plural. The defendant was to pay upon the authority being obtained, not upon his having notice of it. [WILLIAMS, J.-You cannot treat it as an original assignment of the fund by Adams. If you could, your argument would be very much fortified. COCKBURN, C. J.—The defendant in effect says, "As to the first transaction, I acted upon the *65] authority. You make a second advance, and give me no *notice of your having done so : and I, in ignorance of that state of things, purchase Adams's interest."] Having entered into this engagement, it was incumbent on the defendant, before he did anything to prevent him from carrying out the contract, to inquire whether or not further moneys had been advanced. Beswick v. Swindells, 3 Ad. & E. 868 (E. C. L. R. vol. 30), 5 N. & M. 378, is clearly distinguishable. The engagement to pay the 300l. or the 120l. was conditional upon the trade being carried at the wife's death. On the other hand, Ford v. Tiley and Lovelace v. Franklyn are distinct authorities to show, that, assuming this to be in the nature of a continuing guarantee, there was an implied contract on the part of the defendant not to do anything to prevent himself from performing it.

COCKBURN, C. J.-(addressing Holl.)-How do you propose that we should deal with the declaration? If you do not mean to stand upon the fact of the defendant's having incapacitated himself from performing his contract, the declaration is in so uncertain a shape that the defendant ought not to be called upon to answer it.

Holl asked time to consider whether or not he would apply for leave to amend; but, on a subsequent day (January 23d), he intimated that he would stand by his declaration. Cur. adv. vult.

WILLIAMS, J., now delivered the judgment of the court.

In this case, which was argued before the Lord Chief Justice, my Brother Cresswell, and myself, the court is of opinion that the defendant is entitled to judgment.

The declaration is, in substance, that the defendant, as executor of Mrs. Jenkins, was liable to pay over to one T. Adams certain rents received and to be received *by the defendant under the will of *66] Jenkins to the use of T. Adams, and that, in consideration that the plaintiff would lend money to Adams, he, the defendant, promised that, on Adams giving authority to the plaintiff to receive it, he would pay to her the money advanced to Adams, out of the first moneys received on his account; that the plaintiff lent Adams 581. 88. ; that Adams gave the plaintiff an authority to receive it from the defendant, who had due notice; that the defendant afterwards received 207. on account of Adams, and paid it over to the plaintiff, but, before he received any more, bought Adams's interest, and so disabled himself from performing his contract, and afterwards received the rents on his own account, and never paid the plaintiff the residue of the 587. 88.

The promise to pay to the plaintiff the money advanced by her to

Adams was, therefore, subject to two conditions,-first, that the defendant should receive money on Adams's account,-secondly, that Adams should give an authority for the defendant to pay it to her.

Then, the plea states, that, before the defendant purchased, he had no notice or knowledge that the plaintiff had advanced more than 207.; and that Adams had not then given the plaintiff an authority to receive more than that sum.

The plaintiff's counsel contended that the defendant was liable, because he had disabled himself from fulfilling his contract. But that seems to be founded on a fallacy. This contract was not, to repay all that should at any time be advanced; but, all that the defendant should receive and be authorized to pay over: and that he fulfilled. As he had not notice of any further advance, he cannot be said to have purchased in fraud of his contract. He had fulfilled the only contract that had then attached; and Adams, by giving a further authority after he had parted with his interest, acted in fraud of *his contract to sell. [*67 The defendant's promise did not attach until the authority was given; and Adams, by selling, deprived himself of the power to give such authority. If the plaintiff was defrauded, it was by Adams, and not by the defendant.

We are, therefore, of opinion that the plea is a sufficient answer to the declaration, and that our judgment must be for the defendant. Judgment for the defendant.

SMITH v. NEALE. Feb. 20.

A written proposal, containing the terms of a proposed contract, signed by the defendant, and assented to by the plaintiff by word of mouth, is a sufficient agreement within the 4th section of the statute of frauds.

