The Sun.
London, England, 1853-11-08 00:00:00

LAW INTELLIGENCE.

EQUITY COURTS.—Nov. 7.

BENNETT V. POWELL.—COUNTY COURT JUDGMENT.
Mr. Bovill (with whom was Mr. W. D. Bruce) moved,
under the recent act in reference to the procedure of the
Court of Chancery, for a decree, under the following cir-
cumstances :—Mr. Powell, the defendant, formerly re-
sided in Australia, together with his wife and family.
Being desirous.of returning to England, he applied to
the plaintiff for a passage in the Countess of Yarborough,
and it was agreed that the passage money for himself
and family should be 601. It was not at that time in Mr.
Powell's power to pay that sum, and he therefore gave
the plaintiff an order upon Messrs. Smith and Nichol,
who, he stated, had certain rents in their hands belong-
ing to him. Mr. Powell himself went ashore at the Cape
of Good Hope, and was there left behind ; his wife and
family were brought to England. Part of the passage
money was paid, but the residue not being forthcoming,
application was made to the gentlemen upon whom the
order above mentioned was given.
Messrs. Smith and Nichol then stated that they re-
ceived no rents for Mr. Powell, but that they were trus-
tees for a certain annuity payable to him, which, how-
ever, was then already overdrawn. An action was then
commenced in the Shoreditch County Court against
Powell for the balance of the passage money, and prose-
cuted to execution._ It appeared that there were no goods
upon which the execution could operate, and the
learned gentisman now applied to this court for a decree
declaring the sum specified in the judgment of the County
Court a charge upon the annuity. In support of the
application, 2 Story, Eq. Jurisprudence, and "Smith v.
Lewis" (1 Vern., 398), were referrect to, as showing that
the Court of Chancery would give effect to the judgment
of a court of record, where that judgment would other-
wise fail of effect.
Mr. Morris, for the defendant, asked that the motion
should be dismissed with costs, on account of there being
no affidavit of the existence of the County Court judg-
ment,
The Vice-Chancellor asked if the plaintiff denied that
the judgment existed ?
Mr. Morris—No Sir.
His Honour said that, under these circumstances, if
the objection were persevered in, the most he should do
would be to order the matter to stand over that evidence
might be given.
Mr. Morris then addressed himself to the merits of the.
case. He contended that, inasmuch as this annuity was
„not liable to be taken.under an execution of the County
Court, the Court of Chancery could not make the judg-
ment of the inferior tribunal a charge upon it. In the
case of "Smith v. Hurst," reported in the "22 Law
Journal Reports," it was expressly said that a court of
equity would not supply but only aid the judgment of a
County Court.
Mr. 13.umphrey appeared for the trustees of the an-

unit}.
Vice-Chancellor said that he was under great
doubt as to the effect of the County Court Act upon this
question. The case being a new one, and counsel hav-
ing expressed a wish to look further into the authorities,
he though t the best course would be to decline making
any order upon this motion, and to leave the suit to pro-
ceed in the ordinary. way to a hearing. The costs of the
motion were to stand over, also, until the hearing.

(Before Vice-Chancellor Sir John Stuart.)

IN THE MATTER OF PERKS' ESTATE, AND IN THE MATTER OF

THE SOUTH STAFFORDSHIRE RAILWAV COMPANY.
Mr. Bacon and Mr. Cole supported a petition by a
tenant for life of land taken by the railway company. It
prayed that a specified part of the dividends of 6301.,
which had been paid into court by the railway company
should be paid to the petitioner. It appeared that in
1850 the railway company had taken possession of the
and that under the General Lands Clauses Act,
the company being in possession, entered into an agree-
ment with the tenant for life for the sale of the entirety
of land fir 6301. It afterwards appeared that part of
the lalvd was freehold and that part was copyhold, and
that as to the copyhold the petitioner was entitled only
to an undivided moiety. Under these circumstances,
-the petition had stood over to enable the petitioner to
bring the heir of the person who represented the other
rcoiet before the court. The petitioner had served the
heir, who was in America, and who did not appear upon
this petiticn. It was asked that, in the absence of the
heir entitled to the other moiety, the dividends of the
moiety of the lands which the petitionter represented
might be paid to him.
_

Sir. Follett and Mr. Kinglake, for the railway com-
pany opposed the petition. The mosey in court repre-
sented the land ; the entirety had been contracted to be
sold to them ; and the only way to enforce the contract
and procure a proper conveyance to the company, was to
restrain the payment of the dividends as asked.
The Vice-Chancellor thought the difficulty in procur-
ing a conveyance might be a ground for rescinding the
contract as between vendor and purchaser ; but this the
company did not ask : they would keep the land. Jus-
tice, however, must be done between the parties, and it
being clear that the company would keep possession of
the land, it was just that the petitioner should have the
interest of so much of the fund as represented the land
which the petitioner could make a good title to. His
Honour, therefore, made an order giving the dividends
to4the petitioner and also giving the costs of the petition
to him to be paid by the company.

COURT OF QUEEN'S BENCH.—Nov. 7.

HEATH V. SMITH.-PATENT CASE.-IMPORTANT QUESTION.

