two years afterwards, when the action is brought. And it is to be observed that section 10 is in truth a proviso on section 9, which abolished attornments, as to which it is said in Woodfall's Landlord and Tenant, 8th edit. 208, "Payment of rent by a tenant to his landlord after the title of the latter had expired, and after the tenant had received notice of an adverse claim, does not amount to an acknowledgement of title in the landlord or to a virtual attornment, unless at the time of such payment the tenant heard the precise nature of the adverse claim or how the landlord's title had expired."

WILLES, J.-There can be no doubt that, assuming the letter of the 1st of November, 1866, was a notice within 4 Anne, c. 16, it only gave the plaintiff a right to recover from the time of the notice, and did not entitle him to recover prepaid rent which accrued due before that time. For though payment before the day is only a loan and not payment of rent, yet as the rent becomes due the law applies it and it becomes payment of rent. This fully accords with what is laid down in De Nicols v. Saunders (1), and also with the following passage in Viner's Abr., Payment, I: "In debt upon a bond the condition was for payment of a sum at a certain day and place. The defendant pleaded payment at the day and place according to the condition, and upon issue taken it was found that he paid it before the day and at another place, and the plaintiff accepted it. And the defendant had judgment by the opinion of the whole Court, for payment before the day is payment at the day." We are all of opinion that such a payment is within the statute of Anne, and is not disturbed by a subsequent

notice, and therefore the verdict at all events must be reduced to 621. 10s. But it is further said that there is no notice of a grant of the reversion within the statute; this is a new point and requires consideration.

KEATING, J., BRETT, J., and COLLIER, J., concurred.

Cur, adv. vult.

The judgment of the Court was (on Feb. 9) delivered by

BRETT, J.-This case was argued last Michaelmas Term before my brothers Willes, Keating, Collier and myself, and I now read the judgment of my brothers Willes and Keating, and myself (2).

In this case the plaintiff sought to recover from the defendant the sum of 1377. 108., as for rent for two and a-half years due at Christmas, 1867. At the trial a verdict was by consent taken for the plaintiff for 1377. 10s., with leave to the defendant to move to set such verdict aside and enter a verdict for the defendant, or to reduce the amount recovered by such a sum as the Court should direct. The Court was to have power to draw inferences of fact. A rule nisi, according to the terms of the leave reserved, having been obtained, the case was argued before us. The facts as stated to the Court were, that on the 7th of July, 1864, a lease of the premises in question was granted by one Lamb to the defendant for five years at a rent at first arranged to be 551., but

finally agreed to be 50l. a year. Shortly after the lease, the defendant paid to Lamb, as for rent in advance, 1501. and 701. In September, 1865, Lamb conveyed the reversion in the premises by deed by way of mortgage to the plaintiff for an advance. In August, 1866, Lamb gave a further mortgage to the plaintiff for a further advance. In May, 1866, one Banchini claimed to recover possession of the premises from the defendant, and by one Carpenter, his attorney, brought an According to an affidavit made in the preaction of ejectment against the defendant. sent cause by the defendant, Banchini made known to him the defendant and to his attorney, in May, 1866, that he claimed as mortgagee by virtue of a mortgage attorney to the action. It was not pressed, from Lamb. The defendant appeared by and on the 1st of November, 1866, the plaintiff wrote to the defendant as follows: "Sir, Mr. Carpenter has written to say his clients are no longer entitled to receive your rent; I therefore request that you will have the kindness to pay the same here by Monday next." Signed, "T. R. Cook." The defendant thereupon

(2) Collier, J., had in the meantime ceased to be a judge of this Court and become a judge of the Privy Council.

