Court Of King's Bench, Westminster, Jan. 17. (Sittinasian4ao.f1 question wactner attorniies,attending a9 witnesses in courts ofjustcc under a subpmoa ad stiesfswan- dum, are entidled to be paid tortheir loss ot time. The action, which was tried before Lord Tenterden at G3uildhall, at the sittings after last Hilary Term, had been brought by Mr. Collins, an attorney, of Spltal-square, to re- cover six guineas for his loss oftime in attending nix davs in the Court of Common Pleas as a witness under a subpcetin, in a cause in which the -present defendant was a party. Be. fore the pre9ent action was brought, a written notice was served on the defendant demanding payment of the six guineas. After the writ was served, the defendant applied to the Court to stay the proceedings on payment of the six gusineas, and the Court ordered them to be stayed on payment of that sum with the costs. After these facts had been proved, Alr. Kelly, for the derendant, submitted that the action was not maintainable, and that an attorney could not recover cormpensation for his loss of time in attending as a witness upon a subpena. This proposition, it war admitted, was contrary to the general opinion which had prevsaled in the proirseton, and been acted on for many years and which was confirmed by the practice in the Alaster's office, where, in taxing costs as between party and party, attornies and me. dical men have been invariably allowed a guinea a day for their loss of time in attending as witnesses. Lord Tenterden said he was bimself taken somewhat by surprise at the learned sounsel's proposition, but after hearing some cases cited in support ot it, directed the plaintiff to be nonsuited, with leave, however, to' him to move, Mr. Campbell having accordingly in Easter Term obtained a rule to show cause why the nonsuit should not be set aside, and a verdict entered for the plaintiff for six guineas, Alr. KELLY now showed cause. No man, he contended, could recover compensation for doing that which the law cast upon him as a duty. An attorney, like every other person, was bound to attend as a witness in the courts of justiceupon the King's writ of aubpmna, and bestovw whatev,er time might be necessary. This he was by law bound to do, and there were no authorities, nor even any dicsr of learned judges, to show that he was to be paid for such attendance. The de- cided cases, as far as they went, tended rather to the opposite conclusion. Befote the statute of 5 Elizabeth, c. 9, all persons were bound to give their attendance as witnesses when sub' ptenaed, and that not only without any compensation for their loss of time, but without any previous tender of their expenses being made,boweverdistanttheirresidencemightbe;butbyth2t statute they were now entitled to a reasonable sum for their expenses. It had been held in one case where the witness had attended without any previous tender of his expenses, that an action was maintainable for those expenses; but there was no case which decided that an attorney or any otbe erpe son could maintain an action for his loss Or time. It had been urged in this case, at the trial, that the defendant had ad. mitted his liability by applying for the rule to stay proceedings on the payment of the six guineas; but admitting that to be] evidence of an implied promise, it made no difference; fbr it was a promise without consideration, and therefore bad in law. lUr. CABIPBELL, on the other side, maintained that the usage which had so long prevaied in the profession was abundant evidence of an implied promise. It had been the universal.usage, recognized and acted upon in the Master's. office, to allow an attorney a guinea a-day for bis loss of time in attending as a witness ;. and one of the learned Judges now present (Air. Justice Littledale) had recognized the right in a case in wvhich Plr. Collins, the present plaiz.ti. had been subptenaed as a witness, and in which, having objected to give evidence unless he was paid for bis loss of time, the learned Judge ruled that he was not compellable to do so. The learned counsel, after urging various arguments in support of his proposition, went on to contend, that an attomey attend. ing as a witness. underta aspbpmn, had a right to compensa- ton for his loss of timne, and that that right remained un- impaired by the statute, which was passed for the par. pose of giving an additional remedy to