the guardians have been sued on their contract, after many ineffectual attempts to procure funds from successive parish officers, but never by way of charge on the rates: the guardians have ordered the defendants to make a separate rate for raising the required sum, which the defendants have disobeyed, and the mandamus is for the purpose of enforcing obedience.

The section is framed with remarkable carelessness, and it is impossible to determine with certainty its meaning in all parts. It begins with supposing a representation made either by guardians of unions or parish or majority of parish officers competent to make a rate, and then, without any enumeration of these bodies, or direct reference to them all, empowers the poor-law commissioners to direct "such guardians" to appoint a fit person, and to make provision for paying the costs" either by a separate rate, or by a charge on the poor-rates, as they may see fit." It may well be doubted whether the words" such guardians" are not used by way of reference to all the particular bodies before enumerated, and whether the order of the poor-law commissioners ought not to issue to that body, whichever it was, from whom the representation came: they clearly must include both descriptions of guardians; and the doubt is the stronger when it is remembered, that, at the time of the act passing, a large proportion of the parishes in England were not combined in unions. If this be the true meaning, then, as the representation in the present instance came from the parish officers, the order was bad, for not being addressed to them, but to the guardians. Supposing, however, the order to be well made in this respect, a more serious doubt arises on the meaning of the words, "as they may see fit." Do they place the discretion which is to determine the mode of raising the funds in the poor-law commissioners or in the guardians, in those who issue the order in the first instance under which the survey is made, or in those to whom it is issued? The guardians are the last expressed antecedent, but if the words "it shall be lawful for the poor-law commissioners are to be read as governing each clause of the sentence, then they become the last antecedent, so that the application of the ordinary rule of construction will not solve the difficulty. It appears to us not necessary to express any decided opinion on this question, for if we agree with the prosecutors that, "as they may see fit" must be read as if it were the guardians see fit," still it is clear that the guardians can only acquire the discretion in consequence of a direction from the poor-law commissioners: these last must first direct them to provide for the payment in one or other of the two ways, according to their discretion, before they have power to provide for it in either. But the poor-law commissioners have made no such order, they have ordered a charge on the rates, and, assuming that to be void, it only leaves the order of the guardians as one issuing from them mero motu, and as all their power proceeds from the statute, and the statute gives them no such original power, it seems to us that this order of theirs was clearly invalid.

as

This mode of decision makes it unnecessary to decide on the validity of the order of the poor-law commissioners. The guardians must, of course, contend that it is bad in part; but it has never been removed by certiorari into this Court, and quashed; and the defendants, therefore, contend, that, by the 105th section of stat. 4 & 5 Will. 4, c. 76, it must be obeyed, even if bad. That section, indeed, only provides in terms for orders removed by certiorari. Whether it extends to orders, bad in themselves, but not removed, it is unnecessary to determine: if it does, it becomes an additional reason for holding the order of the guardians, which is made in contravention of it, invalid; if it does not, and we may set it aside in this collateral way, still it leaves the guardians without any authority to make the order in question. We are of opinion, there

fore, that judgment must be for the defendants.Judgment for defendants*.

BAIL COURT.-EASTER TERM.
PEMBREY V. JONES.-May 7.

Where it was alleged in an Affidavit that certain Sums, sworn to in an Affidavit of Increase, had not been paid, the Court directed the Taxation to be reviewed by the Master.

Sir J. Bayley had obtained a rule in this case to shew cause why the taxation should not be reviewed by the Master, founded on an affidavit in which the deponent averred that he had heard and believed that certain sums of money, alleged in an affidavit of increase before the Master to have been paid to certain witnesses, were not at the time so paid, although the parties had afterwards received the money. The costs, as taxed, had been paid on the 18th August.

Chilton and Peacock shewed cause.-It was not competent to the defendant to impugn the allocatur in this manner after so long a lapse of time, and on mere hearsay. When he impugns what has been established before the Master by affidavit, a party ought to support his statement by full and satisfactory evidence; this the defendant had failed to do. The Court would not open the allocatur. If the affidavit impugned was false, an indictment for perjury should be brought. There was not evidence before the Court to establish the charge of perjury, and it, therefore, would not interfere, especially as the money was really due, and had actually been paid.

