commission of per cent. over and above the commission PREC. XV. payable in respect thereof as herein before first provided (e). 12. The said E. F. shall at all times during the continuance Premises and hereof at his own expense well and sufficiently insure and keep goods to be insured by insured against fire the agency premises and all articles aforesaid agent. for the time being therein and shall whenever required by the said firm produce the receipts of the current premium or premiums paid by him in respect of such insurance (f). advertise 13. The said E. F. shall at his discretion and expense properly Agent to and sufficiently advertise the said articles at a rate not less than articles and £ - per calendar month for an average of any three con- expend a secutive calendar months. minimum thereby. 14. All commissions payable to any sub-agents employed in the amount said district by the said E. F. for the sale of the said articles shall Commissions be borne by and between the said parties equally who shall together to sub-agents. determine the amounts of such commissions respectively. ceived amounting to 15. The said E. F. shall so long as he shall not be indebted to Monthly the said firm be entitled each calendar month to draw from all drawings allowed to moneys received by him for the sale of articles as aforesaid or agent-but other moneys paid to him for the benefit of the said firm a sum balance of not exceeding £- in anticipation of the moneys (if any) moneys repayable to him on the half-yearly settlement of accounts to be effected as hereinafter provided on the half-yearly day then next £- -at ensuing subject to the liability on his part to refund any sums which on such settlement shall appear to have been overdrawn but of firm at subject to such drawings and any claims by the said E. F. thereout bank. for moneys due to him from the said firm all moneys so received by or paid to the said E. F. as aforesaid shall when amounting to altogether be forthwith paid to the credit of at &c. the sum of £ least to be paid to credit statements the said firm at the bank of Messrs. 16. The said E. F. shall keep at the agency premises all proper Accounts to books of account and shall make true and perfect entries therein at be kept and the earliest opportunities of all orders both taken and executed and monthly articles received by him from the said firm and also any such furnished. articles sold by him and the names and addresses of the purchasers thereof on credit or so far as known to the said E. F. and also of all other matters and things in any way relating to the agency and essential or convenient for any of the purposes hereof and shall on the -- day of each calendar month send to the said (e) E. F. thus becomes what is termed a del credere agent in respect of this guarantee. See Mackenzie v. Scott, 6 Bro. P. C. 291 (Tomlin's edition). A del credere agent is only liable to his principal as a surety for the purchasers. (Morris v. Cleasby, 4 Maule & Selwyn, 566; Hornby v. Lacy, 6 ibid. 166; Cumming v. Forester, 1 ibid. 494; Baker v. Langhorn, 6 Taunt. 519.) (f) A factor is bound to keep the goods with the same care that a prudent man would keep his own (Coggs v. Bernard, 2 Ld. Raym. 217; and 1 Smith's L. Cas.; and Vere v. Smith, 1 Vent. 121), but is not liable in case of robbery, fire, or other accidental damage happening without his default (Co. Litt. 89a; Anon. 2 Mod. 100; and Vere v. Smith, supra), and must insure the goods if he have effects in hand enough to cover the expenses of insurance. (See Smith's Mercantile Law, p. 113 (8th ed.), 1871, on the last and other points.) PREC. XV. firm a full clear and correct statement in writing of all orders and sales aforesaid and particulars thereof respectively for the then previous calendar month and shall at all times during the continuance and for any of the purposes hereof give the said firm or their agents all necessary information and if so required and at the expense of the said firm evidence by statutory declaration or otherwise as to the truth of any particulars appearing in the said books or any of them or any other matter or thing affecting the agency and suffer them or any of them to inspect and make copies or extracts from the said books or any of them as and when reasonably required by them or any of them. Accounts balanced half-yearly. Sums due to agent payable half-yearly. Agent to have lien on goods for moneys owing to him. No other agent within be employed. the district to Agent to detect infringements and give notice thereof to firm. No obligation on firm to maintain patent &c. Agreement to bind succes sors of firm if possible. of or day of 17. The accounts of the said agency shall be balanced by the said E. F. at the end of each half-year ending on the - day or within ten days thereafter. 18. All sums by way of commission or otherwise to which the said E. F. shall as shown by each half-yearly account aforesaid be entitled to receive from the said firm shall be paid to him within one calendar month from the time of delivery of such account. 19. The said E. F. shall subject to the rights (if any) of purchasers thereof have a lien on all articles aforesaid for the time being in his possession for any moneys then due to him hereunder (g). 20. The said firm shall not during the continuance of this agreement within the city of London or any place or district aforesaid employ any other person than the said E. F. as agent for any of the purposes for which the said E. F. shall by virtue of this agreement be entitled to be employed nor shall employ any other person as agent for any purposes connected with the sale of the said articles whose place of residence or business shall be within the said district or radius. 21. The said E. F. shall make every endeavour to detect any suspected infringement of any of the patent rights of the said firm with regard to the said invention or any other patent rights for the time being held by them in relation to the manufacture of and inform the said firm of any suspected or ascertained infringement thereof as soon as the same shall be suspected or ascertained by him. 22. The said firm shall be under no obligation to keep up or maintain the said letters patent or any extension thereof or any patent rights for the time relating to the said invention or the manufacture of the said articles or to take or defend any proceedings or action legal or otherwise as to any infringement thereof or otherwise. 