the party issuing the subpnona, by imposing a penalty for non-attendance- but it was a conditional ,eaaty-namely, to attach only where a tender bad been made of a sum of money for the reasonable expenses of the witne3s. The statute was never intended to abridge any right which the jparty subpmenaed possessed; and if, there!bre, the right to compensation for loss of time existed betore the passin of that statute,-and he (the learned counsel) nsisted tbatit. did -it stiU existed, and the plaintiff was entitled t4 recover. With respect to the suggestion on the other side, that ,there w-as no consideration for the promise it had been held that that was a good con- slderation which was either beneficial to the promisor or de. trimental to the promibee, and surely it must be cousidered as detrimental to the plAintiff'Mr. Collins, in bhi professional business, to have had to attend for 6 days as a witness in the Court of Common Pleas. If lie had been examined, and the defendant Alr. Godefroy had succeede i on his evidence, that would hleve been a benefit to Mlr. Godefrov, the promiser. Lord T'NzTEnDEw 2said, as the. question was important, the Court vould consider of it, and take an Opportunity of. consulting with the Judges of the other coutts upon it. MIURRAY V. ItEATH AND OTHtERs. This case came on for argument upon a rule obtained in Easter term last, celling upon the plaintiff to show cause why the verdict obtained by hnim against the defendant Heath should not be entered on the first count only of the deelara- tiorn; and- wh the verdict as against the otber defendants, Dolnman and wrbould, should not be set aside, and a rerdict entered for those derendants. The action, It will be recollected, was breuhlit by MIr. Mur- ray, the bookseller, of Albemarle.street, against *ir. Charles Heath, the engraver, and Messrs. Dolrna and Corbould, his; assilgnee; and the question was, whether engravers had a! right to take and retain lor their Own use, impressions fromj the phtes which they were employed to engrave, without the consent of their employers. Mr. Mfurray, in the year MU22, had emnployed the defendant Heath to engrave some water-, colour drawings made by Mr. WVestall illustritive of the. poems of Lord Byronj and Mi. Crabbe. hr. Heath ikeduted the enFravings, and retained for his own use, without the con. sent ot Mr. 971urray, about seven proof impressions of each. He subsequently becanie bankrupt, having previously depo. sited some of the proof impressions in question with Air. White, the printseller, on his making him an advance of about 5001. In Slay, 1826, the whole of lllr.. Ileath's collec. tion of prints, &c. were placed by the assignees In the hands of SIr. Southgate,of Fleet-street,fsreale bv auction. Mr.blur- ray having got notice that tbe catalogue included many p7rot Iempresions ofthe engravings which Air. tIeath had executed for birn, and for whic be had paid,came forward and claimed ,hc prints as belonging to hinm; and, having obtained an in- jutiCion from the; 0qsrt of Chancery to restrain the parties fwromi 'roeeding wit Pthe- ale, the prints in question were withdrawn, froan the catalogue, The present action was brought aller irtkati proaeedligs had taken place in the Court of Chancery, alid ap acdon tried in. the Court of Common Pleas, the object being, inosk action, to-try the question of fight above ah!ided to. Atithe trial before lord Teriterden, at GuUldhall, in March last,'the jurv decided against the right claimed, and a verdict was accordingly entered for the plaintiff 'ith nominal damages. The application on the part of' Messrs. Dolinan and Corbould, the assignees, to set the verdict aside and enter a verdict fbr them, and that on the part of the defendant Heath to enter a verdict on the first count of the declaration only, was made on the ground that the statute of the 17th of Geo. IIL., c. .S7, upon which the de- clatation was principally framed, was not applicable to a case of this deacription. 