is that the law was quite correctly laid down by this House in the year 1774.

Lord BROUGHAM. When I stated that I proceeded on the decision of this House in Roebuck v. Stirling, in the year 1774, I intended to have added that I should have so decided without that precedent. I entirely agree with my noble and learned friend that if this had been res integra, I should have so decided it.

Kelly and Godson, for the respondents. Your lordships purposing to affirm that judgment without hearing the respondents' counsel, we have to ask that it may be affirmed with costs, being directly in the face of a judgment of this House.

Andrews. No argument was allowed in the court below. Lord LYNDHURST, L. C. Here has been a decisión of a single judge, then of the whole court, as we think they ought to have decided; and therefore I think the interlocutors must be affirmed, and the appeal dismissed with costs.

Judgment accordingly.

In the foregoing case the respondents relied among other authorities upon Clarke. Laycock, heard before Lord Mansfield April 25, 1776, in which, according to Lord Gardenston (see 2 Hailes Ct. of Sess. Decis. 569), the plaintiff's patent for both kingdoms, Scotland and England, was set aside upon the evidence of Scotch witnesses, that the art in question had been practised in Scotland before the patents were granted.

Webster, however (1 Web. P. C. 441), says it is extremely doubtful whether any such evidence was given in the case, and cites Lord Lyndhurst as having said in Roebuck v. Stirling that the respondents in that case were not justified in the statement that such evidence was there given.

In two cases, Re Samuda and Re Griffiths (Hindmarch, 535), each party was applying for a patent for an invention which had previously been made the subject of a specified patent granted to Mr. Samuda for Scotland; and each party had gone through all the preliminary proceedings for obtaining a patent without opposition; but when they came to the Patent Office each party was opposed by a caveat entered by the other. Each party then petitioned the Lord Chancellor to seal his patent; and his lordship referred both petitions to the Solicitor-General to inquire and report whether the patents, or either of them, ought to issue. The Solicitor-General, after hearing counsel for each of the parties, reported that the invention had already been published in the United Kingdom (in Scotland), and therefore, according to the decision in Brown v. Annandale (above), it could not legally be made the subject of a patent, and that no patent ought to be granted to either of the petitioners. The petitioner

Griffiths being dissatisfied with the Solicitor-General's report, presented a second petition stating his exceptions to the report, and praying that his patent might be sealed. Lord Lyndhurst, L. C., held that the invention having been published in another part of the realm, it could not be made the subject of a patent privilege in England, and that neither of the patents could be sealed.

QUEEN v. NICKELS.

King's Bench, N. P., Feb., 1842.

(36 Mech. Mag. 141.)

Sufficiency of Specification.

A specification should distinguish what is new from what is old.
Parol evidence is not admissible to supply a deficiency in this respect.

Scire facias to repeal a patent.

The patent had been obtained for an invention intituled, "Improvements in machinery for recovering fibres applicable in the manufacture of braid and other fabrics." The defendant's specification commenced in the usual form, viz., by declaring that the nature of the invention and the manner in which it was to be performed were "described and ascertained in and by the following statement thereof, reference being had to the drawing annexed, and to the figures and letters marked thereon-that is to say, the invention relates "to certain improvements in or additions to the apparatus or parts constituting what is called braiding or plaiting machines, whereby I am enabled," etc. The defendant then proceeded to describe different kinds of braided fabrics which the machinery would produce, after which he proceeded as follows: "The construction of braiding or plaiting machinery, wherein all the threads partake of like movements, and all aid in forming the fabrics of plaited threads, being well known in the manufacture of braids, it will not be necessary to enter into a long description of the same. All that will be required to make the invention clear and enable a workman acquainted

with such machinery readily to perform my invention." It would be expected from this that the specification was about to declare what it is, which would be sufficient to enable a workman to perform the invention; but the sentence is not completed, the patentee merely proceeding to say immediately after the words "perform my invention," as quoted above, "which is only applicable to such machines as work with four or more heads or circular tables for actuating a system or series of bobbins," etc. The specification then proceeded to describe the uses of the machinery for making the various fabrics which it was intended to produce, after which it described the drawing annexed. The specification did, in fact, describe the whole of the machinery, including both the old parts and those claimed by the patentee to be new; but it did not in any part of it point out which of the parts were new and which of them were old. At the end of the specification the defendant stated that he made no claim to any of the parts of the apparatus constituting the machine separately, nor combined so far as the same had been before known; but there was nothing in the specification which could enable any person to ascertain to which of the parts of the machinery the disclaimer was intended to apply.