Sir J. Bayley.-The Court would interfere if it was not satisfied that the money was paid at the time alleged. The case of Brett v. Harrison (14 Law Journ., N. S.,) was decisive on that point. There were two points to consider: the actual payment, and the period of payment. If the plaintiff had produced the receipts for the money it would have settled the matter. He had not ventured so to do, and the conclusion to be drawn from that was obvious.

COLERIDGE, J., discharged the rule, with costs.Rule discharged.

Where a Defendant requests the Plaintiff's Attorney to JOEL v. DICKER.-May 1 and 24. procure for him an Attorney to attest his Execution of a Warrant of Attorney, the Attestation of an Attorney so introduced to the Defendant is good within Sect. 9 of 1 & 2 Vict. c. 110.

A Warrant of Attorney will not be set aside on the Ground of its omitting any Reference to collateral Securities.

The defendant in this cause having occasion to raise a loan, borrowed the sum of 4007. from the plaintiff, (2551. to be in goods), and delivered several bills of exchange, and signed a warrant of attorney as security for that amount. The warrant contained no reference to the bills of exchange, and was attested on behalf of the defendant by an attorney to whom he was a stranger, and who was introduced to him by the plaintiff's attorney, but at his request to find one for him, as he did not wish his own attorney to know of the transaction. The attorney thus introduced, and who it appeared had had a previous communication with the plaintiff's attorney that day, but was not connected with nor usually acted for him, then explained the nature of the instrument to the defendant, but did not make any reference to the bills, as, in fact, he was ignorant of their existence. The time named in the warrant was earlier than the time at which all the bills would be due; and the plaintiff thought proper to sign judgment when only Corrie obtained a rule to set aside the warrant of attorone of the bills had actually become due. Thereupon *Reported by U. Corbett, Esq., jun.

ney and the judgment thereon, on the ground, first, that the warrant was not duly attested according to the provisions of 1 & 2 Vict. c. 110, s. 9; and, secondly, that no reference was made therein to the bills of exchange. Petersdorff shewed cause.-First, the defendant was perfectly aware that he was entitled to have an attorney to act on his behalf, and to attest the warrant, as was proved by the remark he made as to keeping the transaction secret from his own attorney. The attorney actually employed fully explained the nature of the instrument, and thereby the defendant received all the benefit, which it was the object of the act that he should enjoy. It was distinctly laid down in Pease v. Wells, (8 Dowl. P. C. 626), that the mere fact of the plaintiff's attorney suggesting the name of another attorney to act for the defendant, and even his paying such attorney, would not invalidate a cognovit; and in Hall v. Dale (8 Dowl. P. C. 599) and Taylor v. Nicholl, (Id. 242), that if a defendant adopt an attorney suggested by the plaintiff's attorney, that is a sufficient nomination under the 1 & 2 Vict. As the only ground of suspicion in the present case was a suggestion of this kind, the objection must fall to the ground. Secondly, warrants were not void under the general rule of court, unless the defects can be brought strictly within the act of Parliament. It has been laid down in a series of cases, that, even if an attorney neglects to insert in a warrant the defeazance to which it is subject, or to state in the defeazance a collateral security of the debt, according to the R., M. T., 42 Geo. 3, yet the warrant is not thereby avoided against an innocent party, although the attorney is guilty of a breach of duty, and is answerable, therefore, on motion. (Shaw v. Evans, 14 East, 596; Partridge v. Frazer and Others, 7 Taunt. 307; Sansom and Others v. Goode, 2 B. & A. 568). These cases were precisely applicable. There was no deception in the case; the defendant knew perfectly well the terms of the defeazance, and if any reference had been intended to the payment of the bills, it would have been stated in the warrant. The Court could not set aside the warrant unless it was absolutely void. Corrie, contra.-This was precisely one of the cases contemplated by the act. The attorney employed on behalf of a defendant in a transaction like this, ought to be really his attorney-ought to be a person known to and in confidential communication with him. Here he was exactly the reverse of all this; he was a perfect stranger to the defendant; his intervention was a mere formality; he was introduced and virtually nominated by the plaintiff's attorney, with whom he had been in communication that very day. The defendant had had no private interview, which might have made a difference, for in Pease v. Wells, cited on the other side, that circumstance was expressly relied on in the judgment. There were two cases quite in point. In Barnes v. Pendrey, (7 Dowl. P. C. 779), the defendant was about to execute a cognovit, but was unacquainted with any attorney, and, at his request, the plaintiff's attorney sent his clerk for one, who came and acted for the defendant, (a request to that effect being written by the plaintiff on the margin of the cognovit), and explained the nature of the instrument to him. The defendant previously was quite unacquainted with the attorney so acting for him. The Court held, that, under these circumstances, the defendant had not exercised any discretion in choosing the attorney, and set aside the cognovit. It was difficult to trace the slightest distinction between the circumstances of that case and the present. So, in Griffin v. Bristow, (6 Mee. & W. 807), the plaintiff's attorney told the defendant the warrant must be signed in the presence of some professional man, and he would procure one to attest it. They accordingly repaired to an attorney. The plaintiff's attorney put the paper into his hands, and read it over and explained it to the defendant, and asked him if he

