for “a certain improvement or certain improvements in the making or manufacturing of paper."

The specification was enrolled in the Chancellory of Scotland, January 4, 1836.

The appellant (the pursuer in the court below) applied to the Court of Session for suspension and interdict against the respondents (the defenders in the court below), in using certain machinery in the manufacture of paper. The respondents, in their answers to the note of suspension, denied that the machinery complained of was substantially the same as that described in the specification; and stated further that the letters patent were void, because the alleged invention was not new, having been known and publicly used and practised both in England and Scotland before the date of the patent.

The note of suspension and interdict was then merely passed to try the two questions, of the infringement and the validity of the patent; the interdict was not pressed.

The appellant then instituted a summons for damages; in answer to which the defendants, as before, denied the infringement; also the validity of the patent on the ground that the invention was not new, having been known and publicly used both in England and Scotland prior to the patent.

The above two processes having been (according to the practice of the Scotch courts) conjoined by interlocutor, a record was made up and certain admissions and issues were agreed to.

The issues came to be tried before Lord Mackenzie, one of the judges of the First Division of the Court of Session, and a jury, on May 14 and 15, 1841; and after the evidence on the pursuer's part had been concluded, the counsel for the defenders, in his address to the jury, stated that it would be a part of the defenders' case to bring evidence to prove, inter alia, his averment on the record, that the invention specified by the pursuer had been publicly used in England before the date of his patent. Whereupon the admissibility of any such evidence was objected to by the pursuer's counsel on the ground that previous public use

of the invention in England was not a ground for invalidating the pursuer's patent for Scotland. Lord Mackenzie overruled the objection, and decided that the evidence was admissible, as proving a ground of the invalidity of the patent. Against this judgment the counsel for the pursuer excepted, and lodged the following minute :

"In respect of the opinion of the judge that the use and practice averred as to England is competent in evidence to establish the first issue for the defenders, the pursuer admits that the verdict must, in point of fact, go on that first issue for the defenders, subject to exception to the opinion of the judge; the pursuer admitting that, if the above point of law is decided against him, the defenders are entitled to judgment in the cause."

Upon which the jury, "In respect of the matters proven before them, and of the minute of the counsel for the pursuer, find for the defenders on the first issue."

The bill of exceptions came to be argued before their lordships of the First Division of the Court of Session, when, on July 8, 1841, they pronounced the following interlocutor: "The lords, having heard counsel for the parties, disallow this bill of exceptions."

The above decision in favor of the defenders was further carried out by the following additional interlocutor or decree: "The lords, in respect of the verdict of the jury in this cause, apply the same; and in the process of suspension and interdict, find the letters orderly proceeded, and dismiss the suspension; and in the action of declarator and damages, assoilzie the defenders from the conclusions of the summons and decern; find the defenders entitled to expenses in the said conjoined actions, and remit the accounts when lodged to the auditor to tax and report."

Against the above two interlocutors the appellant (the pursuer below) brought the present appeal, praying that their lordships would be pleased to reverse, vary or alter the same, or that he might have such relief in the premises as to their lordships should seem meet, and for the two following reasons:

1. There is no communication of rights under patents for

inventions between the subjects of the two parts of the United Kingdom, and therefore the fact that the improvement invented by the appellant in Scotland had been previously used in England, is not a ground in law for invalidating the patent for Scotland. The power of the Crown in Scotland to grant exclusive privileges in respect of new inventions is not given by any statute, but is founded on the immemorial usage of the Crown and the acquiescence of the nation. The attempts made to stretch this prerogative beyond its just limits gave rise to the Act of Monopolies (Acts of Charles I., 1641), which was declaratory of the principles of the common law, but left the prerogative of the Crown untouched. The terms of the Scotch patents varied, some being for thirteen, others for twenty-one years; since the union, the term prescribed by the Statute of Monopolies for England has also been adopted for the Scotch patents (Act of 1693, c. 12), but there is nothing to limit it to this.

