It is said that the doctrine as

[*288

recital, or his pleas are no answer to the action. to eviction does not apply, because the license here is to enjoy the right but, in the first place, the right is not necessarily impeached, as has just been shewn; and secondly, the lease here is not properly of a right, but of the benefit of using the invention; the profit of weaving cloth by these looms. A use of the same privilege by others, in open defiance of the licensee, would have been an eviction, according to the judgment of Gibbs, C. J., before cited, (in Taylor v. Zamira, 6 Taunt. 527): there would have been a want of right and a non-enjoyment. According to the argument for the defendant, the licensee pays for the right, not the enjoyment; and if he has not the right, is not bound to pay. But that is contrary to the opinion of the Judges in Taylor v. Hare, 1 New Rep. 262. There the plaintiff, having hired the defendant's patent for a term, at 1007. a year, and used it for several years, discovered that another person had invented the same thing, and publicly used it in England, before the defendant obtained his patent. The plaintiff, therefore, brought an action for money had and received, to recover back the amount of his annual payments. But Heath, J., observed, "It might as well be said, that if a man lease land, and the lessee pay rent, and afterwards be evicted, he shall recover back the rent, though he has taken the fruits of the land." And Chambre, J., said, "Both parties have been mistaken; the defendant has thrown away money in obtaining a patent for his own invention; not so the plaintiff, for he has had the use of another person's invention for his money." [Lord DENMAN, C. J. The subject was considered there so far as the purposes of that case required.] The reasoning applies here. A monopoly in the use of the invention is what the licensee of a patent pays for. As to the dictum of Lord Coke, Co. Litt. 352, b., that a recital does not conclude, that can be only where the recital is of matter foreign to the contract; not where the matter recited is the foundation of the obligation, as it is here. Thus in Corrant's case, [*289 Dyer, 196, a. note (41), in debt, the condition of the obligation was, "if the defendant should suffer the plaintiff to enjoy his right in such a land;" defendant pleaded that plaintiff had no right, and on demurrer it was held good; but it is added that if it had been whereas the obligee had right, it would have been otherwise.

his

Lord DENMAN, C. J., after stating the substance of the declaration and pleas, proceeded as follows:-The plaintiff contends that these pleas are bad, because the defendant is estopped by his deed from pleading them. It is answered, as to the first plea, that it is not inconsistent with the deed; but we think it is so, and if not, that it is no defence. If by saying that the supposed invention is not new, it is only meant that it was discovered by the plaintiff fifty years ago, that is no reason that he should not now have taken out a patent for it. So as to the second plea, that the plaintiff was not the first or true inventor: that averment either denies that he invented the contrivance, or denies that he was the sole inventor. The answer is the same as that just given in the one case the defendant states what he is estopped from alleging, because it contradicts the recital of his own deed; in the other, he gives no answer to the declaration, The third plea puts a fact in issue in direct contradiction to the recital of the deed. The doctrine of estoppel has been guarded with great strictness; not because the party enforcing it necessarily wishes to exclude the truth, for it is rather to be supposed that that is true which the opposite party has already recited under his hand and seal; but because the estoppel may exclude [*290 the truth. However, it is right that the construction of that which is to create an estoppel should be very strict. As to the doctrine laid down in Co. Litt. 352 b, that a recital doth not conclude, because it is no direct affirmation, the authority of Lord Coke is a very great one; but still, if a party has by his deed recited a specific fact, though introduced by "whereas," it seems to me impossible to say that he shall not be bound by his own assertion so made

under seal. This point was much considered in Lainson, executor of Griffiths, 1. Tremere, 1 A. & E. 792, 3 N. & M. 603, (Trinity term, 1834.) There could have been no ease in which the Court would have been more strongly inclined to struggle against the doctrine of estoppel than that. The action was upon a bond. The condition, set out on oyer, recited that, by indenture of lease between the plaintiff's testator and the defendant, the testator demised premises to the defendant at the yearly rent of 1707.; and the condition was, payment to the testator of that sum. The defendant pleaded that the lease in the condition mentioned was a lease the reddendum of which was 1407. only, and that that sum had always been paid; to which the plaintiff replied that the yearly sum of 1707. had not been paid. On demurrer it was held, that the defendant was estopped from pleading a lease at 1407., which was in effect the same as saying that there was no lease at 1707. as mentioned in the bond. This was as strong a case as can be conceived; and the averment creating the estoppel was introduced by way of recital: yet this Court, upon the greatest consideration of the cases ancient and modern, decided for the estoppel. I *291] do *not think it necessary, in deciding the present case, to enter into a minute examination of the authorities; they were fully considered on that occasion; and I think the case of Hayne v. Maltby, 3 T. R. 438, has been sufficiently distinguished from that before us, in the course of the argument.