'rhat statute, after reddng the twoG or- kncr acts of tbe 8th Geo. II. and 7th Geo. III., enacts, " That if any engraver, etcher, printieller, or ether person, shall, within the time limited by the aforesaid acts, or either of them. engrave, etch, or work, or cause or procure to be en- graved, etched, or worked in me2fotinto or chiaro oscuro, or otherwise, or in any other manner copy in the whole or in part, by varying, adding to, or diminishing from, the main de- sign,or shall print, reprint,orimport forsale, orcause orprocure to be printed, reprinted,and importedfor sale, or shall publis,h sell,or otherwise dispose of, or cause or procure to be published, sold, or otherwise diaposed of, any co-y or coples of any bis- torical print or prints, er-any print or prints of any portrait, conversation, landscape, or architecture, map chart, or plan, or any other print or pnnts whatsoever, whicht hath, or have been, or shall be engrayed,' etched, drawn, or designed in any part of Great Britain, without the express consent of the pro- prietor or proprietors thereof hrst bad and obtained in writng, signed by him, her, or them respectively, with his, her, or their ownhane or hands, in the presence of and attested by two or more credible witnesses, then every such proprietor or proprietors ghaU and may, by and In a special action upon the case to be brought against the person or persons so offend- ing, recover such damages as a jury on the trial of such action, or on the-executien of a vrit of inquiry thereon, shall give or assess, together with double costs of suit." The decla- ration contained, besides the speciel.counts upon the statute, counts for pirating<, and a count in trover. Sir JAMES SQAILETT, Mr. CAMSPBELL and Mr. HJILL, now showed cause against the rule. The object of this applf- cation was, they satd to remove from ,Mlr. Heath thecharge of pirating, and enable his assignees to escape from the pay- ment of double costs under the statute. There was certainly no evidence to sustain those counts of the declaration vhich alleged that the assfgnees had "-taken" the impressions, but there was evidence to show that they had " published" them within the meaning of the statute of the 17th of Geo. III. That statute, the learned counsel submitted, was intended to extqnd the provisions of the fotmer acts of the 8th Geo. 1I. and. 7th Geo. U., and to provide for a case of this descrip- tion. The object ofthe statute, they contended, was to make it a substantive offence to publishr a print without the consent in writing df the original proprletor, and of coumse it applied a fo tiori, to a case where the prints had been orlginaUy unlawfully taken, as is the present in. stance; for atthough the impressions retained by Mlr. Heath were all taken from a plate which he had engraved for Mr. Ajurray, the proprietor, and upon his employment, yet inas- much as'be took them without Mr. Murray's consent he was unlawfully in possesalon of them, and had no right to publish or keep them. The act of advertising them for sale was a publicationwithin the meaning of the- act, and that having been done without the consent of Mr. turray, the penalty at- tached. The ATTortxrY.GEWERAL, Air. GuxEY, and Mir. WHIsTE, appeared in supppert of the rule, but The COURT, without calling upon them to make any ob- servations, expressed their opinion that it ought to be made. absolute. Their Lordships were of opinion that in con- sitruing the act of the 17th Geo. III., c. 67, they were bound to consideritin connexion with the two priorstatutes of the 8th Geo. IL and 7th Geo. 1L!., and in looking at those statutes they were of oplinon that the mischief which -the le- gialatureintended to provide against wa* the making of new eniravings from engravings already in existence, or selling engravings taken from the originals, the design not being that of the original engraver. Eacih of those acts gave the party damnified a remedy.irsar a'llon for damages, and the3d-act -that of the I7t8Get.- Ill., c.<7 -enabled the party, in additior, to tlat remedy, to-recover Aouble costs. The ob Ject of th;ae acts, taken togetber, was to give a remedy for. a piracy properly so cahed. The taking of prints from a pla e engraved biy order of tbe proprietor was net a piracy. If takeu by the engraver without tnh consent of his employer, it was a breach of trust-a fraud, but not a piracy within tbe meaning of these acts of Parliament. In allusion so the alleged custom among engravers to take a number of proof impressions for their own use, Lord Tenterden observed, that he believ- ed the practice had been originally for the engIaver to take only one or two impressions for his private use, and for the purpose of showing them among his fiends asa specimen oj his art, but that practice was afterteards extended, a much larger