consulted his attorney, Mr. Walker, who on the 2nd of November, 1866, wrote to the plaintiff asking for information. None was given, and no further step was taken until the present action was brought. The defendant and his attorney made affidavits for the purpose of obtaining orders for interrogatories and inspection of documents. In the affidavit for the latter purpose, the defendant vouches a mortgage deed given by Lamb to Ban chini on the 27th of September, 1858. It was argued on behalf of the defendant, that no notice had been given to him of any conveyance of the reversion to the plaintiff, and consequently that he was protected by reason of his payments to Lamb without such notice, and by statute 4 Anne, c. 16. s. 10, against any claim by the plaintiff; that the want of notice distinguished this case from that of De Nicols v. Saunders (1); that at all events the verdict must be reduced to so much as would represent the rent payable after the 1st of November, 1866; that the pay. ment in advance was good as against the plaintiff until notice was given. The Court acceded to the last contention, and took time to consider as to the former. It seems clear to us that if there was a sufficient notice given in November, 1866, the prepayment is not a payment of rent as against the plaintiff's claim for rent from and after such notice; and if there was not a sufficient notice, the plaintiff is not in this case entitled to recover at all; in such case the prepayment is good and covers the whole claim. The question therefore is whether there was or was not a sufficient notice given to the defendant by or on behalf of the plaintiff, that he, the plaintiff, was on the 1st of November, 1866, claiming the rent as grantee, by being mortgagee of the reversion. The question is not whether the letter gives such notice in terms, but whether from the letter and the circumstances, the Court ought to infer that the letter brought such knowledge to the mind of the defendant, or his attorney, or both. Now the defendant and his attorney knew that Banchini had claimed the premises as mortgagee from Lamb, and consequently they knew that Lamb was raising money by mortgaging the reversion; that

the claim made on behalf of the plaintiff, was not to dispossess the defendant, but only to be paid by him the rent; that such a claim could hardly be founded upon any other alleged right than one resulting from a grant of the reversion. Considering these propositions we are of opinion that there was evidence from which a jury ought properly to draw the inference that the letter, coupled with the circumstances known to the defendant and his attorney, did bring to the mind of one or both of them, that the plaintiff was claiming the rent as grantee by way of mortgage of the reversion, as in truth he was. We are therefore of opinion that there was sufficient notice, and that the plaintiff is entitled to recover so much of the rent claimed by him as would be due, if unpaid, from the 1st of November, 1866. The verdict must be reduced by all which exceeds that amount.

Rule absolute to reduce the verdict to 621. 108.

Negligence Patent Agent-Liability for Ignorance of Law-Delay in getting Patent sealed.

A patent agent is expected to know the law relating to the practice of getting patents.

Where, therefore, such agent who was employed to procure a patent, being not aware of the decision of the Lord Chancellor in Re Bates and Redgate (which makes it necessary, notwithstanding provisional specification has been filed, to take care that the patent is sealed before another patent for the same invention is obtained by a later applicant), delayed four months between filing the provisional specification and ap plying to have the patent sealed, whereby a subsequent applicant for a patent for the same invention was able to get his patent sealed first, and so prevent such ayent from

procuring a patent for his employer,-Held, evidence of negligence, for which such patent agent might be liable in an action at the suit of his employer.

Action against a patent agent for negligence, in not using due care and skill in endeavouring to procure a patent for the plaintiffs.

a new

The first count of the declaration stated that in consideration that the plaintiffs would employ the defendant as and being a patent agent as their agent to procure in the name of Absalom Evans certain letters patent for an invention of " automaton vase or depôt for holding coals or other substances," for reward to the defendant, the defendant promised the plaintiffs that he would use due and proper care and skill in and about endea vouring to procure the said letters patent, and the plaintiffs relying on the said promise of the defendant did employ the defendant as aforesaid, and on the terms aforesaid. Averment, that all times had elapsed, &c. Breach, that the defendant did not use due and proper care and skill in and about endeavouring to procure the said letters patent, but so carelessly and negligently conducted himself in endeavouring to procure the same, that he failed to procure them, whereby, &c.

The other counts are immaterial for the present purpose. The defendant by his pleas, inter alia, denied the promise and traversed the breach as above alleged.