wished him to witness the execution of it as his attorney, and did so at his request; yet the Court held that the attorney was not expressly named by the defendant so as to satisfy the provisions of the 1 & 2 Vict. c. 110. In the present case, the circumstance that the attorney did not know of the existence of the bills of exchange, and, therefore, did not point out to the defendant that judgment might be signed upon the warrant without reference to them, shewed that he was not such an attorney as the act contemplated. Secondly, though it could not be contended that the warrant was absolutely void under the act, yet, looking at the rule of court, and at the decided cases, the Court would exercise its general jurisdiction over instruments of this nature, and set them aside when it saw good reason. (Morell v. Dubost, 3 Taunt. 234). It is perfectly clear that here the real consideration has not been stated, and the object of the act and of the rule of court being to ascertain the real objects of the instrument, the Court would be disposed to leave the plaintiff to seek his remedy on the bills of exchange, when the real terms of the transaction and the consideration actually given might be ascertained. COLERIDGE, J., discharged the rule, with costs.Rule discharged.

COURT OF COMMON PLEAS.-EASTER TERM, THE ELECTRIC TELEGRAPH COMPANY v. NOTT and Others. -May 6.

Patent-Particulars of Infringement.

This Court will not compel the Plaintiff, in an Action brought for the Infringement of a Patent, to furnish the Defendant with the Particulars of such Infringement, if the Granting of such an Application would be likely to embarrass the Plaintiff.

This was an application, made on behalf of the defendants, for a rule compelling the plaintiffs to furnish to the defendants particulars of the infringements of the patent, in respect of which this action was brought. The plaintiffs were the possessors of three several patents, taken out in respect of the electric telegraph; one in 1837, one in 1840, and one in 1842. It was in respect of the patent of 1837 that the present action had been brought, and other actions had been commenced against the same defendants in respect of the infringement of the two other patents, and in which actions similar applications were likewise made, and in all of which rules nisi had been obtained. It appeared that proceedings had been taken in Chancery by the plaintiffs against all these defendants by way of injunction, the bills for which had been dismissed, with liberty to the plaintiffs to bring actions at law against the defendants. The several specifications contained nine heads of claim, and referred to various drawings. The affidavits of the attorney of the defendants on the one hand, and of the attorney of the plaintiffs on the other, (and which were the only affidavits made on either side), stated the above facts, and also, that the declaration in this action had been served on the 6th April; on the 12th the attorney of the defendants wrote to the attorney of the plaintiffs for particulars of the infringements complained of. A reply was sent, to the effect that the apparatus erected in the Blisworth and Peterborough line constituted the infringement.

