1842. Exch. of Pleas, Lord Chief Baron was of opinion, upon this evidence, that the defendant was not liable, and accordingly directed a nonsuit. GABRIEL v. EVILL. was. Erle now moved for a new trial, and contended that, as against third persons, the circumstances proved at the trial constituted the liability of a partner. The option was in the defendant, and the facts shewed that it was exercised; at all events, there was evidence to go to the jury that it Whenever a concern is carried on with the joint assent of several persons, and any one of them has a right to file a bill for an account of the profits, that is a partnership ab initio. [Lord Abinger, C. B.—The whole agreement here is, that if the defendant shall agree to become a partner with the others from a given day, they shall divide the profits from that day.] It is against the policy of the law that a party shall be allowed to reserve a right to divide the profits of a concern, with such an option in the mean time. Is he, after watching the progress of business for years, to have a right to take away a share of the profits ab initio, if it be a profitable business, or to take the funds as a creditor if it be not? [Rolfe, B.-It is a fallacy to say the defendant becomes a partner from the beginning of the twelve months; he becomes a partner from the time when he declares himself such, with a right retrospectively to an account of the profits. Alderson, B.-And here he declares within the time limited that he will not be a partner.] If he retains the option, the law casts on him the liability of a partner. He had always the power of giving himself the right to an account of the profits: but that is an option which the law will not allow to subsist.-He cited Howell v. Brodie (a). Lord ABINGER, C. B.-The defendant clearly was not a partner until he had exercised the option given him of (a) 6 Bing. N. C. 44; 8 Scott, 372. declaring himself such. He never had a right to an ac- Exch. of Pleas, count of the profits of the concern. 1842. DEBT A Jan. 13. plea in abate ment to an ac tion of debt, of the defendant's coverture, is a dilatory plea requiring an affidavit of veri fication under the stat.4 Anne, c. 16, s. 11: and if there be no such affidavit, the plaintiff is entitled to sign judgment as for want of a plea, although part of the cause of ac tion accrued after the cover Ogle now moved for a rule to shew cause why that judgment should not be set aside for irregularity, upon affidavits which stated, that the action was brought (independently of the bill of exchange) to recover the amount of a dress-maker's bill; that the defendant had intermarried ture. after the acceptance of the bill of exchange, but that a considerable portion of the other claim had accrued since her marriage.—The first question is, whether the plea of coverture is to be considered a dilatory plea within the stat. of 4 Anne, c. 16, s. 11, and therefore requiring an affidavit of verification. It has been decided that it is not a plea falling within the provisions of the stat. 3 & 4 Will. 4, c. 42, s. 8: Jones v. Smith (a). Neither is it, as to the causes of action which accrued before the marriage, a dilatory plea within the statute of Anne. As to them, the defendant's defence is, that she is entirely discharged by her marriage, all her property having passed to her hus (a) 3 M. & W. 526. 1842. LOVELL v. WALKER. Exch. of Pleas, band, and he being the only party against whom execution can issue. [Lord Abinger, C. B.—I have always understood that a dilatory plea is one that does not deny the plaintiff's right of action, but says that it is not brought in the proper form against the proper party. Alderson, B.— This plea only means-I am not liable for this debt during my husband's lifetime.] The defendant says, that by the marriage all her liability is transferred to her husband. It is like a plea of the defendant's bankruptcy. [Alderson, B. -That shews that the defendant never can be liable.] Secondly, the plea of coverture, at all events, covered all that part of the clause which accrued after the marriage, and as to that it was not necessary, before the new rules, to verify it by affidavit. [Alderson, B.-When the plaintiff comes to assess his damages on the writ of inquiry, he will only take out execution for the amount of the goods supplied before the coverture. If he takes out execution for the whole, the defendant may apply to set it aside as to the residue.] He has taken his judgment for the whole, and therefore for too much. [Lord Abinger, C. B.