The grants and the extent of the rights thereby conferred are as distinct since the union as before, each being confined to its own country; and in this respect each part of the United Kingdom must be considered as a distinct, separate and independent country and jurisdiction relatively to the other; for were it not so, but the kingdoms of England and Scotland are to be considered as but one country, all rights of patents for inventions should be co-extensive and equally effectual in both parts of the United Kingdom, a conclusion directly at variance with the acknowledged fact, since the patent for each country is strictly confined to that country; the freedom and intercourse of trade referred to in the Articles of Union do not extend to such rights as patents in either country. Patents for invention are not the only rights as to which a similar distinction exists respecting the rights of trade, since by the Scottish statute in favor of the royal burghs, the exclusive right of importing all foreign commodities for sale is conferred on the merchant-freemen of the royal burghs; and according to the legal construction of that statute, the word "foreign" must apply to England. But the case as to the rights under letters patent

for inventions is much stronger; for letters patent are, in their nature, matters of private right, constituted by grant ex speciali gratia on the part of the Crown, and accordingly pass in Scotland under the seal appointed by article 24 of the Treaty of Union, to be kept and used in Scotland in all things relating to private rights or grants which have usually passed under the great seal of Scotland, and which only concern offices, grants, commissions and private rights within that kingdom. Further, letters patent are accompanied by no interchange of rights and privileges between the subjects of the two parts of the United Kingdom, but letters patent for one country are entirely confined thereto, and have no effect whatever in the other. But except in regard to such privileges and advantages of trade and commerce, as to which it was provided by the Treaty of Union that there should be full freedom and intercourse between the subjects of the United Kingdom, and for the regulation of which the laws were after the union to be the same in Scotland as in England, article 18 of the Treaty of Union expressly declares "that all other laws in use within the kingdom of Scotland do, after the union, remain in the same force as before."

It would appear to follow, therefore, that all questions touching the validity of letters patent for Scotland must be tried and determined according to the law of that country alone, and without reference to the legal condition of the subject-matter of such letters patent as to freedom or restriction in England, or any other country. The general requisites of the law of Scotland with respect to letters patent are the same as of the law of England, except as regards the limits of their respective jurisdictions; but in applying those requisites, the matter must be considered solely with reference to the validity of letters patent in Scotland and the effects of rights arising under them in that country, just as if England had no connection with it.

2. Because, according to the just construction and true meaning of the letters patent granted to the appellant in Scotland, the requisite as to the novelty of the improvement is that it was invented in Scotland by the appellant;

and there is no condition, expressed or implied, that the mere circumstance of its having been previously known or used in England should infer a nullity of the patent.

The parts of the letters patent material to advert to are the following: First, the recital of the petition, which, having stated the invention by the appellant, proceeded as follows: "Quam inventionem credit pro generali beneficio et commodo futuram esse, dictam inventionem novam esse et haud unquam ante hoc factitatam aut usitatam fuisse per ullam aliam personam aut personas quascunque intra hæ regna ut intelligit et credit." Then follows the prayer for the grant of the letters patent: "Intra illam partem Regni nostri Uniti Magnæ Britanniæ et Hiberniæ Scotiam vocatam pro termino quatuordecim annorum, secundum statutum in eo casu factum et provisum." The letters patent then proceed, in the usual form, to make the grant in the terms of the prayer: "Pro et durante termino annorum in præsentibus mentionato, tenend. et habend., etc., pro et durante spatio quatuordecim annorum et usque ad plenum exitum et terminum eorum a data præsentium proxime et immediate insequent." The letters patent then contain the prohibitory part, and the following among other provisos : "Proviso semper, etc., dictam inventionem quoad publicum ejus, in illa parte Regni nostri Uniti Scotia vocata, usum et exercitum non esse novam inventionem vel a dicto Jacobo Brown ut prædicitur non esse inventam."

The statute referred to in the petition is the English Statute of Monopolies (21 Jac. I., c. 3); but no conclusion can be drawn from this circumstance inconsistent with the appellant's argument as to the foundation of the law of patents in Scotland; for in the dispositive or granting clause, as well as in the tenendum, the limitation is simply pro et durante spatio quatuordecim annorum a dato præsentium, without any reference to the statute; whereas, in the form of letters patent for England, the tenendum contains there also the words " according to the statute in such case made and provided;" whether with reference to the term of years only, or generally to the authority on which the grant proceeds, may be doubted; but the latter con