L. JJ. 1869 has been made by the Master of the Rolls must be reversed. I think the official liquidator, who has succeeded in this matter, should have his costs here, and in the Court below, out of the estate; but Mr. Gibson will not have any costs, or be called upon to pay any, KNIGHT, & Co. either here or in the Court below. SIR G. M. GIFFARD, L.J.: In cases of this description there is no difficulty whatever about the law. In each instance the matter is a matter of fact, and in this case the real question is, whether there was or was not a contract between Mr. Gibson and the limited company that the limited company should pay Mr. Gibson this debt. Of course to a contract both persons must be parties, and both parties must assent. As regards the cases which have been cited, there is no doubt whatever that if you have an old firm, and either a new partner is taken into it, or a new firm constituted, and the assets are taken over by that new firm, and the customer knowing all those circumstances, afterwards goes on and deals with the new firm, you infer from slight circumstances an assent on his part to accept the new firm as his debtors. That is not a doctrine that I dispute, nor do I dispute anything said by the present Lord Chancellor in In re Commercial Bank Corporation of India and the East (1). No doubt all his Lordship intended to say was, that the facts there did not come up to what was requisite in order to constitute Mr. Jones a creditor of the new firm, that two things at least were necessary, knowledge of the arrangement between the old and new firms, and assent on the part of Mr. Jones. Now here it is admitted that there is nothing in the sense of novation proper. It could not, in fact, be argued that the right to go against Smith & Knight individually had been given up. Therefore we start with that. Then we have the company formed in April and May, and the transaction in question completed in the month of August. The transaction is an agreement for a loan not to be called in for five years, a loan to Smith & Knight. The agreement was that promissory notes should be taken from them in respect of that loan, and those promissory notes were taken from Smith & Knight. Besides that, a letter was written by Mr. Gibson to Mr. Smith, in which he says, “In (1) 16 W. R. 958. In re SMITH, Ex parte L. JJ. 1869 In re SMITH, KNIGHT, & Co. GIBSON. to reference to the notes for the advances made, I suppose they will be drawn jointly and severally in the names of Smith & Knight, not by the company, as our arrangement was with you as individuals, and we know nothing of the company in the transaction." There can be Ex parte nothing, I think, more explicit than that, and this being the origin of the transaction, the knowledge of the arrangement between Smith & Knight and the company does not appear to me to be material, unless you can make out that there was some intention vary the original agreement. Then what happens afterwards? The advances are made to Smith & Knight, and placed in the bank in which Gibson was a partner to the credit of Smith & Knight. One payment of interest is made, and that by the limited company. The application for the payment of that interest was made to the limited company. Nothing more than that happened up to the time of the winding-up, except the transfer of the balance, which I will mention presently. The Master of the Rolls says, that at the outset of the transaction it was not intended that the limited company should be liable. He says, further, that he did not consider that the mere payment of interest would render the limited company liable. He seems to have based his judgment upon the fact of the £195 12s. 7d. being transferred from the account of Smith & Knight with the bank in which Mr. Gibson was a partner, into the account of Smith, Knight & Co., Limited. But when you come to investigate the transaction, it amounts to nothing more than this:-Smith & Knight drew a cheque upon their banking account. That cheque is accompanied by a letter from the limited company, in which they ask that that sum should be transferred to the account of the limited company, and that the account of Smith & Knight should be closed. That was the whole of the transaction, and in argument it was admitted, very properly, that that could not alter the liability. There is, after every fact is known, a distinct arrangement in which the liability of the company is altogether repudiated. There is nothing but an application for interest, and interest paid by the limited company carrying on the business of Smith & Knight, carrying on that business in the very offices of Smith & Knight, and being, in point of fact, the very persons to whom Smith & Knight would refer anyone for the payment of interest. I cannot infer, nor do I think any jury could, from the mere payment of interest, infer either an offer on the part of the company to give further security to Mr. Gibson, and still less any agreement by Mr. Gibson to accept that further security. The whole matter comes to this, that as between Mr. Gibson and the limited company there was no contract, and there being no contract there can be no proof by him against the company. Solicitors: Messrs. Ashurst, Morris, & Co.; Messrs. Aldridge & Thorn. HOFFMANN v. POSTILL. Interrogatories by Defendant-Patent Suit-Exceptions-Practice. In answering interrogatories filed by a Defendant for the examination of the Plaintiff, the general rule applies that he who is bound to answer must answer fully. Interrogatories for the examination of a Plaintiff are on a different footing from those for the examination of a Defendant in this respect, that a Plaintiff is not entitled to discovery of the Defendant's case, but a Defendant may ask any questions tending to destroy the Plaintiff's claim. In determining whether a question is one of fact, and, therefore, to be answered, it makes no difference that it is asked with reference to a written document. A Defendant in a suit for