—How could the plaintiff split the plea? The defendant pleads her coverture as to all to which it can apply, and the plea of never indebted as to the rest.] PER CURIAM, Rule refused. Jan. 14. The "public use dered a novelty, is a use in pub CARPENTER and Another v. SMITH. CASE for the infringement of a patent for certain improvements "in locks and other securities applicable to doors and other purposes." Pleas, first, not guilty; secondly, that the plaintiffs were not the true and first in lic, so as to come to the knowledge of others than the inventor, as contradistinguished from the use of it by himself in private; and does not mean a use by the public generally. Therefore, where an improved lock, for which the plaintiff had a patent, had previously been used by an individual on a gate adjoining a public road, for several years; and several dozens of a similar lock had been made at Birmingham from a pattern received from America, and sent abroad; it was held that this constituted such a public use and exercise of the invention as to avoid the patent. ventors of the said improvements; thirdly, that the said Erch. of Pleas, improvements were not a new invention as to the public use and exercise thereof; on which issues were joined. At the trial before Lord Abinger, C. B., at the Middlesex sittings after Michaelmas Term, the main question between the parties was, whether the plaintiffs' invention, the principle of which was a combination of the bolt and latch of the lock within one hasp, was or was not a novelty. A witness called by the defendant proved, that in the year 1816 he received from a house in the United States a pattern of a lock similar in principle to the plaintiffs', and that he procured several dozens to be made at Birmingham according to the pattern, and sent them to America. The defendant also produced a lock similar to that of the plaintiffs, which he proved to have been used for sixteen years on a gate adjoining a public road, belonging to a clergyman of the name of Davies, residing near Birmingham. For the plaintiffs it was contended, that inasmuch as there was no proof that the locks in question had been brought into public general use in this country, the plaintiffs' might nevertheless be considered a new invention. The Lord Chief Baron, in summing up, stated that an invention could not be considered new, which had been in public use before; that the word public was not equivalent to general, but was distinguished from secret use: and he expressed his opinion that the circumstance of a lock, similar in principle to the plaintiff's, being on Mr. Davies's gate for so long a period, and the manufacture of several dozens by an English artist for money, without secrecy, amounted to a public use of those locks. The jury having found a verdict for the defendant, Kelly now moved for a new trial, on the ground of misdirection. The rule of law on this subject is not so narrow as it was stated to be by the learned Judge. The mere manufacture or use of an invention by an individual who VOL. IX. X M. W. 1842. CARPENTER v. SMITH. 1842. CARPENTER บ. SMITH. Exch. of Pleas, may himself have discovered it, even in such a manner that a particular portion of the public in his particular locality may have access to it, but without its being sold or brought into the market, does not constitute such a "public use or exercise" of that invention as to prevent another person, who does not copy it, from afterwards obtaining a patent for the same principle: Morgan v. Seaward (a). [Alderson, B.-How then do you get over the case of the invention for which a patent was avoided, because it had been previously published in a book (6) ?—the principle being, that it could be appropriated by any body, because it had already been given to every body.] All that is required by the statute 21 Jac. 1, c. 3, s. 6, is, that the grant shall be made "to the first and true inventors of such manufactures, which others at the time of the making of the grant did not use." The statute intended to prevent loss to the inventor of a useful instrument, who brings it into public use and exercise, by reason of the making of a former similar invention not brought into practice, or the use whereof may be said to have ceased. [Lord Abinger, C. B.-By how many of the public would you allow it to be known, and what are the public? How vague a rule you would establish for each case! Would you say that the use by a particular club would be a use by the public? or suppose the inventor of a machine gives away a hundred among his friends, and they use it?] In Lewis v. Marling (c), a model and a specification of a machine similar to that for which the patent was granted, had been brought over from America and shewn to several persons: but it was held, that as no machine had been manufactured and brought into use, and as the patentee had not seen that model or specification, he might still be considered the inventor. So, in Jones v. Pearce (d), where it was proved for the defendant that a Mr. Strutt had (a) 2 M. & W. 544. (c) 10 B. & Cr. 22. |