English Cases.

recover compensation for his decease, which was alleged to have been caused by the neglect of the defendant's servant in driving an omnibus belonging to the defendant. The intestate was a passenger, in January, 1849, in an omnibus, running from Bishopsgate-street to Hackney, and was put down opposite Seabright-street Shoreditch, a few yards from the pavement on the near side. The defendant's omnibus passing on the same side, the intestate was knocked down and run over, and shortly afterwards expired in consequence of such injuries received. Mr. Justice Williams, who presided at the trial, directed the jury, that if they were of opinion the accident was caused by the wrongful act, neglect, or default of the defendant's servant, they would find for the plaintiff; but that if in their opinion the death was purely the result of an accident, or that by the exercise of ordinary care on the part of the deceased or of the driver of the other omnibus, the accident might have been avoided, to find for the defendThe jury having found a verdict for the defendant, a rule nisi for a new trial had been obtained on the ground of misdirection, and that, although the other driver might have been guilty of neglect in setting the deceased down in the road when the defendant's omnibus was behind, yet if the driver of the latter had by his negligence conduced to the accident, the defendant was still liable.

ant.

Talfourd, Queen's Serjt. against the rule, cited Davis v. Mann, 10 M. & W. 546.

Humphreys, Q. C., and J. Cobbett, in support of the rule, cited Butterfield v. Forrester, 11 East, 60.

BY THE COURT:-Generally in cases of careless or negligent driving, the plaintiff is entitled to maintain an action for injuries sustained by him, unless he himself was guilty of such negligence as would excuse the defendant; but here the accident was not the result of the personal neglect of the plaintiff's intestate. The plaintiff had, however, entered into a contract with the master of the omnibus in which he travelled by selecting it in preference to others and having employed it to convey him, and therefore if that omnibus conduced to the accident, the action could not be maintained. As the jury has found for the defendant they must have considered that the driver of the intestate's omnibus was conducive to the accident. The case of Bridge v. Grand Junction Railway Company, 3 M. & W. 246 is similar to the present, and the rule must be discharged.

English Cases.

WYLDE V. HARRIS.-12th June, 1849.

BREACH OF PROMISE OF MARRIAGE.-CONSIDERATION.

Where the defendant, who was at the time married, made a promise of marriage to the plaintiff-Held, that the circumstance of the defendant's being so married did not affect the plaintiff's remedy for a breach of the contract; and a rule to arrest judgment obtained in an action was discharged.

THIS action was brought for breach of promise of marriage, and the plaintiff obtained a verdict. It appeared that the defendant had promised to marry the plaintiff, and the declaration stated that, in consideration of such promise, the plaintiff had agreed to remain single for a reasonable time and marry the defendant, and then alleged that she did remain single and unmarried until it was discovered that, at the time of the promise, the defendant was married.

A rule nisi had been obtained to arrest the judgment, on the ground that there was no consideration to the promise, as the defendant was married at the time thereof.

Huddlestone, in support of the rule.

Wilkins, Serjt., contra.

THE COURT said that the defendant could not set up his fraudulent concealment of his marriage in order to release him from his contract. The plaintiff had fulfilled her part of the promise, as she had continued single and unmarried for a reasonable time, and the rule must therefore be discharged.

Exchequer Chamber.

REGINA v. MARTIN.-30th April, 1849.

INDICTMENT-VENUE-ERROR-JURISDICTION.

Where the venue in a count of an indictment against the receiver of a stolen sheep was laid in Dorsetshire, whereas the act was committed in Somersetshire, and there was nothing in the count to show jurisdiction :—Held, that the conviction was bad and judgment ordered to be arrested.

THE prisoner was indicted at the Dorset sessions, together with the two principals for sheep-stealing, and convicted on the 7th count as the receiver, well knowing that the animal had been stolen, and the two principals on the 5th count. After verdict was given, the counsel for the prisoner objected that the venue had been wrongfully laid, in the 7th count, inasmuch as it stated the offence had been commit

Review.

ted at Trent, in Somersetshire, while the venue was laid in Dorsetshire.

Ffoohs in support of the conviction.

BY THE COURT :-The seventh count without showing any fact to give a jurisdiction in the county of Dorset, lays the venue in that county for an offence committed in Somersetshire. Upon such a state of things we cannot give judgment against the prisoner in favor of the prosecution. The court gives no jurisdiction, and the absence of any thing on the face of the count to show the jurisdiction, such jurisdiction will not be presumed to exist. The conviction must, therefore, be quashed, and judgment arrested.

SIR EDWARD COKE AND THE DOCTORS.

