was
on the subject. —Sir F. 'theriger showed cause against the
rule, and contended that there was no evidence to go to the
jury as to the liability of the defendant, who had only once
attended the meetings of the board, and even supposing his
signature to the book to bind him, it could only be for so
much of the debt as was created after the 18th of October.
The learned counsel also insisted that his lordship was right
in leaving the question of the responsibility of railway com-
mitteemen to be determined by the jury. The well-known
cases of " Wyld and Hopkins," Reynell and Lewis," and
others of a similar character, were quoted in the course
of the argument.—Mr. Crowder, (lc., and Mr. Smith fol-
lowed on the same side.—Mr. Cockburn, Q.C., Mr. Wat •
son, Q.C., and Mr. Barstow were heard is support of the
rule.—The court took time to consider its judgment.

BAIL COURT.
Sittings to BMW. berme Mr. Justine Erie.
ATTAOHMENT.—}tZPIAAL OP A WITNESS TO TAXI 3 AM
OATH.—Mr. Joyce moved for an attachment against a wit-
ness who refused to give evidence on oath in the cause of
" Walter and Webber," which had been referred by the Lord
Chief Baron to arbitration. The order for the attondence of

witnesses had been made by Mr. Justice Wightman, and
the cause had been regularly referred according to tile terms
of the 3rd and Ith of Will. IV., c. 4. The party refusing to
obey the order of Mr. Justice Wightman did not object to
give evidence, but was unwilling to be sworn ; be did not
allege that he was either a Quaker or Moravian, but that he
was a Wesleyan Methodist, and that he conscientiously could
not take the oath. The attorney of the plaintiff swore that he
was a most necessary witness,and the defendant refused to have
his testimony received unless be was previously made to take
the oath. tinder the 40th section of the 3rd and 4th Will.
IV., a refusal to give evidence when an order of the judge
had been made, was a contempt of court, and attachment
might issue against the party. Mr. Justice Erle paid the
disobedience was to that part of the order directing him to
be sworn ; he thought it amounted to a contempt of court,
and there ought to be a rule nisi granted.
New Cower COVILTB.—Mr. Willei moved for an order
of prohibition, to stop any further proceedings in the cause
of Zorab and Smith. The circumstances of the case were
these : The defendant had moved for, and obtained, an
order to bring the case into a superior court, still it had
been tried in the Bloomsbury County Court, and a verdict
found for the plaintiff, the learned judge of that court,
being of opinion that an order alone wu not sufficient
to take the case out of his jurisdiction, but that
a writ of certiorari wu necessary to bring it
into a superior court. There wu another point which the
learned counsel submitted : the judge of the county court
had received very slight evidence of the defendant having
been served with a notice of trial 10 days before, which the
Ilth rule of those courts rendered necessary ; the judge
having said that he considered that rule an inconvenient one,
and that the smallest evidence of notice was quite sufficient.
--Mr. \Ville' contended that a certiorari was not necessary
according to the New County Courts Act, to remove a ease
from its jurisdiction, and that as the rules had been drawn
by five of the judges, of which the 11th was one, it ought to
be strictly construed.—Mr. Justice Erie: You may take
a rule.