This was an astion to recover damages for the in-
fringement of a patent. On the trial before Mr. Justice
Erle, at Liverpool, the verdict was entered for the
defendant, by the direction of the learned judge.
The Attorney-General now moved for a rule for a new
trial, on the g:ound of misdirection. The invention of
which the plaintiff claimed the discovery was that of a
chemical process by which steel of a superior quality
could be manufactured from an inferior description of
iron, and there was no doubt as to its utility and import-
ance. The defendant, however, proved that in five in-
_

stances the same proces as that ivhich the plaintiff had
discovered had been employed by other persons before
toe plaintiff took out his patent, although he believed it
to be an original discovery. None of these persons bad
communicated their discovery to the public, but- had
used it for their own benefit in their own manufac-
tories. The learned judge had ruled that this took
away the novelty of the plaintiff's invention. He
(the Attorney-General) contended that his lordship
had taken a mistaken view, for if his ruling were cor-
rect an invention of the greatest importance might be
lost for ever to the public, as it would be the interest of
the discoverers to keep the secret to themselves and use
it for their own benefit. This action was carried on by
the widow and administratrix of Mr. Heath, who was
now dead, after having been for years involved in litiga-
tion, and endeavouring to support the validity of his
patent against the manufacturers of Sheffield, who had
derived great advantage from it.
Lord Campbell said the question raised was one which
ought to be considered.
Rule nisi.

COURT OF EXCHEQUER.—Nov. 7
Sittings in Banco.
(Before the Chief Baron, Mr. Baron Parke, Mr. Baron
Alderson, and Mr. Baron Platt.)
COMMIS V. JOHNSON.—THE COST-BOOR SYSTEM.
This was an action tried at the last assizes at Exeter
before Mr. Justice Talfourd, to recover the sumine of 941.
a m
for coals, &c., supplied by the plaintiff to called
the West Down Mine, in the county of Devon, when a
verdict was found for the plaintiff for the amount
claimed.
Mr. Slade now moved for a rule for a new trial, on
the ground of misdirection, and that the verdict was
against the evidence. It appeared that the mine was
divided into 1,064 shares, and was worked on the
cost-book system. In the autumn of 1849, the de-
fendant expressed a wish to Diamond, the then
purser, to relinquish sixty-four shares which be held,
he having informed the defendant that there was ore
enough on the surface to pay all the liabilities. A
person called Robins subsequently became the purser
of the mine, and upon his application to the de-
fendant to know in what way he had disposed of his
shares, he informed him that he had relinquished them
at the time name named. It was some time after this
period that the plaintiff's debt was contracted. At the
trial the defendant could not name the precise time in
the autumn of 1849 when he relinquished the shares, but
said he could tell if allowed to refresh his memory by
reference to a memorandum book, which he had made
up at the end of that year, and in which he had entered
some minutes of the transaction. The learned judge,
however, refused to allow him to refer to the book, be-
cause it was not sufficiently recent. It was also con-
tended on the part of the defendant that there were two
ways of disposing of shares in a mine, one by transfering'
them to some person in writing in the ordinary way, and
another by relinquishing the shares, by notice to the
purser, for the benefit of the remaining shareholders,
after which it was urged that the purser could not pledge
the credit of the person so relinquishing. This was held
in the case of " Northey v. Johnson" in the Court of
Queen's Beneh. The learned counsel complained that
'7 Justice Talfourd had not put the question of relin-
quishment to the jury with sufficient clearness and
precision.
The court felt disposed to grant a rule on the first
case,
point, but
would
whole consult the learned judge as to the
(Sittings at Nisi Prins, before Mr. Baron Marton and
Two causes out oCra mliosnt Juries.)
postterepof three,i) one having been
disposed of. They were devoid of
inst.oned, were j

COURT OF BANTIT,
(BIN
NfoßreE
CMHlrv.EnCso.nii—Tpis':seioej:efc:rPryT?:capaat
sYal:vee'le.oani)friebTnothr.oo
--:- BILL,
There was a dividend meetini;,"
chillers, of the Globe Tavern, -1,,1,;
for 1941, on behalf of
the
Mr. Murrough tendered a
Mr. William Parkes, surgeon, of
onpoptosoe:la:hce p:oojon-
street.
Mr. Reed, for the assignees,
He submitted
the ground that Mr. Parkes had
his medicines, but also for his visits.
that the gentleman could not charge for both, but
make his election whether to charge for medicine nuist
or at.
taan .
of said nothing could be clearer than that
4. 4; ;Cr:AL.". .0."*;• both a licentiate of the Apothcca-
A.,4: ,4 '2' ''•;* ,4*
4' ~,. . ..• I, ember of the College of Surgeons
. ..e,,, ,7..4, .O .r both medicines and attendance.
c. 31', .. 4" ' iif'i . ....- .. he cited a case in 4 Carrington.
~,,e'. ',x . - '..; f; : Smith v. Chambers," 2 Phillips's
r 4
'iitiiit . - ,ut`: '-'; ::.• - his was now an established point
?+.1.., "'"' '444 lair ;42 7, , y ; and the surgeons at the west
-.)chere tinif4-4. ty in the habit of charging both for
medicines and attendance.
Mr. Reed contended that, at any rate, if the medicines