The counsel for the prosecutor objected that the specification was insufficient, because it clearly appeared upon the face of it that some parts of the machinery described were old, and there was no part of that document which either pointed out what was the new invention claimed by the patentee, or the old parts which he disclaimed.

For the defendant it was contended that he was at liberty to give evidence to show what was new and what was old. But the cases of King v. Wheeler (1 ante, p. 317) and Neilson v. Harford (ante, p. 231) were cited to show that the construction of the specification was for the court and not the jury, and that such evidence was not admissible.

Lord DENMAN, C. J., adopted the language of Lord Ellenborough, in the case of Macfarlane v. Price (1 ante, p. 227), and said that the alleged improvements were not

sufficiently ascertained or described, either by words or by figures, and that the wit of man could not discover from the specification what was new or what was old, or what he was warned from doing. He also held that parol evidence was not admissible to explain the specification and to show what was new; and he directed the jury to give a verdict for the Crown, which was accordingly done.

naces.

BAIRD v. NEILSON.

House of Lords, March 21, 1842.

(8 Clark & F. 726.)

License. Estoppel against Defence.

N obtained a patent for smelting iron by the use of heated air applied to furB obtained a license from him to use this process on the payment of 18. per ton on the iron thus smelted. Litigation arose between them, and it was agreed by an instrument in writing, dated November 11, 1833, that both parties should withdraw their law processes; that “in consideration of the present payment of £400 to be accepted by N in full of 18. per ton on the whole iron smelted from the erection of B's works up to November 11 current, and in consideration of the payment of 18. per ton upon the whole iron which shall be smelted from November 11 until the expiry of the letters patent, by the use of heated air in any of the modes heretofore applied, or in any other mode falling under the said patent," N should grant to B a license, which further on in the agreement was described to relate to the application or use of heated air in any of the modes heretofore practised at B's works, or in any other mode falling under the description in the said patent, or in the specification thereof." N afterward instituted a suit to compel B to perform this agreement. B instituted a cross suit to suspend N's proceedings, on the ground that the process of smelting by heated air, used at B's works, did not fall within the patent. Held, that after this agreement B could not set up such a defence to the claim of N.

Appeal from Court of Session of Scotland.

James Beaumont Neilson, one of the respondents, on October 1, 1828, obtained letters patent for "an improved application of air to produce heat in fires, forges and furnaces, where bellows and other blowing apparatus are re

quired." The other respondents obtained from Mr. Neilson a share of or interest in his patent.

An agreement was made granting the appellants license to use the invention in blowing their smelting furnaces at Gartsherry, for the term of the patent, they paying to the respondents" the sum of 1s. for every ton of iron smelted." To terminate subsequent litigation between the parties, a new arrangement was entered into. This consisted of a license and contract, under which the appellants should discharge the process of suspension taken out, in which they disputed the validity of the patent, and denied that the mode pursued by them in the application of heated air to the smelting of iron from the ore at their works at Gartsherry fell under the invention. The respondents should, in consideration of the payment by the appellants of £400, to be accepted by the respondents in full of 1s. per ton upon the iron smelted by the appellants at Gartsherry, by means of heated air, until November 11, 1833, discharge the letters of horning raised by them against the appellants, and the process of suspension for having the appellants prohibited and discharged from applying heated air by means of the apparatus then used by them in the smelting of iron from the ore at their works at Gartsherry. The respondents also, in consideration of the payment of 1s. per ton upon the whole iron which had been or should be smelted by the appellants, from November 11 till the expiry of the term of the letters patent, by the use of the heated air in any of the modes heretofore applied, or in any other mode falling under the said patent, should grant the appellants a license to use the invention at the iron works at Gartsherry, in so far as applicable to the smelting of iron from the ore in blast furnaces. The appellants further bound themselves during the subsistence of this license, neither directly nor indirectly to challenge the validity of the patent, nor to suspend any charge that might be given for payment of the sums to become due from them, or for implement of the obligations hereby incumbent on them, so long as the said letters patent were not declared void and null under a penalty stipulated.