The Sun.
London, England, 1855-02-12 00:00:00

LAW INTELLIGENCE.—Feb. 10.

JUDICIAL COAMITTEE OF PRIVY COUNCIL.
(Before Lord Chief Justice Jervis, Sir John Dodson,
Mr. Pemberton Leigh, and Sir Edward Ryan.)
zonto'■ PATINT ANCHOR-JUDGMENT.
In this case a patent had been granted on the 15th of
August, 1838, to Mr. -Porter, for the improved manu-
facture of anchors. It expired on the 15th August,
1852, and on the 18th Feb., 1853, was prolonged for
six years, the condition being that it was to be void if it
were not a new invention. An action having been
brought for its infringement, it was decided that it was
not a new invention, and the case came subsequently on
petition before the Council.
The Right Hon. T. Pemberton Leigh now delivered
an elaborate judgement, reviewing the facts of the case,
aid deciding that the invention was not new. They
would, therefore, advise her Majesty to grant the peti-
tion against the prolongation, but as they were not
satisfied with the manner in which this opposition had
been conducted, without eosts.—Petition allowed.

COURT OF QUEEN'S BENCH.
CROFT Y. LUMLEY.-HER MAJESTY'S THEATRE.
The Attornny•Generel, Mr. H. Hill, and Mr. Wines
were counsel for the plaintiff ; and Sir F. Thesiger, Sir

E Kelly, Mr. Bramwell, Mr. Ellis, and Mr. Wells for
the defendants, Lumley, Lord Ward, and others.

This Was an action of ejectment,' brought to recover
possession of her Majesty's Theatre and Property adjoin-