23. The benefit of this agreement shall as to the said E. F. be made as far as possible binding not only on the said firm and the survivor of them but also on their and his assigns of the business of the said firm. IN WITNESS, &c. (h). (g) The articles will not be in the reputed ownership of the firm on the bankruptcy of the latter—that is, the lien of the agent will prevail. See Ex parte Taylor, Montagu, 240; and Greening v. Clark, 4 Barn. & Cress. 316. (h) For a clause as to service of notices, use Sp. Cl. 51, post, p. 242. CHAPTER ON ASSIGNMENTS (And MORTGAGES). A patent or share or for distinct part of invention generally assignable; so also for a district; a co-owner may assign his share; mode of assignment; should be by deed; otherwise only a contract arises PAGE .110-1 Contents of ordinary deed of assignment; Recitals-title or fact of .... .115-7 Comparison of advantages between assignments and exclusive licences for districts .. 117 Powers and obligations of co-owners of a patent inter se; Mathers v. Green; accounts as to royalties under licences; difficulties of co-owners working separately, where no special provisions; such provisions are personal covenants not generally binding the assigns; covenant as to grant of licences; covenant by assignee to perform obligations of assignor .118-21 Division of patent into equal moieties (separate working); Division ... ....121-7 128 109 A patent or share or for distinct part of invention generally assignable. So also for a district. A co-owner may assign his share. Mode of assignment should be by deed. Mortgage of a patent-recitals and absolute covenants for title and ... PAGE ...128-31 ....131-2 132-3 A PATENT is assignable if the terms of the grant permit assignment, but is apparently not so if they confer no such privilege («). Both the late and present forms of patents confer a power of assignment by implication from the use of the words "assigns" (b). The power to assign extends to any part or share of the patent (c), or to the entirety of the patent so far as it relates to a separate and distinct part of the invention (d). Further, the new act provides that a patent may be assigned for any place in or part of the United Kingdom and Isle of Man as effectually as if the patent were originally granted to extend to that place or part only (e). Again, one co-owner of a patent, subject to any agreement between him and the other owners, can assign his share in the patent (ƒ). No particular form of words seems needed for an assignment (g). A covenant to assign a patent upon the happening of an event may, when the event happens, operate as an assignment without (a) See Hindmarch, 234. (b) See Form I., ante, p. 48, as to present form. (c) Walton v. Lavater, 8 C. B. (N. S.) 162. The assignee, whether of the entirety or of a part or share, takes the legal interest, and is not to be considered merely as a licensee (per Erle, J.). (d) Dunnicliff v. Mallet, 7 C. B. (N. S.) 209. (e) Sect. 36. As to the effect of such assignment and the distinction and comparative advantages between an assignment for a district and an exclusive licence for the same, see post, pp. 115-118. (f) Lindley on Partnership, 4th edition, pp. 68, 69, citing Dunnicliff v. Mallet (ubi supra); Walton v. Lavater, supra; and Mathers v. Green, L. R. 1 Ch. 29. See also Hancock v. Bewley, Johns. 601. (g) Hindmarch, 235, citing Shep. Touch. 83, 86. The latter authority gives general rules for the construction of deeds of grant. any further assurance (h). An assignment however must be by deed, as the privilege is of such a nature that it cannot be granted without a deed (i); and the rule of law is that things which can only be granted or created by deed can only be assigned by deed (j). But where an instrument not under seal purports to be an assign- Otherwise only a conment of a patent, it may, it is presumed, be treated merely as an tract arises. agreement to assign, and be enforceable accordingly (k). In the analogous case of an instrument not under seal, purporting to be a lease of land for a longer term than required by statute for leases not under seal, the lease would be treated as an agreement only to grant the intended lease (1). The contents of an ordinary deed of assignment of a patent are Contents of now to be briefly noticed. ordinary deed of assignment. Recitals. Title or fact or claim The first recital (if any) in an ordinary deed of assignment is commonly as to the origin of the invention. A recital that the assignor or person through whom he claims the patent was the of invention true and first inventor will estop the assignor, and also (if he thereto. execute the deed), the assignee from afterwards disputing the validity of the grant (m). The mere fact however of the assignment causes such an estoppel to the assignor (n). As, in an (h) Cartwright v. Amatt, 2 Bos. & Pull. 43, referred to at p. 91, ante. An exclusive licence not providing for any resumption of the patent in any one or more events may thus amount to an assignment, so as to enable the licensee to sue for infringements in his own name. See pp. 200, 201, post, as to actions by a licensee. (i) Co. Lit. 9b, 172a. (j) 3 Co. Rep. 63a, Lincoln College Case. (k) See as to the specific performance of a contract to assign a patent, p. 42, ante. (1) Parker v. Taswell, 2 De G. & Jo. 559; Bond v. Rosling, 1 Best & Smith, 371; Tidey v. Mollett, 33 L. J. (C. P.) 235. See Davidson, Prec. Conv. Vol. V. Part I. (Chapter on "Agreements for Leases"). (m) As to estoppel by recitals generally, see ante, p. 41. In Bowman v. Taylor, 4 Nev. & Man. 264, where a licence contained a recital that the licensor had invented the machines and obtained the patent and enrolled the specification, it was held that the licensee who had executed was estopped. See also Doe d. Shelton v. Shelton, 3 Adolp. & Ell. 265, as to an estoppel not arising against an assignee who did not execute the deed. The estoppel must be pleaded to avail either party (Bowman v. Rostron, 2 Adolp. & Ell. 295). In Stroughill v. Bucks, 14 Q. B. 787, it was held that a recital in a deed, intended to be the statement of one party only, is confined as to estoppel to that party only. See also Wiles v. Woodward, 5 Ex. 557, to same effect. (n) Oldham v. Langmead, cited in Webs. 291; Walton v. Lavater, 8 C. B. |