number of impressions was taken; *and they at length. got into the market and fetched considerable prices as being the engavefs proofa before the letters, and, of course, mere aluable than tbhe other impressions. ThisT became very in. jurlous to the orlginal proprietor of tbe prints: and certainly it was not to be said, -when be complained of the practice, that the petsons whom he had employed to execute the en- gra-rings had a right to retain any number of the impres signs, however small, for thteIr owrn use. The jury in this ca.e nad found against the custom, and of cource tbe supposed riKbt was negatived by their verdict. The count in trover could net, however, be sustained, any more than the piracy, and tberefbre the verdict must be entered for tbe assignees and for the plaintiff, as against the crefendant Heath, on the first count only.-Rule absolute BERNASCO1NI AND OTHESS V. FAREBROTSIEIt2 ESt., AND OTHERS. ;Mfr. CAMIPBELL reminded their lordships of this case, in which, on Friday last, he moved on the part ofthe lateSheriff of AMiddlesex for a rule nisi for a new trjal. The Court had taken time to consider of one of his grounds .of motion viz thatevidence ofactsdone and declarations made by Alr. Cbam: bers, juie., after the issuing of the commission, was not pro. perly admissible. As the Court had allowed the defendant Wilton te take a rule 7tisi for a new trial, on an applicttion made by him, the learned counsel hope4 that their Lordships would permit hirn (Mr. Campbell) to take a similar rule on the ground he bad mentioned. Lord TENTERnDEN assented. , WIL3ON V. SXSYTIe. Mlr. GURNEY moved for a rule to show cause, why the noDn suit in thiscase should not be set aside and a new trial had. The action,: wbich was tried at the sittings in Iliddlesex after last term, befoTe Lord Tenterdtn, bad been brought to recozer the price of a chaldron of coals supplied to she defendant's wife,. who;,>was living apart from ber nusband, Mr. Henry Willitia (a:michael Smyth. Mrs. Ssnyth having left her husband'3ihouse voluntarily, evidence Ivas given at the trial, on the part ef the plaintifft, to show that she had been compelled to separate herself from her husband on account of bis ill-treatment of her while under bis roof. The defendant, after admitting the fact of his ability to pay debts contracted by his wife, went into evidence to show hat proceedings had been instituted against him on the part of his vwife in the Ecclesiastical Court, and that by a decree of that court he had been directed to pay her S0!. a-year as alimony, and tbat she was receiving that sum from him at the timne the debt In question was contracted. As soon as that fact came out, Lord Tenterden stopped the case, observing, that as the defendant was paying alimeny to his wife, he did not tbink he was liable to any-debts contracted by her at that time; and the plaintiff was therefore, under his Lordship's direction, nonsuited. The learned counsel now moved to set aside the nonsuit, and for a new trial,on the authority of the case of " Hopkinson v, Fletcher," in 4 Campbell, which he ssid was sn action brought against the defendant, a merchant, to recover 53t. for linen-drapery sup. plied to his wife, who was living separate from him. In that case, the learned counsel said, the wife had sued her bus. band for a divorce, and during the pendency of the proceed. ings, the Court had ordered the husband to pay 4001. a year alimony. The suit was ultimately dismissed, and the hus- band then voluntarily paid his wife an allowance of 300!. a year. Lor= Ellenborough had said in that case that the ques. tion whether the party was liable to pay the demand while | the wife was in thereccipt of an annual altowance of 3:00., de- pended upon whether that allowance was or was not sufficient, withreferer,ce to his rank asd station inlife. If it were sufficient, the husband would be discharged from his liabllity, notrvith_ standing he was rot legaUy bound to make the aUlowance of 300!.; but, in orderto destroythat creditwhich a wife separated from her husband carried with her into the werld, it was in. cumbent on him to prove that the alowance which he made to her waS adegaite, On the principle of that decision the learned counsel submittc- that the 'plaintiffin this case was entitled to have theopinion of a jury -upon the question as to the sufficiency or insufficiency dE the allowance of 30?. per