the benefit of using, by being tenant of those works; and then he says to the landlord of those works, "Not only have I acquired the right to the use of this mark, but you have lost the right to the use of it." Mr. Wigram said, that the Plaintiffs have acquired a celebrity by their manufacture of tin plates, designated by this mark; and that persons have, for several years, been in the habit of purchasing the Plaintiffs' tin plates by this mark; but the real question is, whether the Plaintiffs have acquired a right to prevent other subsequent tenants of the works at Carmarthen from using a mark, which it is clear was originally derived from those works; for, although they were not called "M. C. works," yet the persons carrying on the manufacture of tin plates at them, have always used the mark "M. C." The question is one of considerable nicety, and has never arisen in any of the cases which have been cited, and, therefore, the Court should be very sure before it concludes the right by injunction, particularly without providing for the trial of the legal right. I think, therefore, that the proper order to be now made will be, to discharge the order for the injunction, giving the Plaintiffs liberty to bring an action, as they may be advised; it being understood that the Defendants are not to be prejudiced in the mean time. There will be liberty for both parties to apply, and the costs must be reserved. 1837. MOTLEY บ. DOWNMAN. 1837. July 5. The Earl of MILLTOWN v. STEWART. 1827, a bond to secure the payment of a sum of given to S. by then filed a bill in Ireland for In the year HE bill stated that, sometime in the month of June 1827, the Plaintiff's brother, Henry Leeson, now deceased, represented to the Plaintiff that he had lost large sums of money to Robert Raymond Stewart, at various games of chance, particularly betting on horses which had run at several of the race courses in England, and that Robert Raymond Stewart had pressed him for payment thereof; and he requested the Plaintiff to join him in a bond to Robert Raymond Stewart for the amount of the sum so lost; Henry Leeson at the same time representing to the Plaintiff, that the Plaintiff would never be called on for payment on account of the bond. an injunction, The bill went on to state that the Plaintiff, jointly with Henry Leeson, on or about the 10th of June 1827, executed his bond to R. R. Stewart, in the penal sum of 4800l., conditioned for the payment of the sum of 2400l., on a gambling the amount of the sum so lost by Leeson to R. R. Stewart, An injunction as the Plaintiff best recollects, with interest at 5 per cent. per annum that Leeson died on the 29th of May 1829; and that the Plaintiff never heard further of the taking the bill bond until the month of September 1831, when he was applied to for payment on behalf of R. R. Stewart, against S., and although the Plaintiff had believed, and was convinced the order was that the bond had long before been satisfied by served upon him two days Leeson. to restrain the action, on the ground that the bond was founded transaction. was granted, and subsequently a decree nisi for pro confesso was made before his death, which The happened in 1855. In 1837 S.'s personal representatives brought an action upon the bond against M. in England. M. then filed a bill for an injunction. S.'s representatives, in their answer, stated that they were entirely ignorant as to the natureof the consideration for the bond, and that they had found among S.'s papers certain memorandum books relating to bets upon horse races, which books they had destroyed as useless; but they denied that the books shewed the consideration for the bond. Upon this answer the Vice-Chancellor granted an injunction, which was continued upon appeal, without obliging the Plaintiff to bring the money into Court, The bill went on to state that the Plaintiff did not re 1837. MILLTOWN STEWART. ceive any pecuniary or other consideration for executing The Earl of the bond, nor did Leeson, as the Plaintiff believed, receive any legal, fair, or other consideration, saving as aforesaid, for the same; and on the contrary the Plaintiff expressly charged, that the only consideration given by Stewart for the bond was money won from Leeson by Stewart, by betting at horse races and other games as aforesaid; notwithstanding which, Stewart, in the latter end of the year 1831, or the beginning of the year 1832, caused an action to be brought against the Plaintiff, in the Court of King's Bench in Ireland, for the amount for which the bond was executed, and interest; and that, under these circumstances, the Plaintiff, in the month of January 1832, filed a bill against Stewart, in the Court of Chancery, in Ireland, praying that the bond might be brought into Court to