An agreement whereby all that is to be done by the plaintiff constituting one entire consideration for the defendant's promise, is capable of being performed within a year, and no part of what the plaintiff is to do constituting such consideration is intended to be postponed until after the expiration of the year, is not within the 4th section of the statute of frauds, notwithstanding the performance on the part of the defendant is or may be extended beyond that period. In an action for the breach of an agreement to make the necessary periodical payments for stamp-duty to keep alive a patent which had been assigned to the defendant:--Held, that "non concessit," in the absence of any fraud, or of any warranty that the alleged invention was new or was a manufacture within the statute of James, puts in issue merely the fact of Her Majesty having granted the patent, and not its validity.

THIS was an action for an alleged breach of contract.

The declaration stated that the plaintiff was the first and true inventor of a certain new manufacture, that is to say, certain "improvements in the manufacture of toys, models, and other like articles of ornament or utility;" and thereupon, theretofore, to wit, on the 5th of March, 1853, Her Majesty, Queen Victoria, by letters patent under the great seal, and dated the day and year last aforesaid, granted the plaintiff the sole

privilege to make, use, exercise, and vend the said invention within. the united kingdom of Great Britain and Ireland, the Channel Islands, and the Isle of Man, for the term of *fourteen years from the said *68] 5th day of March, 1853, subject, amongst the other usual conditions, to the condition that the same should be void, and the powers and privileges thereby granted should cease and determine, at the expiration of three years and seven years respectively from the date thereof, unless there should be paid before the expiration of the said three years and seven years respectively the stamp-duties in the schedule to the statute in such case made annexed expressed to be payable before the expiration of the third year and the seventh year respectively, and such letters patent, or a duplicate thereof, should be stamped with proper stamps showing the payment of such respective stamp-duties, and should when stamped be produced, before the expiration of such three years and seven years respectively, at the office of the commissioners of patents for inventions: That afterwards, and before the expiration of three years from the date of the said letters patent, to wit, on the 21st of June, 1855 (the stamp-duty payable before the expiration of the said three years not having been paid), it was agreed by and between the plaintiff and the defendant, that the said letters patent should be conveyed to the defendant and any friend of the plaintiff, in trust for a society (in which the defendant was interested) called "The Ladies' Guild," subject to the following conditions,—that the plaintiff should receive 5 per cent. on the selling price of all articles sold, in which her patent was employed, payable quarterly; that the defendant should provide for the next payment on the said patent, that is to say, for the said stamp-duty payable before the expiration of the said three years from the date of the said patent; that, if the payments made to the plaintiff were not equal to 50l. in the first year, and 751. in every subsequent year, the plaintiff should have the right, on giving one month's notice, and repaying any payments made to keep up the patent, to reclaim it, unless the *deficiency in the year was made *69] up within the month; and that, in the event of the Guild not being carried on, the patent should revert to the plaintiff, subject to the repayment of moneys paid to keep it up: That afterwards, and before the time for preparing the said conveyance had elapsed, the plaintiff and defendant agreed that the said conveyance should be made to the defendant and Henry Dirks upon the said trusts, and that such conveyance should be prepared by the defendant: That all conditions necessary, matters, and things on the plaintiff's part to entitle her to sue the defendant in respect of the breaches thereinafter mentioned, were performed and happened; yet, by the default of the defendant, no such conveyance was prepared or executed, nor were the said letters patent conveyed to the defendant and the said Henry Dirks or any other person according to the said agreement, or otherwise; and the defendant

neglected and refused to prepare any such conveyance, and exonerated and prevented the plaintiff from executing the same, although a reasonable time in that behalf had elapsed before the suit; nor did the defendant provide for the next payment on the said patent, but neglected and refused to do so, although the time for providing for and making such payment had elapsed before the suit; whereby the powers and privileges granted by the said letters patent ceased and determined at the expiration of three years from the date thereof, and the plaintiff was deprived of divers profits which she might and otherwise would have made, had the said letters patent continued in force, she having up to the expiration of the said three years fulfilled all other conditions in the said letters patent up to that time to be fulfilled: And the plaintiff claimed

6001.