M. Smith and Grove now shewed cause.-There is no ground for this application. No possibility exists of the defendants being embarrassed or misled by the particulars not being granted; they must be well aware, from the proceedings adopted in Chancery, of the nature of the infringements which the plaintiffs complain of. So, again, the plaintiffs; to give further information would only embarrass them, without affording the defendants any further light than they at present possess. There would be great difficulty in drawing

up a document which would satisfy the terms of this rule, and at Nisi Prius all kinds of questions would be raised as to the construction to be put upon the document when drawn, and the variances which might exist between it and the specification. The Courts already have had quite difficulty enough in dealing with the notices of objection which are required; they should be slow to increase such difficulty by granting such an innovation in the conduct of patent causes, as making absolute the present rule would be. Perry v. Mitchell (1 Web. Pat. Cas. 269) is very distinguishable from the present case. The specification in that case set out thirteen different pens, and it was only reasonable to ask the plaintiff to say in respect of what particular pens he charged the defendant with infringing his patent, and the particulars given in that case accordingly were, "the pens to which the declaration in this cause refers, and the numbers of such pens in the specifications referred to in the declaration, are as follows:" [and then were set forth the numbers and figures of the diagram.] In the present case, the subject-matter of the invention is of so complicated a nature, that it is impossible to say in respect of what distinct head of claim we charge the defendants with infringing.

Webster, contra.-The case of Perry v. Mitchell is directly in point, and, unless this Court are prepared to overrule that case, they ought to make this rule absolute. The present application is made to the equitable jurisdiction of the Court. The granting it would afford some facility to the defendants in preparing their proofs for the trial, and no embarrassment would be caused to the plaintiffs. All that the defendants ask the plaintiffs by this rule is," for particulars in writing of the alleged infringements for which this action is brought." No difficulty could arise to the plaintiffs in giving the defendants this information. By bringing three actions when one would have sufficed, they have done their best hitherto to harass the defendants, and the Court, seeing this, should be disposed to grant the relief sought for by this rule.

WILDE, C. J.-I am of opinion that the rule which has been obtained on the part of the defendants in this case ought not to be made absolute. I arrive at this conclusion, not because I have any doubt of the power of the Court to interfere in the manner sought for, but because I think that this is not an opportunity upon which that power could be reasonably exercised. If I could see in the present case that this would be a failure of justice unless this application were granted,—if I could think that the defendants were likely to be surprised, or some misadventure would be likely to befal them at the trial because they were insufficiently informed, then, following the principle laid down by the courts in former cases, this rule ought to be made absolute. The case of Perry v. Mitchell, which has been cited in argument, is an application of that same principle. The plaintiff in that case had a patent for several distinct pens, each of which might well have formed the subject of a distinct patent; it was only reasonable therefore to call upon him to say in respect of what pen it was he charged the defendant with having infringed his patent. Such information did not require any complicated statement to be drawn by the plaintiff, nor was the furnishing of it likely to embarrass him at all in the conduct of his cause. Observations have been made on the part of the defendants upon the fact of three actions having been brought in this case. Upon a matter of such a complicated nature as the subject of three several patents is, I think the plaintiffs have been well advised in the course they have taken. By charging an infringement of each patent in a separate action, a far simpler issue is likely to be raised for the consideration of the jury, than if one action in respect of all had been brought. This, therefore, affords no ground for the present application. Another source

of embarrassment which would be occasioned the plaintiffs, would be the difficulty of drawing a document which would contain the information sought for. We all know the difficulties attending the drawing up of a specification. This instrument would be quite as difficult to frame, and at Nisi Prius the ingenuity of counsel would raise all kinds of questions upon its construction and its variance with the specification. On the other hand, are the defendants likely to be surprised at the trial by withholding from them the information they seek to obtain by the present rule? I think not. It appears by the affidavits that application has already been made to the Court of Chancery relative to any infringements complained of; information must have been given to them then, and in such a form that they were able to draw up affidavits in answer to those upon which the injunction was obtained. If, notwithstanding this, it should appear hereafter that the defendants are taken by surprise at the trial, they may subsequently apply to this court for relief. I may also observe, as another reason for thinking that this rule should not be made absolute, and in answer to what Mr. Webster has said relative to the nine heads of claim which the plaintiffs point out in their specification, that I am not prepared to say that the patent granted to the plaintiff's is in respect of each head of claim, but it may well be granted in respect of combinations of two or more of them. If, therefore, we compelled them to say that the infringement they complained of was in respect of head No. 6, or head No. 8, they might be very much embarrassed indeed in the conduct of their case. For these reasons I think that this rule should be discharged. COLTMAN, J., CRESSWELL, J., and VAUGHAN WILLIAMS, J., concurred.-Rule discharged.