be cancelled, or otherwise dealt with as the Court might think fit, and that Stewart might be restrained from proceeding in any manner to recover the amount thereof: that on the 3d of February 1832, Stewart appeared to that bill; and that on the 7th of the same month an injunction was obtained to restrain him from issuing execution till answer and further order; but he was to be at liberty to call for a plea and proceed to trial in the action: that Stewart neglected to answer the bill, whereupon process of contempt, to a sequestration, issued against him; and the sequestrators having returned nulla bona, the cause was set down to be heard on the sequestration and return, in order that it might be taken pro confesso: that on the 29th of June 1833, a decree was made by the Master of the Rolls in Ireland, by which it was ordered that the bill should be taken pro confesso, and that Stewart should bring the bond into Court; and that he should abstain from proceeding in any manner to recover the amount of the bond, and that the Plaintiff might make up and enroll a decree C 2 with 1837. The Earl of v. STEWART. with costs against Stewart, unless, on service on him of that decree, and a subpoena for that purpose, good cause should be shewn to the contrary, on some day in the then next Michaelmas term, to be mentioned in such subpoena; but that before the Defendant should be permitted to shew such cause, he was to purge his contempts, and pay to the Plaintiff the full costs out of pocket of obtaining that decree : That on the 17th of October 1833, Stewart was personally served with copies of that decree and subpœna; but that he died on the 19th of October 1833, without having shewn cause against the decree, and without having proceeded to trial in the action; and that he had by his will, dated the 28th of June 1833, appointed the present Defendants, Samuel Frederick Stewart and Catherine Laura Stewart, his executor and executrix, by whom his will was proved in England, in or about the month of November 1833; but that it was not proved in Ireland: That on the 28th of February 1837, the Defendants brought an action against the Plaintiff in the Court of Exchequer, in England, to recover the sum of 2400l. on the bond, with interest from the date of the bond. The bill charged that Stewart never paid or allowed any good or valuable consideration for the bond, and, therefore, that the Defendants ought to be restrained from proceeding in their action, or from taking any other proceedings at law against the Plaintiff, in respect of the bond; and that the Plaintiff ought to have the benefit of the decree made in the Irish suit. The bill also charged that the Defendants had in their possession or power divers betting books, and other books and papers, relating to the matters in the bill mentioned, and whereby the truth of such matters would appear. The 1837. The Earl of The bill prayed that the Plaintiff might be declared to be entitled, as against the Defendants, to the benefit of the decree in the Irish suit, and that the bond might MILLTOWN be delivered up to be cancelled, and that the Defendants might be restrained from proceeding at law upon it. The joint answer of the Defendants stated, that Stewart annexed to his will a list of his property, and of his demands against certain individuals; and that such list mentioned that he held the Plaintiff's bond for 2400/., which he had given to him some years since in conjunction with Leeson; adding that the Plaintiff made his brother's death an excuse for not paying the bond. The Defendants stated that they had taken possession of Stewart's papers, and, amongst them, of the bond in question, and two draft copies of letters written by Stewart to the Plaintiff, relative to the bond, and a draft copy or extract of some letter written by Stewart to his solicitor or some third person, relative to some bill filed against him (Stewart) with respect to the bond, and a document purporting to be a copy of a decree nisi made by the Master of the Rolls in Ireland, on the 29th of June 1833, in a cause therein stated to be depending between the Plaintiff and Stewart, together with a copy of a subpoena to shew cause against such decree, dated the 12th of October 1833; and that such document contained statements relative to a bill filed by the Plaintiff against Stewart, which appeared thereby to have been to the effect mentioned in the bill in this suit; but the Defendants, except as therein appeared, were wholly ignorant as to the truth or falsehood of all the statements contained in such document. The Defendant, Catherine L. Stewart, stated, in the answer, that, in or about the month of February 1833, she heard Stewart say to several persons that the bond debt due from the Plaintiff C 3 v. STEWART. |