The defendant pleaded,-first, that he did not agree as in the declaration was mentioned.

Secondly, that after the making of the said *first-mentioned [*70 agreement, and before any breach thereof, in the year 1855, the said agreement in the declaration first mentioned was rescinded and abandoned by the mutual consent of the plaintiff and the defendant, and the plaintiff then absolved and exonerated the defendant from his said promises, and the performance of the same.

Thirdly, as to so much of the declaration as related to the first-mentioned agreement, and the breaches thereof, that the agreement and promise in the declaration first mentioned was made subject to the condition mutually agreed upon between the said parties, that the said agreement should determine, and that the said letters patent should revert to the plaintiff, and that the plaintiff should forthwith, on demand, pay to the defendant all moneys which might have been at any time. paid by the defendant for the purpose of keeping up the patent, in the event of the said society called "The Ladies' Guild" not being carried on; that, before the said next payment on the said letters patent had become due and payable, that is to say, before the expiration of three years from the date of the said letters patent, and before any breach of the first-mentioned agreement by the defendant, it had become impossible to carry on the said society called "The Ladies' Guild," and the said society called "The Ladies Guild" had ceased to be carried on within the meaning of the said agreement,—of all which the plaintiff before the expiration of the said period of three years from the date of the said letters patent had notice.

Fourthly, as to so much of the declaration as related to the said firstmentioned agreement, and the breaches thereof, that the plaintiff was not the first and true inventor of the said manufacture as in the said declaration is mentioned; by reason whereof the said letters patent in the declaration mentioned were at the time of the making of the said alleged agreement null and void.

*Fifthly, as to so much of the declaration as related to the *71] said first-mentioned agreement, and the breaches thereof, that Her said Majesty did not by her said supposed letters patent in the declaration mentioned, grant to the plaintiff the sole privilege to make, use, exercise, and vend the said invention within the United Kingdom of Great Britain and Ireland, the Channel Islands, and the Isle of Man, as in the declaration was alleged.

Sixthly, as to so much of the declaration as related to the first-mentioned agreement, and the breaches thereof, that the plaintiff had not fulfilled all the conditions in the said letters patent until the expiration thereof as in the declaration mentioned, in this, that the said letters patent were made by Her said Majesty subject to a condition that the plaintiff by an instrument in writing under her hand and seal should particularly describe and ascertain the nature of the said invention and in what manner the same was to be performed, and cause the same to be filed in the great seal patent office within six calendar months next and immediately after the date of the said letters patent; and that the plaintiff did not within six calendar months next and immediately after the date of the said letters patent in the declaration mentioned cause any instrument in writing under the hand and seal of the plaintiff particularly describing and ascertaining the nature of the said invention and in what manner the same was to be performed, to be filed in the said great seal patent office; whereby and by reason whereof the said letters patent, and all liberties and advantages whatsoever thereby granted, had utterly ceased, determined, and become void before the making of the said agreement in the declaration first-mentioned.

The plaintiff joined issue upon each of these pleas.

The cause was tried before Willes, J., at the sittings in London after last Trinity Term. The facts which appeared in evidence were as follows:-The defendant, a *gentleman of fortune, who from bene*72] volent motives took an active part in the management of a charitable institution called "The Ladies' Guild," the object of which was the employment of females in suitable works, entered into a negotiation with the plaintiff, who had in 1853 obtained a patent for "improvements in the manufacture of toys, models, and other like articles of ornament or utility," for the use of her patent in promoting the objects of the institution; and, on the 21st of June, 1855, in answer to a proposal on her part to sell him the patent, he wrote to the plaintiff, as follows:

"I regret that the pecuniary position in which I find myself must prevent my accepting the proposals contained in your letter, though probably not more than you might fairly expect to obtain as the purchase of your patent. The fact is, that I have spent so large a sum,upwards of 50007.,—in the effort (hitherto unsuccessful) to make the Guild a self-supporting institution, and have lost so much money in