TAUNTON, J. The law of estoppel is not so unjust or absurd as it has been too much the custom to represent. The principle is, that where a man has entered into a solemn engagement by deed under his hand and seal as to certain facts, he shall not be permitted to deny any matter which he has so asserted. The question here is, whether there is a matter so asserted by the defendant under his hand and seal, that he shall not be permitted to deny it in pleading. It is said that the allegation in the deed is made by way of recital, but I do not see that a statement such as this is the less positive because it is introduced by a "whereas." Then the defendant has pleaded that the supposed invention, in the declaration and letters-patent mentioned, was not nor is a new invention. These words, "was not nor is a new intention," must be understood in the same sense as the words "had invented," in the recital of the deed set out in the declaration, and must refer to the time of granting the patent: and if the invention could not then be termed a new invention, it could not, I think, have been truly said in the deed that the plaintiff "had invented" the improvements, in the sense in which the deed uses the words. Then the plea directly negatives the deed, and comes within the rule that a party shall not deny what he has *292] asserted by his solemn instrument *under hand and seal. As to the case of Hayne v, Maltby, 3 T. R. 438, I acknowledge, with unfeigned respect, that it does not become me to criticise the opinions of Judges so great and eminent as those who sat here when that case was decided; but it is not necessary to examine into the grounds of the judgments there delivered, because I think Mr. Tomlinson has distinguished that case from the present. Here there is an express averment in the deed, that the plaintiff is the inventor of the improvements; there the articles of agreement averred nothing as to the originality of the invention, but merely stated that the plaintiffs were the assignees of the patent, which they might have been, though the assignor was not the original inventor. And besides, though I do not rely much upon that, the Judges there differed in the reasons which they assigned for their judgments. It is sufficient, however, to say, without derogating from the authority of those learned Judges, that that case is very distinguishable from the present. I am of opinion that the demurrers here are well grounded, and the plaintiff entitled to judgment.

PATTESON, J. The third plea distinctly raises the question of estoppel; the first and second not so directly. The declaration sets out a recital in the deed between these parties; and it is necessary to consider the meaning of the words there used. It is said that in a case of estoppel nothing is to be taken by way

of intendment. But before we come to the question of estoppel we must examine the construction of the deed. The words are, "that the plaintiff had invented certain improvements," and had obtained his Majesty's letters[*293 patent for the sole use of the said invention. This recital can only mean that he had invented a new machinery, for which he had obtained the patent. If it meant that he was not the first inventor, it would be absurd. That being so, the pleas are, first, that the invention is not new; secondly, that the plaintiff is not the first inventor. Then, if those assertions are used in the same sense as the words "had invented" in the deed, they contain a direct denial of the matter there recited; if not used in the same sense, they are no answer to the declaration. The only authority cited for the proposition that no estoppel can be recited is that from Co. Litt. 352 b. It is not denied, however, that there have been many cases in which matter of recital has been held to estop; but then it is said that the recital in those cases has been inseparably mixed with the operative parts of the deed. But, if that be a text, the case is so here. The deed recites that the plaintiff has invented improvements and obtained a patent for the invention, and then it proceeds to a demise of the very subject-matter for which the patent is so granted. I cannot separate these things, and I therefore think the recital here comes within the description which Mr. Wightman has given of the law laid down by the old cases. The passage in Lord Coke must be taken with some little qualification and Lainson v. Tremere, 1 A. & E. 792, 3 N. & M. 603, is a direct authority to shew that there may be an estoppel by matter of recital. In Hayne v. Maltby, 3 T. R. 438, the recital contained no assertion of right in the plaintiffs except as assignees; and the plea did not deny that. The case was not properly one of estoppel. How far *the principle of eviction [*294 was applicable, it is not now material to consider. In Oldham v. Langmead, 3 T. R. 439, there cited, where the action was brought by the assignee of the patentee against the patentee, Lord Kenyon would not allow the latter to shew that the invention was not a new one, against his own deed. As estoppels are mutual, that is a strong authority to shew that the assignee, if he had by deed admitted the invention to be new, would have been estopped from pleading the contrary. And the current of authorities, and particularly the late case of Lainson v. Tremere, 1 A. & E. 792, 3 N. & M. 603, shew that there may be an estoppel by recital in a deed. The plaintiff is entitled to judgment.

