Unidentified photographer / artist 1843, March Law Reports of Patent Cases. Vice-Chancellor's Court, January 28, 1843. Before Sir. L. Shadwell. Beard v. Barber
Magazine page Google Books The Repertory of Patent Inventions: and Other Discoveries and Improvementsà", No.III Enlarged Series, March, 1843, p.185-187.
LAW REPORTS OF PATENT CASES.
Vice-Chancellor's Court, January 28, 1843.
Before Sir L. Shadwell.
BEARD V. BARBER.
Mr. Lowndes (with Mr. Torriuno) moved on behalf of Mr. Beard, the patentee of the Daguerreotype, for an injunction to restrain the defendant from continuing any longer to exercise the invention, under a license granted by the plaintiff, or from parting with the license. The plaintiff granted a license to the defendant, Alfred Barber, in September, 1841, permitting him to exercise his invention of the Daguerreotype in the town of Nottingham, for the full term remaining of his patent, in consideration of the sum of 1,200l. 450l. Was paid in cash, and the remainder by bills of exchange of different dates; and by the covenants of the deed, which appeared to be strictly drawn, Barber bound himself not to assign the license without the consent of Beard, and to pay the bills as they became due, and on any attempt to assign without consent, or breach of any of the other covenants, the license was to be forfeited. The first bill only, which was for 50l., having been paid, and there being no hope of obtaining the rest, which were all dishonoured, the plaintiff gave notice of forfeiture on the 8th of September, and now moved to restrain the defendant from any longer using the patent.
Mr. Bacon, who appeared for Barber, said the case was one of extreme hardship and breach of faith on the part of Mr. Beard. The defendant was captivated by the flattering prospects held out to him of making a rapid fortune, and by representations of the wealth that had been amassed by the plaintiff and other persons in different parts of the kingdom, and he was induced to embark all the property he possessed in the adventure. He was to receive a guinea at least for each likeness that he executed, which was to cost him only about 3s. 9d. Or 4s., and in three months he was to be a rich man. It was, moreover, sworn by a person named Gill, who was present at the negotiations which took place between Beard and Barber previous to and at the time of executing the license, that the distinct understanding was, that Barber had only 459l. In money to pay to Beard, and that the payment of the rest of the purchase-money must depend upon the profits he made by the use of the invention; and when Barber expressed some scruples at entering into the covenant, which he might be unable to perform, and the license become forfeited, Beard assured him the sole object was to protect himself from the defendant's creditors in the event of a bankruptcy, and that if the experiment did not prove so successful as they anticipated (of which there could he no chance), and he was not able to meet the bills as they became due, he should receive accommodation from time to time until his profits enabled him to pay, or that Beard would take them up himself. The Learned Counsel submitted that the statements of Gill were borne out by the correspondence which had passed between the parties and the other evidence which the transaction itself afforded. The only answer Mr. Beard was able to give to it was a general denial that he ever made any unfair or fraudulent representations to the defendant, or that he ever agreed that the defendant should not be pressed for payment of the bills if the profits arising from the use of the invention did not enable him to meet them.
The Vice-Chancellor said, there was nothing whatever to explain why the defendant suffered himself to execute the deed if the case were really as he represented. With respect to Mr. Gill's testimony, he could not help thinking that he had a most wonderful memory about conversations, and much more powerful than most other persons possessed. There must have been some mistake or misunderstanding about the matter, for it was not at all likely that everything was said simply in the way it was represented by the defendant and Gill, and a part of the transaction in which a Mr. Fiddes was concerned afforded evidence this was not to be believed. On the whole, his Honour could not help thinking that the same vivid fancy which induced the defendant to expect he should reap mountains of gold by delineating the faces of the people of Nottingham, might have led him to suppose his case to be somewhat different to what it really was. He was of opinion the injunction must be granted.