TRINITY TERM.

ALDER v. BOYLE.-June 7.

Construction of Agreement-Commission on Sale. The Plaintiff acted as Agent in the Sale and Exchange of the Advowson of the Defendant with that of one W. B., under an Agreement, by which the Plaintiff was to be paid a Commission "when the Abstract of Conveyance is drawn out." An Abstract of the Title to the Defendant's Advowson was delivered, but not one from W. B., of the Title to his Advowson, nor was anything further done in the Matter:-Held, that, whatever might be the Construction of the Agreement, the Event had not arrived when the Plaintiff's Commission was to be paid.

Assumpsit for work and labour, and commission. Plea, non assumpsit. At the trial, before Williams, J., at the sittings in Middlesex of the present term, it appeared, that the action was brought by the plaintiff, as a clerical agent, to recover a sum of money due for commission in effecting the sale and exchange of the defendant's rectory with the Rev. William Brown, the rector of Little Kimble, Bucks, under the following agreement, dated the 10th November, 1846, and signed by the defendant:-" I, the undersigned, agree to sell to the Rev. William Brown the advowson of the rectory of Freshford, near Bath, for the sum of 4600%., and to purchase of him the rectory of Little Kimble, Bucks, for the sum of 1000l. The undersigned also agrees to pay to Mr. George Alder, the agent in the transaction, the sum of 100/., one-third down, the remaining two-thirds when the abstract of conveyance is drawn out." The sum of 331. 68. 8d., being the onethird of the commission, had been paid to the plaintiff, and, on the 1st December following, the abstract of title of the defendant to his advowson had been delivered, but nothing further had been done in pursuance of the agreement; and the question as to the plaintiff's right to recover turned on the meaning of the words "when the abstract of conveyance is drawn out," and

whether the condition on which the money was payable had been satisfied by the delivery of the defendant's title. Under the direction of the learned judge, a verdict was found for defendant, leave being reserved to the plaintiff to move to enter a verdict for 667. 138. 4d., if the Court should be of opinion the plaintiff was entitled to recover.

Byles, Serjt., now moved accordingly.-It is said on the part of the defendant, that the construction of this agreement is, that the balance was to be paid only when the deed of conveyance was delivered, and that the words "abstract of conveyance" mean "deed of conveyance," or, at all events, that the money was not to be paid until an abstract of the title to Brown's advowson had been delivered. But it is submitted that is not so, and that when the abstract of the title of the defendant was delivered, all had been done to entitle the plaintiff to his commission. If there is any uncertainty in the words, the maxim, " verba chartarum fortius accipiuntur contra proferentem" will apply. But it is absurd to suppose that an abstract of conveyance meant the deed of conveyance; and the construction contended for by the defendant is clearly incorrect.

WILDE, C. J.-I am of opinion that there ought to be no rule. It appears to me to be plain that the money was only to be paid on an event which has not happened. Whether the agreement meant that abstracts of title from each party should be delivered, or whether it meant, that, though an abstract of title be delivered, yet, until the draft of the deed of conveyance should be prepared, (which points to a time when the parties were to receive the benefit of the agent's service), the money was not to be payable, may be open to some argument; but that it meant one or the other of these it is quite clear, and, for the present purpose, it is not material which it meant. Now, it does not appear that the defendant had the means of carrying the treaty into effect; and for aught that we know to the contrary, all that has been done by the plaintiff may have been abortive, and, therefore, the plaintiff has not made out his claim by which he was to be paid the commission, when an event, as stated in the agreement, had arrived. Although there is some uncertainty in the wording of the agreement, I think it clear that the event had not arrived when the money was payable. The rest of the Court concurred.-Rule refused.

COURT OF EXCHEQUER.-EASTER TERM.