WILLIAMS, J. I am of the same opinion. A passage has been cited from Lord Coke, in which he says that an estoppel must be certain, and not to be taken by argument or inference. But to give the words of this recital the sense ascribed to them by the plaintiff, is no argument; it is only making use of the common understanding of a phrase in the English language. When it is said, as in this deed, that a party "had invented" an improvement, it means that he was the inventor of it so as to make that invention available under the law of patents. The words "had invented" must, then, without any argument, mean that, the contrary of which is averred in the first and second pleas. The question, therefore, upon these, is the same as upon the third plea, as to which there is no doubt. Then the only question is, whether a recital, not being a direct assertion, can estop the party who has made it: no decision has been cited to the contrary; and this court lately determined in *favour of such an es*295 toppel in Lainson v. Tremere, 1 A. & E. 792; 3 N. & M. 603, where the doctrine of estoppels was carefully and fully considered, and where the estoppel in question depended as much upon a recital as that in the present Judgment for the plaintiff. (a)

case.

(a) The following case was argued and decided in Hilary term, 1835.

BOWMAN against ROSTRON and another. Thurday, January 29, 1835.

Declaration stated the execution of a deed by plaintiff and defendant; the plea did not

*The KING against The Sheriff of DEVON. Friday, Nov. 21.

A rule nisi was obtained for an attachment against defendant for non payment of money pursuant to an award; and on argument in the Bail Court, the Judge there made the rule absolute. The sheriff levied for the amount claimed. A rule was then obtained, calling on the sheriff to shew cause, among other things, why he should not retain the sum levied till further order of the Court; and upon such rule being discussed in the fall Court, it was admitted that the object in applying for the rule was to obtain a revision of the judgment given in the Bail Court.

Held, that the matter, having been decided by a Judge in that Court, ought not now to be reheard; and that the proceedings since the attachment did not entitle the defendant to reopen it.

In a cause of Webber against Partridge, in a former term, a rule nisi was obtained for an attachment against the defendant Partridge for non performance of an award, by which he was directed to pay the plaintiff a sum of money. The objections to the award were heard before Patteson, J., in the Bail Court, and eventually the rule was made absolute. The defendant, however, obtained a summons to shew cause before Patteson, J., why the proceedings upon the attachment should not be stayed; and upon that occasion the learned judge was asked to review his former decision. He, however, refused to do so, or to interfere with the proceedings; and the sheriff of Devon levied under the attachment,

traverse the execution, but alleged new matter, upon which the replication took issue. The deed was put in at the trial, and its recital directly contradicted the new matter alleged in the plea. Held, nevertheless, that the defendant was not precluded from submitting such matter of defence to the jury, inasmuch as the plaintiff had not pleaded the recital of the deed by way of estoppel.

And, the judge at nisi prius having treated such deed as conclusive, and directed a verdict for the plaintiff, the Court granted a new trial without entering into the question whether the plea was or was not bad.

THIS was an action of covenant, by the plaintiff in the preceding case, on an indenture similar to that referred to, ante, p. 278. The declaration was the same as in Bowman v. Taylor, except as to the names of the defendants. The defendants pleaded, 1, non est factum; 2, 3, and 4, the same pleas as the 1st, 2d, and 3d in Bowman v. Taylor; 5, a further breach of the conditions of the letters-patent. The replication took issue on all these pleas. (There was also a second count, with pleadings substantially raising the same questions).

On the trial before Lord Denman, C. J., at the sittings at Guildhall after Hilary term, 1834, the plaintiff put in the counterpart of the indenture described in the declaration, which counterpart was executed by the defendants. The Lord Chief Justice held the recital in this deed to be conclusive on the issues joined upon the second and third pleas, 80 as to preclude the defendants from giving evidence in support of these pleas; and (the defendants then not insisting on the fourth and fifth issues) a verdict was taken generally for the plaintiff, leave being given to move for a new trial, on the ground that the inference to be drawn from the deed, as to the truth of the allegations in the pleas, ought to have been left to the jury, with such evidence as the defendants might have brought forward in support of their second and third pleas. F. Pollock obtained a rule accordingly in Easter term last.