an. num made by the defendant to his wife. That sum, it ap. peared at the triul, had been directed to be paid by a decree of the Consistory Court, and it was paid for some time under the authority of that- decree,- but the suit was afterwards carried up by appeal to the Arcbes Court, a,sd the decree then ceased to be binding upon-the- defendant. No decree was obtained from the Arches Court, and the p-ayment, therefore, which the defendant continued to make was a- mere voluntary pay. ment. If lie (the learned counsel) bad had an opportunity, he should, he believed, bave been able to show that the allow.. ance was insufficient, and that the defendant was in fact of ability to pay a much larger sum. At all events, the plaintiff, he submitted ought to have an opportunity of taking the opi- nion of the jury flpon the oueation of sufficiency. None of the cases on this- subject hid decided that a mere voluntary allowance or payment to a wife was of itself sufficient to discharge the husband from his liability to his wife's debts ; and as this was a new point, and one of very considerable im- portance, the learned counsel trusted that the Court would think it right to allow It to undergo further consideration, or at all events permit the plaintiff to have 5 new trial upon the question, as to the sufficiency of the allowance to the wife. Lord TENTExDEN.-This Is only a nonsuit ; and vnu did not desire at the ttial to let the case go to the jury uit the question of sufficiency. .Lr. GOsGtR Y.-But the sum, my lord, is small: only 2 15. lSly Lord TE-TERDEN.-rt is so; but theit, if we set aside the nousuit, the defendant wil probably hbave other actions, His Lordship and the other learned JAdges then delivered their opinions seriatim. This case they thought -was disdin. guishable from that of "Hopkinson v-)Fletcher." In that case the annual allowance had been pai'iCtfter the proceedings in the Spiritual- Court had ceased;and not under a decree of that Court as In -the przsent-qase.nt-H .ire the party bad been decrecd to pay alimono by ,she ConsiNtory Court, and having continued the-payiment nJer the suit ad been appealed to-the Arches Court, Ir'ntast be takn toie'ba payment made under the auth'641tyof.thie Court, thOlsgh the decree -had ceased to be bin4dlBuinpoa ihe defendant .- Ps-infacie the-allowance of girniuy was to be ttaken-as evidence of the sufficiency of use ameunt,-.ehat amount being fixed,'according to-the means of the party, and-his sruLatiouin-lifej- For these reasons the Court vere-ot' opinion that the- debt, `inquestioh,bdeing-cori. rracd dusring the paymnent of alimon y, the husbaad was not libe rueacd counsel, therefori, took no rule. E:1 PARTE SYr Ti. The ATTORNEY.GENERAL movt .d the Count on the pant if Mtr. I-. WV. Carmichael Smyth,, -tbe defendant in the prc. *edmg case, for leave to exhibit ar ? les of the peace againmt :li2n Aan his wife. Mlr. Smyth ',ejX g swoin to the aiti.ler, hey wvne resd ; they set for:~-g St a r. Smyth bad been [epmastd from hsisvw~ - n,e the year- 1824, and that-tinot June, 18o, she hadbeeu itmnualy iitruding hersef into I his-presence and Insulting him; that on the 9th of January, 1829, she went to his residence, then in the Adelil, and ue. manded admittsnce* that being refused, she brandished handkerehief against hi window, and exclaimed, "Co out, you coward; corme out ca ard V' that s)We repeate her visit in the evening, and toep anlitted th. ,hetobject in coming in tbe morning was 0,1hrs ewhil,h at on the evening of the 18tb of Novembel, tst. went to his house, in the parish of St. (ilea n. te.firlds, with an iron crow.bar, ard hai since dXclared that her objeet was to break the windows; that en tlei8th of December Ia, Mr. Smytb found in his letter-box a letter In her handwfiting, de' nnand'1n some papers, tbreatening, that if theywerenotsent, it A=l be "1 tbe worse for him ;" and eoncludine with a recmmedaton o hm t "tke areof his head ! Mr.Smytxhi hvhing swore thtat ehe dried not exhibit the articles &om any hatred, mailice, or ill.will towards his wvife, but sjI~le for the preservation ot his fe and person from danger, The learned Judges consulted together for a few minutes, Lord TBNTERDEN said, "We don't think there is such apprehension of personal danger. as to render this proceeding necesvary.c Air. Smyth then left the court. I COURT OF KING'S BEl!NCfl.W's' rvwrF, 1- COLLINS V. GODEFROY.