SIMMONDS v. EDWARDS.-April 30.

By a Marriage Settlement executed in 1841 some Furniture the Property of the intended Husband was conveyed to Trustees for his Use, and continued after the Marriage to be used by him and his Wife. In 1846 he committed an Act of Bankruptcy and was made Bankrupt:-Held, that the Furniture did not pass to his Assignees under the 6 Geo. 4, c. 16, s. 72, as Goods in the Possession Order or Disposition of a Bank

rupt.

At the trial of a feigned issue before Pollock, C. B., the following facts appeared in evidence. A deed of settlement bearing date 8th March, 1841, after reciting that a marriage was contemplated between George B. and Dulcibella D., and that G. B. was then in possession of and entitled as owner to certain articles of furniture, assigned that furniture to the plaintiffs as trustees for his use. The marriage took place and the furniture in question was jointly used by the husband and wife until they were seized by the sheriff under an execution on the 25th August, 1846. G. B. having committed an act of bankruptcy on the 31st August in that year, a fiat was issued against him a few days after, under which the defendants were appointed assignees; and the question was whether the above-men

tioned articles of furniture passed to the assignees under the 6 Geo. 4, c. 16, s. 72, which enacts that "if any bankrupt at the time he becomes bankrupt, shall by the consent and permission of the true owner thereof, have in his possession order or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sale alteration or disposition as owner, the commissioners shall have power to sell and dispose of the same for the benefit of the creditors &c." The jury found a verdict for the plaintiff, the Lord Chief Baron reserving leave to the defendant's counsel to move to enter it the other way.

Knowles moved accordingly.-It is submitted that this case comes within the statute. Jarman v. Woolloton (3 T. R. 618) seems at first sight an authority to the contrary, in which it was held that where a woman before her marriage, with the consent of her intended husband, conveyed all her stock in trade and furniture to trustees to enable her to carry on business separately, and the husband did not interfere with them and there was no fraud, those effects did not pass to his assignees under the analogous clause of the old Bankrupt Act, 21 Jac. 1, c. 19. There is however this distinction, that here the goods originally belonged to the husband; which brings the case more immediately within the mischief which the statute intended to prevent, namely the imposing on the public by the appearance of property in the bankrupt. In Haselinton v. Gill, reported in the note to Jarman v. Woolloton, Lord Mansfield says, "If the settlement had been made after marriage, or the husband had carried on the trade in his own name and contracted debts in it, that would have varied the case."

POLLOCK, C. B.-I reserved this point at the trial because I was requested to do so: but there is nothing in this distinction sought to be taken. This furniture was conveyed to the trustees by a deed for good consideration; and passed to them as effectually as if it had been the property of the intended wife.

PARKE, B.-The very best explanation of the law on this subject is to be found in the judgment of Lord Redesdale in the case of Joy v. Campbell, (1 Sch. & Lef. 328), to which I have frequently had occasion to refer. That case arose on the Irish Bankrupt Act of 11 & 12 Geo. 3, c. 8, s. 9, corresponding to the statute of James 1, in this country. Lord Redesdale there describes the object of the act thus:-"The clause which refers to chattels in the order and disposition of the bankrupt with consent of the true owner, means, where the possession order and disposition is in a person who is not the owner, to whom they do not properly belong and who ought not to have them, but whom the owner permits, unconsciously as the act supposes, to have such order and disposition. The object was to prevent deceit by a trader from the visible possession of a property to which he was not entitled: but in the construction of the act, the nature of the possession has always been considered, and the words have been construed to mean possession of the goods of another with the consent of the true owner. Now who was the true owner of this property after the death of William? The true owner was Thomas, subject to the payment of the debts and legacies of William. Thomas was the acting executor and residuary legatee, and the possession was therefore according to his right." So here, the possession of the chattel was according to the right of the party; and consequently the statute does not apply. In the case put by Lord Mansfield in Haselinton v. Gill, the husband would be using the articles contrary to the terms of the trust; for it would be no part of his business to carry on the trade in his own name. In the present case everything done has been in accordance with the trusts.

ROLFE and PLATT, BB., concurred.—Rule refused.