Sir W. W. Follett, Solicitor-General, and Tomlinson, now shewed cause, and contended that the pleas themselves were clearly bad, according to the decision in Bowman v. Taylor, and by analogy to the case of landlord and tenant. They referred to Vooght v. Winch, 2 B. & Ald. 662; Hayne v. Maltby, 3 T. R. 438; Doe d. Bullen v. Mills, ante, p. 17; and Taylor v. Zamira, 6 Taunt. 524. And they urged that, if the pleas were bad, the Court *296] W would not send down the cause to a new trial, inasmuch as the plaintiff might have judgment non obstante veredicto, even if the issues on those pleas were found for the defendant.

Sir F. Pollock Attorney-General, and Wightman, in support of the rule, were stopped by the Court (Lord Denman, C. J., Littledale, Patteson, and Coleridge, Js.)

Lord DENMAN, C. J. We are all clearly of opinion that there must be a new trial; a specific issue in fact having been joined, and evidence offered upon it at the trial, which Rule absolute.

was not received.

Both parties, by consent, had leave to amend the pleadings without costs.

and was ruled to return the writ. A rule was obtained in this term by the defendant, calling on the sheriff to shew cause why he should not retain the sum of 1617. levied under the attachment, till further order of this court; and why he should not refund to the defendant the sum of 107. 28., [*297 levied at the same time for fees and poundage. Against this rule Jeremy shewed cause in the Bail Court before Littledale, J., who referred the matter to the full court. And now, as to that part of the rule which related to the 1617.,

Bere, on behalf of the defendant, stated that the sheriff had the money in his hands, and was ready to obey such order as this court should make respecting it; and he admitted that this part of the motion was made for the purpose of reviewing the decision of Patteson, J. on the motion for the attachment, and of having the money paid over to the defendant if the court should reverse that decision. [TAUNTON, J. The question has been disposed of. The single judge represents the full court. If such applications were permitted, the party who failed before the single judge would always come to this court for a rehear ing.] Here the matter is recalled before this court, by the sheriff retaining the money to await their order. [Lord DENMAN, C. J. The cause may be in court for other purposes, but not for this. We cannot rehear it.]

THE COURT, (a) as to this part of the application, discharged the rule.(6) The other part of the rule, which was obtained on the ground that the sheriff had claimed larger fees than he was entitled to, was referred to the master, as well as the costs of this rule.

*The KING against SHEPHERD. Friday, Nov. 21.

[*298

By the charters of the borough of Marlborough, the burgesses were exempt from suit of shires and hundreds, and all pleas and plaints except pleas of the crown, from duel, and from being impleaded out of the borough in pleas concerning tenements in the borough, and from all secular exactions: the borough had also fairs and markets, and a prison for custody of persons till delivered by law, and power to send to the county gaol prisoners apprehended for treason, murder, felony, or suspicion of felony: there was also a power to make by-laws for the government of the inhabitants, and to have courts leet and courts of piepoudre; there were borough justices, who were prohibited from determining felonies without special mandate from the crown; the mayor was coroner, escheator, and clerk of the market, and there was a non-intromittant clause as to other justices, escheators, coroners, or clerks of the market.

In practice, the county magistrates exercised no jurisdiction within the borough, their warrants being backed by the borough magistrates. There were borough quarter sessions, at which misdemeanors were tried, but not felonies. There was a borough gaol, supported by the borough, in which prisoners were sometimes placed previous to examination. Prisoners to be tried at the borough quarter sessions, or remaining in custody for any time, were confined in a county bridewell within the borough at the expense of the borough. Prisoners charged with felonies committed within the borough were tried at the county assizes, and previously confined in the said county bridewell, or, where the offences were heavy, in the county gaol without the borough, in which case the borongh paid the expense of conveying them to the county gaol; but the county paid the expense of conveying them from the county bridewell to the assizes, and maintained them in the county gaol without the borough. The borough paid the expenses of passing vagrants, and of inquests, the mayor acting as coroner. The borough repaired a bridge within the borough. The above borough expenses were defrayed by a borough rate, first levied in 1775. No county rate had been levied in it.

Held, that M. was a place with a separate jurisdiction, derived from charter, and one which, before stat. 55 G. 3, c. 51, was subject to rates in the nature of county rates, imposed by its own justices, and, therefore, by the proviso in sect. 1, was exempt from county

rates.

THIS was an indictment against one of the high constables of the borough of

(a) Lord Denman, C. J., Taunton, Patteson, and Williams, Js..

(b) See, as to decisions at chambers, Rex v. The Archbishop of York, 1 A. & E. 397.