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![handle is hein.slavery/ssactsengr0746 and id is 1 raw text is: LUSHINGTON V. SEWELL
myself wholly incompetent to pronounce whether this is or is not an original pattern.
The only remaining question is, whether that point will be best determined by art
action or an issue? My original impression was in favour of the former; but in this
case it becomes an important consideration, that, from the language of the statute,
the question cannot be properly tried in one action. An action cannot be maintained
against Coates, Leaf, and Glover. To try it properly there must have been at least
two actions: one against Coates the printer, and another against Leaf and Glover the
vendors, with knowledge. But here the question of originality may be tried in the
shape of an issue, giving the party also the opportunity if he [169] chooses, and
thinks it worth his while, of trying the question of piratical imitation in a second
issue. In the meantime I shall direct the injunction to be dissolved, and the parties
to keep an account of the profits of their sales. For it may turn out, on the
investigation at law, that the pattern is not original; and the property might be
destroyed by continuing the injunction till the result of the trial. As to the other
cases, I think I ought to dispose of them in the same way: for though the evidence
in one of them is certainly stronger against the claim of originality, yet as there was
no opportunity to cross-examine the witnesses, I cannot satisfactorily decide, without
sending the question to law.
(1) The Acts relating to authors are 8 Ann., c. 19, and 54 G. 3, c. 156; those
relating to engravers are 8 G. 2, c. 13, 7 G. 3, c. 38, and 17 G. 3, c. 57.
(2) Crossley v. Beverley. Crossley v. Derby Gas Light Company. Dec. 4, 1829.
The Plaintiff was the assignee of a patent granted in 1815, for the manufacture of
gas-meters of a peculiar construction, and had recently succeeded in establishing his
right by recovering a verdict at law. The patent was to expire in the course of a
few days.
The Solicitor-General and Mr. Cooper moved ex parle, on the bill, which was
verified by affidavits proving the infringement, that the Defendants might be
restrained from selling or disposing of any of the gas-meters in question which had
been piratically made during the continuance of the patent. The Defendant, it was
suggested, had a large stock of the pirated articles on hand ready to be thrown into
the market as soon as the monopoly was at an end ; which they had no right to do
to the detriment of the Plaintiff, who had the exclusive privilege of manufacturing
them during the fourteen years.
THE LORD CHANCELLOR [Lyndhurst] granted the injunction.
LUSHINGTON V. SEWELL. Jan. 29, [1830].
A testator by will gives his moiety of an estate, called H., to his sister and her children,
and subsequently, by a codicil which purports to give them the whole of that estate
if he shall possess it at his death, charges it with a sum of money to legatees: at
the date of the will and codicil he was owner of only one moiety of H., but before
his death he acquired the other: Although the devise fails as to the after-purchase
moiety, the charge is good for the whole sum, and equity will make no appor-
tionment.
M. G. Lewis, by his will, bearing date the 5th of June 1812, gave and devised all
his real and personal estate to certain trustees upon trust, as to one moiety, for his
sister Lady Lushington for her separate use for life, and after her decease for all the
children of Lady Lushington who should be then living, as tenants in common, and
their heirs, executors, administrators, and assigns; and as to the other moiety, he
gave and devised the same, upon similar trusts, for his sister, Mrs. Sheddon, and her
children.
The testator afterwards executed a codicil without date, which, after making some
observations with respect [170] to his will and the nature and amount of his property,
and the best mode of discharging his debts and legacies, contained this passage,- It
is my intention that my estates which I have bequeathed to my sisters should not be
C. xIx.-3
I RUSS. & M. 169.](ViewImageLocal?handle=hein.slavery/ssactsengr0746&div=1&collection=&method=preview&ext=.png&size=3)