The facts as they appeared at the trial before LUSH, J., at the last Stafford summer assizes, were these: In April, 1870, the plaintiffs instructed the defendant, a patent agent, to take out a patent for the invention mentioned in the declaration. The defendant took the preliminary steps for that purpose and filed the provisional specification on the 30th of April, 1870. Nothing further was done until the 9th of August, 1870, when the defendant wrote to the plaintiffs as follows: "I respectfully beg to remind you that the time is now drawing near when it will be requisite to give notice to proceed with the application for letters patent for your ' automaton coal vase,' therefore I will feel obliged if you will favour me with a cheque for, say 101., on account of duties,

6

&c. I find from the official journal, that a Mr. Charles Hayward Perman, of Birmingham, manufacturer, has applied for letters patent for improvements in coal vases,' but what the improvements consist in we cannot ascertain until the end of the year, unless we can get the information by his own exposure of the invention before that date." The 101. was accordingly sent to the defendant shortly after this letter, and the defendant proceeded with the further steps necessary for obtaining the patent, when an objection to the grant of it was lodged by the said Mr. Charles H. Perman who, although he had filed a provisional specification of a similar invention to the plaintiffs on the 15th of June, 1870, after the plaintiffs' provisional specification was filed, had succceded in getting his patent sealed first, the same having been sealed on the 10th of September, 1870.

The defendant forwarded a notice of this objection to the plaintiffs on the 19th of September, 1870, accompanied by a letter of that date, in which he said, "Perman, I believe, cannot prevent your getting your patent sealed, and it will be dated prior to his, and furthermore, I do not believe he can prove his allegations. The objections will be heard before the Attorney General, who will appoint the day of hearing, after we have ordered the report and seals, which we can do at any time now." The matter came before the Attorney General early in October, 1870, when he refused his fiat to the sealing of the plaintiffs' patent on the authority of the decision in Re Bates and Redgate (1), that in the case of two applicants for a patent for the same invention, if the second applicant gets his patent sealed first, the other applicant is prevented from obtaining a grant of the patent.

The negligence relied on at the trial was, that the defendant had not known this decision and was not aware, therefore, of the necessity for expedition in getting the patent completed.

On these facts the learned judge directed a verdict for the plaintiffs, which was entered for 301., leave being reserved to the

(1) 38 Law J. Rep. (N.s.) Chanc. 501; s. c. Law Rep. 4 Chanc. App. 577.

defendant to move to enter a nonsuit or verdict for him, if the Court should be of opinion that there was no evidence of negligence.

A rule nisi to that effect was accordingly obtained, against which

Anstie shewed cause.-The defendant delayed applying for a warrant to affix the great seal to the plaintiffs' patent from 30th of April, when he was in a condition to have applied, until near the month of October. In the meantime a patent for the same invention was granted to another person, whose provisional specification was filed subsequently to that of the plaintiffs, and according to the decision of Hatherley, L.C., in Re Bates and Redgate (1), the patent so granted, if obtained without fraud, would be a bar to a grant of a patent for the same invention to the earlier applicant for provisional protection. The result, therefore, of the defendant's delay has been to deprive the plaintiffs of the power of getting letters patent for their invention. It is admitted that, according to the course of practice of patentees' agents before that decision in Re Bates and Redgate (1), the delay would not have been unusual, but that decision was, in May, 1869, a year before the filing of the plaintiffs' provisional specification, and it was a decision with which every patent agent ought to have been acquainted, who was reasonably skilled in the practice of that branch of the law which he specially undertakes.

[BYLES, J.-The defendant either did or did not know of that decision. If he did not, you say that would be evidence of negligence, and if he did know of it, then he did not exercise due diligence.]

Yes, he is on the horns of a dilemma. Whatever might have been the practice before, patent agents were bound, after that decision, not to rest for so long a time on the security only of the provisional protection.