SIR EDWARD COKE being very infirm in body, a friend of his sent him two or three doctors to regulate his health, whom he told that he had never taken physic since he was born, and would not now begin, and that he had now upon him a disease which all the drugs of Asia, the gold of Africa, the silver of America, nor all the doctors could cure,-old age. Letter from the Rev. Mr. Mead, Jan. 30, 1630, 1. Court and Times of Charles the First, vol. 2, 93, 4.

Review.

Reports of cases determined in the District Court of the United States for the District of Maine with some opinions of the District Judge in cases determined in the Circuit Court, 18391849. By Edward H. Davies, Counsellor at Law. Portland: Printed by Thurston & Co., 1839.

To those gentlemen who practice in the U. S. Courts in Admiralty, this volume of the Reports of Judge Ware must prove very acceptable. They contain a selection of cases in the U. S. District Court, principally in Admiralty, decided by that learned Judge since the publication of his Reports and also some opinions pronounced by him in cases decided in the Circuit Court. They also contain a few decisions in bankruptcy, presenting points of general interest.

The reputation of Judge Ware as an able jurist and a finished scholar is so well known to the bar that any remarks we might make would seem to be out of place.

We heartily recommend this volume to the profession and doubt not but it will be eagerly sought for.

STEPHEN R. PARKHURST V. ISRAEL KINSMAN AND JAMES W. HALE.

PATENT CASE.

INJUNCTION-SUPPLEMENTAL BILL-PARTIES.

THIS patent case having been greatly litigated, and presenting several important questions, we have been induced to collect and report the various decisions under it.

On the 5th of April, 1847, a motion was made before both judges of the court for an injunction. The motion was supported by bill and affidavits, and opposed by affidavits. The case was heard at intervals, on the 5th April, June 19, and June 28, and was argued by

Gifford and S. P. Staples, for the complainant; and by

D. C. Barnard, for the defendant.

July 1, 1847. The court decided the following points
THE COURT find upon the bill and proofs in this case-

1. That the burring machines constructed and sold by the defendant Kinsman, are, in principle and mode of operation, the same substantially as the machine described in the plaintiff's specification, filed July 29, 1844, and secured to him by his patent of May 1, 1845.

2. That the arrangement of plates or rings, with their teeth, and with paste-board packing, upon a cylinder, as described in the plaintiff's patent, and used by him, was an original invention and discovery of the plaintiff, but the same was invented and constructed by Charles G. Sargeant, of Lowell, Massachusetts, prior to the invention and discovery of the plaintiff.

3. But it is furthermore found by the court, that the invention and discovery of said Sargeant was not publicly known, or in use; nor had

U. S. Circuit Court-Parkhurst v. Kinsman and Hale.

the same come to the knowledge of the complainant prior to his discovery and invention, and filing his specification as aforesaid.

4. It is found by the court, that the agreement of February 9, 1846, between the complainant and the said Kinsman, was made and entered into by Kinsman with full notice and knowledge of the facts aforesaid, and is valid and obligatory upon him; and that the complainant is entitled thereupon in this action to the discovery and account prayed by the bill; and also, to enjoin the said Kinsman from further making and vending the said machine, in violation of said agreement.

Wherefore it is ordered and decreed by the court, that an injunction issue against the said Israel Kinsman, &c., pursuant to the prayer of said bill.

January 19, 1848. Application was made to the court by the complainant, for leave to file a supplemental bill, with new allegations, and new parties defendants thereto.

The motion was heard before Judge Betts, District Judge sitting in the Circuit Court.

The case was argued by

Gifford and Staples, for the complainant,

Clark and Jordan, for Kinsman, and

Gerard, for Goddard.

January 25. BETTS, J. delivered the following opinion: Application is made by petition, on the part of the complainant, for leave to file a supplemental bill, making Calvin L. Goddard a party to the suit, and also to add new charges against the defendant Kinsman, in part, on facts which have occurred since the original bill was filed; and, in part, on those existing at that time, but not then known to the complainant; and also, to add an amendatory prayer for a receiver. No additional proceedings are prayed against the defendant Hale.

Notice of the application was served on Kinsman and Goddard, and the motion is strenuously opposed in their behalf. The objection on the part of Kinsman, amongst others made in common with Goddard, is, that the complainant has been guilty of laches, in not speeding the cause, a plea in bar to the bill, and an answer supporting the plea, having been filed February 9, 1846; and that it is unreasonable to allow him now to introduce new averments, with a new prayer, and thus open and enlarge the field of litigation, which ought to have been closed upon the pleadings before the court.

Goddard objects that the cause of action against Kinsman, set up in the bill, is wholly foreign to him: it is based on a contract between those parties, and seeks redress upon the spirit and equity of that contract, with which he was no way connected in terms, and in which he has no interest.