infringement of a patent, in order to prove that there was no novelty in the Plaintiff's patent, interrogated the Plaintiff as to the inventions described in the specifications of previous patents, and asked him to shew in what respect they differed from his. The Plaintiff declined to answer these interrogatories on the ground that the questions were not questions of fact, and that they related to the Plaintiff's case; the Defendant excepted to the answer, and the exceptions were allowed. A Plaintiff in a patent suit was required by interrogatories to set out a correspondence between himself and a third party, and also to state the particulars of the infringement of his patent on which he relied. He refused to answer these questions on the ground that the Defendant might obtain an order in Chambers to inspect the correspondence; and that he had sufficiently set out the particulars of the infringement in his bill. Held, that these answers were sufficient. Questions respecting proceedings in a foreign Court relating to infringements of the Plaintiff's patent, held to be immaterial. THIS The order of James, V.C., varied. An exception bad in part is not necessarily to be overrule d. Higginson v. Blockley (1) disapproved of. was an appeal from an order of Vice-Chancellor James overruling certain exceptions to the answers of the Plaintiffs to interrogatories exhibited by the Defendant. L. JJ. 1869 June 11. (1) 1 Jur. (N.S.) 1104. L. JJ. 1869 HOFFMANN v. POSTILL. The bill was filed by Frederick Edward Hoffmann and others, the owners of a patent which was granted to Alfred Vincent Newton on the 22nd of December, 1859, for "An improved construction of kilns and ovens for burning bricks, tiles, limestone, and other substances." The Plaintiffs had also taken out a fresh patent on the 24th of June, 1864, for "Improvements in kilns or ovens for burning bricks, tiles, pottery-ware, limestone, cement, and other substances." The Defendant, Francis Postill, was a brick manufacturer at Scarborough, and had erected a brick kiln in the neighbourhood of that town, in which, as the Plaintiffs alleged, he had adopted some of the improvements patented by the Plaintiffs, thereby infringing their patent. The Plaintiffs accordingly filed the present bill against him, praying that he might be restrained from using the improvements patented by the Plaintiffs, and might account to them for all profits made by burning any substances in any kiln in which those improvements were used. The 25th and six following paragraphs of the bill contained a full description of the construction of the Defendant's kiln, pointing out the particulars in which it infringed the Plaintiffs' patent. The Defendant having answered the bill, filed a concise statement and interrogatories for the examination of the Plaintiffs. In the concise statement he alleged that his kiln was constructed upon the principle of a patent taken out by Mr. T. M. Gisborne, and was no infringement of the Plaintiffs' patent; that the alleged improvements patented by the Plaintiffs were not new; and that they were not distinctly explained in the specifications. The interrogatories filed were very voluminous, the object of those respecting which the principal argument arose being to obtain admissions by the Plaintiffs that their improvements were substantially identical with improvements which had been described in the specifications of previous patents taken out by other persons. In the 1st interrogatory they were asked whether in the year 1841 one Joseph Gibbs did not obtain letters patent for an invention described as "A new combination of materials for making bricks, tiles, pottery, and other useful articles, and a machine or machinery for making the same, and also a new mode or process L. JJ. 1869 w V. POSTILL. of burning the same, which machine or machinery and mode or process of burning are also applicable to the making and burning HOFFMANN of other descriptions of bricks, tiles, and pottery." The Plaintiffs were then interrogated as to the details of the improvements described in Gibbs' specification, with a view to shew that his process was substantially the same as theirs; and were required to point out the difference between his improvements and those which were comprised in the Plaintiffs' patent. In several subsequent interrogatories the Plaintiffs were asked similar questions respecting patents taken out by other persons previously to those under which the Plaintiffs claimed. Extracts from these interrogatories, shewing the form of the questions asked, are given in the judgment of the Lord Justice Selwyn. In the 11th interrogatory the Plaintiffs were questioned respecting proceedings taken by them in the Kingdom of Saxony against persons infringing their patent in that country, in which the Plaintiffs were alleged to have been unsuccessful. In the 12th interrogatory the Plaintiffs were required to set forth a correspondence between them and Mr. T. M. Gisborne, respecting the patent granted to A. V. Newton. In the 14th the Plaintiffs were required to set forth full and descriptive particulars of the alleged infringements of which they complained. The Plaintiffs put in an answer to these interrogatories. They admitted the granting of the patents to the persons mentioned in the interrogatories, but denied in each case that the improvements were substantially the same as those included in their own patents; and as to the rest of the inquiries in each case they objected to answer them in the following terms: "We are advised that the remainder of the discovery sought by this interrogatory relates exclusively to our case against the Defendant in this suit, or relates to matters of law, and that the Defendant is not entitled to any discovery from us in this our answer respecting the same, and we submit to the judgment of this Honourable Court that we are not bound further to answer this interrogatory." They objected to answer the 11th interrogatory on similar VOL. IV. 3 1 1 |