Lawrence, in support of the rule.-The plaintiffs had got, by the filing of the provisional specification, a protection which would last for six months, and it was therefore not the duty of the agent to proceed hastily. His duty was to proceed according to the usual course, and if he obtained the Attorney General's fiat for

sealing the letters patent at the end of the six months, he fulfilled all that he was bound to do. Indeed it might be more advantageous, for it might be found that the patent was not a valuable one, and so by the delay there would be a saving of money. The decision in Re Bates and Redgate (1) was only that the Attorney General should not be required to antedate the patent to a day prior to the filing of the specification by the rival inventor. At all events, that is what it was in effect generally considered to be, and if that were so, then the defendant was justified in going on as he did, for if the patent had been granted to the plaintiffs, it would have been valid, as the plaintiffs were in fact the first inventors. Ignorance of the law is not always negligence, and there was no evidence that the practice among patent agents has been altered since the decision in Re Bates and Redgate (1), and it is submitted therefore that the course adopted by the defendant was not such as to fix him in this action with liability for negligence.

BYLES, J.-This is a rule to set aside the verdict for the plaintiffs, and to enter it or a nonsuit for the defendant, on the ground that there was no evidence of neg ligence. The learned judge acted at the trial as judge and jury, and in so acting, he directed a verdict to be entered for the

plaintiffs. We ought not to interpose and set that verdict aside, unless we clearly saw that the learned judge was wrong. Now I do not, on the facts of this case, see that he was wrong, or that I should not have come to the same con clusion which he did. There were two facts tending to shew negligence; there was the long interval which the defendant allowed to take place between the filing of the provisional specification and the applying for the sealing of the patent, and there was ignorance of the decision of the Lord Chancellor in Re Bates and Redgate (1), which had occurred a year before, and which, if he had known (as he ought to have done), he would not have delayed as he did. Under these circumstances, I think it impossible to say that there was no evidence of negligence.

BRETT, J.-The defendant undertook,

for reward, to act in the position of a skilled agent for the plaintiffs in obtaining a patent for them, and under these circumstances it seems to me that he was bound to bring ordinary care and skill to the undertaking. It is suggested that he did rot do so, because he delayed applying for the sealing of the plaintiffs' patent from 30th of April to the month of October. Now if there had not been the decision of the Lord Chancellor in Re Bates and Redgate (1), I should not have thought that that delay afforded any evidence of want of care or skill, as before that decision the delay was not greater than would ordinarily be used by patent agents in such a case. But in May, 1869, the case of In Re Bates and Redgate (1) was decided.

I

agree with Mr. Lawrence that a patent agent is not to be expected to know all the patent law accurately, but I think he ought to know the law as to the practice of obtaining patents, which is what he has undertaken for reward to conduct. This decision of the Lord Chancellor was an important one affecting that practice, and which having occurred so long as a year previously, he was bound, I think, to have known, and to have regulated his practice according to that decision. If so, it was open to the jury in a case like this to say that the defendant had not shewn that competent knowledge of the practice in obtaining patents which he ought to have possessed. There was, therefore, some evidence of negligence, and this rule must be discharged.

GROVE, J.-I am of the same opinion. With respect to the delay of four months in proceeding after the provisional speci

fication had been filed to get the patent sealed, if the case had stood on that delay alone, and the practice before the decision of the Lord Chancellor in Re Bates and Redgate (1), I should have hesitated in saying that it was an unreasonable delay, so as to be in the nature of negligence. So as to the defendant taking payments after he knew of the application for Perman's patent, I should also hesitate in saying that that was evidence of negli gence, as he could not then have known that the two patents were conflicting. But here there was something further, there was the decision of the Lord Chancellor in Re Bates and Redgate (1). It is fairly part of the practice of patent agents to watch (as I know they do with care) the decisions of the Lord Chancellor on matters affecting patent practice. It is obvious that this was an important decision, which must necessarily lead to a change in the practice, and make it very necessary to get a patent sealed before another could be sealed for the same invention. It was the duty of patent agents to be acquainted with a decision so strongly bearing on the practice of getting patents, and I cannot but say that ignorance of it was some evidence of negli gence. Rule discharged.

Attorneys-Needham & Co., for plaintiffs; Wright & Venn, for defendant.