HILARY TERM, 29 VICT. a contributory, which is very different from the question as Montague Chambers (with whom was Cohen) appeared for the defendants in the two first actions, and for the plaintiff in the third, but was not called upon to argue. Per CURIAM (a).-We are all of opinion that the defendants in the two first actions are entitled to judgment. In the other action our judgment is for the plaintiff. Judgment accordingly. (a) Pollock, C. B., Martin, B., Channell, B., and Pigott, B. 1866. RAMSGATE v. MONTEFIORE. JOURDAIN v. PALMER. Jan. 11. for the breach THE HE declaration in this case set out an agreement in In an action writing, dated the 10th April, 1862, between the plaintiff of an agreeof the one part and the defendant of the other part, whereby, after reciting that the plaintiff was possessed of an invention for deodorising oleaginous substances, it was agreed that the plaintiff should, at the defendant's costs, which the defendant thereby agreed to pay, take necessary steps to obtain provisional protection ment to pay the stamp duty on letwhereby they ters patent, became void, and the plain tiff lost the the Court all and profits thereof, refused to allow the defendant to administer interrogatories to the plaintiff for the purpose of shewing that the letters patent were of no value. 1865. JOURDAIN V. PALMER. letters patent for the said invention, and the necessary specification thereof; such letters patent to be assigned by the plaintiff to the defendant: the plaintiff to use his utmost endeavours to promote the adoption of the said invention, and make the same productive by using it in his own manufactory, and granting licenses for the use thereof to other persons upon such terms as to royalty as should be agreed upon between the plaintiff and the defendant: the defendant to receive all monies due and payable in respect of the said invention, which should be applied first in repayment to the defendant of all costs, &c.: that if, within two calendar months from the date of the provisional protection the defendant should give written notice to the plaintiff of his intention not to proceed with the said letters patent, then all his right and interest in the said invention should cease, and it should thenceforth be the sole property of the plaintiff: provided that if the defendant should not give such notice, he should be bound to pay the cost of proceeding with and obtaining the letters patent.-Averments: that, after the making of the agreement, to wit, on the 10th April, 1862, provisional protection was obtained for the said invention, and the defendant did not, within two calendar months from that date, give written notice to the plaintiff of his intention not to proceed with the said letters patent; and that, after the expiration of the said two calendar months, and after the obtaining of the said letters patent, and before the commencement of this suit, it became and was necessary, for the purpose of proceeding with the said letters patent in the terms of the said agreement, and preventing the avoidance thereof under the provisions of the 16 & 17 Vict. c. 5, s. 2, to pay 501. for stamp duty in respect of the said letters patent before the expiration of the 10th June, 1865, and that all conditions, &c., had been performed. : Breach that the defendant did not pay the stamp duty, whereby the letters patent became void, and the plaintiff lost divers profits which he would have derived from working the patent. Plea. Payment into Court of 50%. The defendant took out a summons at Chambers for leave with his plea to deliver to the plaintiff the following interrogatories : 1. Have you ever made, or caused to be made, any and what quantity of material under the patent the subject of this action? If yea, state the several quantities, and the date of such manufacture, and the places at which it was manufactured. 2. What quantity of such material is now in your power or possession? If you have disposed of any part of it, state in detail what quantity you have disposed of, and to whom, stating his present address, and when and for what consideration, and how much consideration has been received. by you, and when. 3. Have you in your power or possession any and what diaries, documents, or books containing memoranda and entries of the quantity manufactured by you, the dates or other particulars of its disposal, or the prices received for the same, as in the last interrogatory particularly mentioned? If yea, give the name and description of each of such diaries, memoranda, or books. 4. Did you receive any, and what, samples of material manufactured by the defendant under the said patent, and when? What has become of the same? Are any, and, if yea, how many, at present in your possession or power? 5. Did you constantly exert yourself to the utmost of your ability from the 10th April, 1862, till the commencement of this action, to obtain orders for material manufactured by the said process? 1866. JOURDAIN v. PALMER. 6. Have you been able to obtain a single order? And if yea, state the name and address of the person or persons from whom you obtained such order, and the date and amount of it. The affidavit in support of the application stated that the defendant had reason to believe that the plaintiff had attempted to procure persons to take licenses of the said patent, but without success. That the defendant had, from time to time, caused to be given to the plaintiff samples of the material produced by the said patent, but the plaintiff had not procured a single customer for it, nor accounted to the defendant for any monies received by him in respect of it, as he was bound to do under the said. agreement, if he had received any; nor did the defendant know what had become of such samples. That defendant was informed and believed that the plaintiff had, from time to time, manufactured, or caused to be manufactured, cocoanut oil according to the said patent, or by some other process, but defendant was ignorant in what quantities he had done so, or when, and what amount, if any, he had realised by means of it: that the defendant would derive material benefit in this cause from the discovery which he seeks by the interrogatories, and that he had a good defence upon the merits. The summons was heard before Channell, B., who refused to make an order; whereupon Murphy now moved for a rule calling on the plaintiff to shew cause why the defendant should not be at liberty to deliver to him the above interrogatories.—The defendant would be entitled in a Court of equity to the information now sought, and, if so, he is entitled at law under the 51st section of the Common Law Procedure Act, 1854. The defendant admits a breach of the agreement, and seeks, by these interrogatories, to ascertain what sum he ought to pay into Court. HILARY TERM, 29 VICT. The affidavit shews that the invention is of little or no value; and that samples have been delivered to the plaintiff which have not been accounted for. If they have been disposed of by the plaintiff, the defendant is entitled to an account of the proceeds; if they have not, that fact would be evidence that the invention is worthless. Wright v. Goodlake (a) is an authority that a defendant may interrogate a plaintiff for the purpose of ascertaining the damage he has sustained, so as to enable the defendant to pay the real amount into Court. [Martin, B.-That was an action for the infringement of the plaintiff's copyright in a pamphlet, and the discovery was limited to the number of copies sold on a certain day and two months before and two months after that day. An application was once made to me at Chambers to allow a railway Company to interrogate a person injured on their railway as to his age, profession, income, his movements after the accident, the doctors whom he consulted, the nurse who attended him, and every circumstance connected with his own case, but I refused to sanction it.] In that case the defendants would not have been entitled to a discovery in equity. [Channell, B.-Assuming that, under this agreement, the defendant would be entitled to a discovery in equity, it does not follow that he is entitled to it in this action. Wright v. Goodlake was an action of tort; this is an action for a breach of contract. Suppose, in such an action, special damage was alleged, would the defendant be entitled to interrogate the plaintiff respecting it ?] POLLOCK, C. B.-I am of opinion that my brother Channell was right in refusing the order. I doubt whether the decision in Wright v. Goodlake can be followed on every occasion where it may appear applicable. That was an (a) 3 H. & C. 540. VOL. IV.-H. & C. N EXCH. 1866. JOURDAIN v. PALMER. |