leg.
The Attorney-General said this was an action of eject-

ment, brought by Mr. Croft, the plaintiff, who was
trust's, and executor of Mr. Thomas Holloway, to re-
cover the property known as her Majesty's Theatre. Mr.
Holloway, the grandfather of the gentleman now inte-
rested, was the lessee under the Crown, so far back as
1793 ; but in 1845 Mr. Lumley became lessee to Mr.
Holloway, and under that lease Mr. Lumley now claimed
to hold the theatre. Mr. Lumley was entitled to let 45
boxes and 56 stalls, but he was not entitled to lot them
but from season to season. He was tied down ley the
strictest covenants not to encumber the theatre in any
way, and not to convert the theatre to any other use, nor
be behind in pays:lest of the rent, or the lease would be
forfeited. The plaintiff alleged that Mr. Lumley had
broken his covenant in every way. He bad given war-
rants of attorney, and judgments were entered up against
him to the extent of 54,6131., and they were, it was con-
tended, encumbrances upon the property. Mr. Lumley
had also let several boxes and stalls for more than a sea-
son, to a gentleman of the name of Hughes. This was
a violation of thweevenant. By these means Mr. Lum-
ley had absolutely ruined the theatre.
Lord Campbell said that it appeared to him that the
whole matter would involve itself into a question of law,
and perhaps, if the facts were admitted, the better way
would be at once to turn it into a special case, so that it
might go to a court of error.
The Attorney-General said there would only be one
question of fact. It was alleged, on the other side, that
there had. been a waiver of the forfeiture by the plaintiff
having received rent in October last, but he should show
that the money had not been received as rent.
It was ultimately arranged that the facts should be
turned into a special case, but that the evidence as to the
waiver should be left to the jury.
C. H. A. Martelli--I am a member of the bar, and am
the brother of Mr. Holloway, the owner of the Opera-
house. I have the entire management of my hrother's
property in the Haymarket, the Opera-arcade, &c. The
Opera has been shut for two years, which has been a
great injury to the other property. I have received the
rent of the Opera-house for years. I first became
acquainted with the warrants of attorney given by Mr.
Lumley to Mr. Hughes in June last. I have discovered
others within the last fortnight. I dill not previously
know of any warrants of attorney having been given by
Lumley to any one. I directed a search to be made in
June. I had $ correspondence with Mr. Barnes. In
January last I found, by accident, that some boxes and
stalls had been disposed of for a longer period than a
seasoll,other than the excepted boxes. On the 2d of
July, 1850, Lumley gave ua a notice defining the boxes
he should retain under the lease. I became acquainted
of the fact from an affidavit that had been filed by
lughes. On October 27 I went to Lyon, Barnes, and
Ellis, solititers for many of the parties interested in
boxes. I took this letter with me, and read it to Mr.
Barnes, who declined to take the letter. The rent was
tendered, and I said I took it without prejudice to the
right of re-entry, and not as rent, but as compensation
for occupation,
Cross-examined—l had one or two interviews with Mr.
Barnes after I received the money. Mr. Barnes uni-
formly declared that he tendered the money as rent, and
unconditionally. I as uniformly said I should receive
it merely as compensation for the occupation, and not
as rent under an unforfeited lease, as I considered the
lease forfeited. I went to his office on the 27th of Oc-
tober, by previous appointment, for the payment of the
money. Upon that occasion I mentioned to him that
I had a letter I wished to read to him. I think he did
not soy that if I read it, it might prevent his paying the
money. He said be could not take the letter. He re-
jected the letter. When I first saw Barnes, his clerk
came in with the money, 9671. 75., which was the amount
of half a year's rent, which was due at Michaelmas.
Mr. Barnes said. "I tender you this without any eoadi-
tion or reservation attached to it." I said I will ac-
cept it without prejudice to the right of re-entry. I
shall take it as compensation for the occupation merely,
and not as rent under an unforfeited lease. Mr. Barnes
then said, "I do not assent to any such condition. I
tender it as the rent due, and you Inuit take it as such."
I don't think hwadded, "or leave it." I said, I per-
fectly understand what you mean, and I then took up
the money. The theatre has not been opened since 1352.
We seized the "properties" in Dec., 1851, which were
afterwards sold in April, 1853. We remained is pos-
session all the time, but the theatre was opened white
we were in possession. Noblemen and gentlemen inte-
rested purchased the properties. I heard in June last
of the warrants of attorney. In January I found he
had let 16 boxes and 50 stalls. In 1352 and 1853 I
knew of judgments against Lumley.
Be-examined—l did not know of the warrants of at-
torney till June last. The seizure was for arrears of rent
and an advance, making together 10,0001. Several exe-
cution creditors then came forward. There were twelve
intorpleader suits. We only put a man in to protect
ourselves. The properties are now Lord Ward's, and
are at the theatre. In consequence of a correspondence,
Mr. Beabow and Mr. Barna• called on me shortly before
the 26th October, and it was arranged that Mr. Barnes
should bring the rent, and on the 26th of October I told
Barnes he had not made the tender he spoke of. He said
he was ready to do so, and the next day I called upon
him. I sever assented to take the money as rent.
Sir F. Kelly said there was a question as to the pre-
cise words used at the meeting with Mr. Barnes when
the money was paid, and the opinion of the jury must,
therefore, decide as to which party was giving the cor-
rect account of the conversation, and then the matter
might be turned into a special account.
Lord Campbell said that might be done.
Sir F. Kelly then briefly addressed the jury, saying
that it was essential that the point should be clearly un-
derstoal aid decided. Mr. Lumley bad purchased this
valuable property at a sum of 100,0001. There was a
covenant for a forfeiture in case of the rent not being
paid, and it therefore became of the greatest importance
that the rent should be punctually paid, and those who
were interested in the theatre, therefore, were anxious
to take care that the rent should be paid, and Mr.
Barnes, a respectable solicitor, tendered the money as
rent, and would not pay it on any other terms, and he
should call Mr. Barnes, who would tell them exactly
what passed.
Mr, Barnes—l am a partner with Lyme, Barnes, and
Ellis. I recollect the interview on the 20th of October
at Martelli's chambers. He said he was going to bring
an ejectment. I asked what were the breaches on which
he founded it. He said two covenants, the encum-
brances and not opening the theatre. He said he thought
I should have tendered the rent. I replied that I did
not think he would have accepted it if it had been ten-
dered. I then consulted counsel on the effect of pay-
ment of rent. On the 27th October, Martelli called
upon me and produced a letter, which he proposed to
read. I told him that in all probability if he read it, it
would prevent me from making the tender. He made
a motion us if to read it, but I told him I wished to
make the tender pure and simple, and to rub out all
that had passed between us before on the subject, and
my clerk would be in directly with the money. Then
Mr. Martell' put the letter into his pocket again. I never
heard it read, there was no act of reading. My clerk
gante in wal the 9671. 70., and it was placed upon the
table, aid 'I said, "I, on behalf of Lumley, the lessee,
tender to you the half-year's rent due at Michaelmas, for
her Majesty's Theatre, and I do so without any condi-
tion or reservation." Mr. Martelii said, "I am ready
to accept it without prejudice to the right of re-entry."
I replied, " I accepted of no such condition, that as rent
I had tendered it, and as rent he must take it or leave
it." He then said, " I understand what you mean," and
he took the money without further observation. He did
not say, "I take this as compensation for occupation
only, and not as rent for an unforfeited lease," or any-
thing t'e that effect. I had no other object in paying the
rent than. to waive the forfeiture.
Cross-examined--I was acting for a client, Mr. Hop-
kinson. I have no personal interest in the matter. I
did not make any memorandum of what passed.
Mr. Wertner—l am clerk to the last witness. I was
present en this occasion. I laid the money on the table.
Mr. Martelli said "I will accept it without prejudice to
the right of re-entry for breach of covenant." Mr.
13arnas said, "I do not consent to any condition what-
ever take it, or leave it. Martelli said, "I quite under-
aaehl
nsteanitudisevighealteey.oulnameaarid,e"aanradetoakrauapdatathe meitobneeryt.b, Hesasmaied
or the next day—" Mr. Barnes paid Mr. Martelli the
rent." Mr. Barnes said he did not pay it under any
con. Wien whatever, and he took the rent without any
reee ipt being asked for or given.
u est thenia
nits! addressed dt theere jaubr yr
e,
saiTd.hteheArettowrnereey
wane there a waiver of it ? and whether subsequently
any fresh forfeiture had occurred ? But the question
of waiver was the only question for the jury, and that
de pended upon the conversation which took place
General-thr e el
w'esen this money was taken up. Mr. Barnes was de-
easing of inducing Mr. Martell' to take the money as
!tent ; but Mr. Martelli, being in the law himself, was
aware of the effect of doing so, and in addition be had
the opinion of counsel, and a long correspondence had
taken place between them, in which Mr. Martelli always
leclined to accept the money as rent. Mr. Barnes had
4 ndeavoured to induce Mr. Martelli to accept the rent,
,ut without success, and then came the interview in
niestion. Mr. Martelli had but one object, and that
1 vas to prevent the waiver of the forfeiture, and he took
'with him a letter to read to Mr. Barnes, in order that
es'iere might be no dispute about the language used upon
th at occasion, and be communioattd the contents to Mr,