to be brought if it does not possess the power to have the action properly tried. The plaintiff has a patent for a machine used in making bobbin lace. The defendant is a manufacturer of that article, and, as the plaintiff alleges, he is making it with a machine constructed upon the principle of the machine protected by the plaintiff's patent. Now the manufactory of the defendant is carried on in secret. The machine which the defendant uses to make bobbin lace, and which the plaintiff alleges to be a piracy of his invention, is in the defendant's own possession, and no one can have access to it without his permission. The evidence of the piracy at present is the bobbin lace made by the defendant. The witnesses say that this lace must have been manufactured by the plaintiff's machine, or by a machine similar to it in principle. This is obviously in a great measure conjecture. No Court can be content with evidence of this description. There must be an order that plaintiff's witnesses shall be permitted, before the trial of the action, to inspect the defendant's machine, and to see it work." (2 Coop. C. C. 56 (n.).)

(8) BROWN v. MOORE. [1816]

Lord Eldon, referring to this case in Kynaston v. The East India Company, said: "I remember a case, where, on a suggestion that a machine used by the defendant was an infringement of a patent, the Court ordered the defendant to allow an entry into his premises for the purpose of ascertaining by inspection whether the machine was an infringement." (3 Swan. 264.)

(t) RUSSELL v. COWLEY. [1832]

The Court not only ordered that the plaintiff's witnesses should inspect the defendant's machinery at work, but that the defendant's witnesses should inspect the plaintiff's patented machinery at work pending an action for infringement, the object of the Court being to enable the parties to give the best evidence as to whether the defendant had been guilty of infringement or not. (1 Web. P. C. 458.) (u) MORGAN v. SEAWARD. [1835]

The defendant was ordered to permit, after reasonable notice, an inspection of machinery made, or to be made, in pursuance of a certain contract. (1 Web. P. C. 169.)

(c) CROFTS v. PEACH. [1836]

In an action for the infringement of a patent, the plaintiff will not be compelled to produce a specimen of the patent articles, to enable the defendant to prepare his defence to the action. (2 Hodg. 110.) (w) RUSSELL v. CRICHTON. [1837]

On motion by plaintiff for an order to inspect defender's works, the defender alleged that his manufacture involved a secret process, the value of which would be lost, if inspection was allowed :Held, that some inspection must be allowed, or else any patent might be infringed with impunity; and order pronounced for giving inspection of the works and manufacture of both parties; the viewers being warned not to use any private information

which they might acquire through that inspection, except for the purpose of giving evidence. (15 Dec. of Crt. of Sess. 1270.) (x) AMIES v. KELSEY. [1852]

An application to inspect the defendant's machinery may be made by the plaintiff under 15 & 16 Vict. c. 83, s. 42, whenever an action is pending, even before the delivery of the declaration; but such inspection will not be granted as of course, or without the party applying for it showing that the inspection is material for the purposes of the cause. (22 L. J., Q. B. 84; 1 B. C. C. 123; 16 Jur. 1047.)

(y) SHAW v. THE BANK OF ENGLAND. [1852]

In an action for the infringement of a patent, the Court will not grant an order, under the 15 & 16 Vict. c. 83, s. 42, for an inspection of a machine upon an affidavit "that the machine used by the defendants is the same for which the plaintiff has obtained a patent." (22 L. J., Exch. 26.)

(y*) HARRISON v. SPIRE. [1853]

A rule nisi for an order to inspect defendant's machinery was granted on motion. (22 L. T. Kep. 92.)

(z) VIDI v. SMITH. [1854]

The "inspection" mentioned in the 42nd section of stat. 15 & 16 Vict. c. 83, is an inspection of the instrument or machinery manufactured or used by the parties, with a view to evidence of infringement, and does not refer to an inspection of books, which is provided for by another Act of Parliament. (3 Ell. & B. 969 ; 1 Jur., N. S., 14; 23 L. J., Q. B. 342.)

(a) JONES v. LEES. [1856]

In an action by a patentee against his licensee on a covenant to pay for roving machines made with the plaintiff's invention, and to make none without,-breach, first, in not paying for roving machines made with the invention; and, secondly, in making machines without it; the defendant having, in answer to interrogatories, admitted the making of many hundreds of roving machines, but not with the plaintiff's invention, and having declared that he could not state to whom they were sold, nor give any further information about them, without disclosing his own evidence; and the plaintiff claiming in respect of all the machines the defendant had made, under one or other of the covenants, and asserting that he had seen some of them, which had his invention applied-Held, that the defendant was entitled to such particulars as should describe those portions of the machines to which the plaintiff contended that his invention had been applied, and that the plaintiff might inspect the machines on the premises of the defendant, and also examine him vivá voce. (25 L. J., Exch. 241.) (b) MEADOWS v. KIRKMAN. [1860]

In an action for the infringement of a patent for a mode of making veneers or mouldings, the Court refused to order an inspection by

the plaintiff of the defendant's manufactory and machinery; it being doubtful on the plaintiff's affidavit whether his patent was for the kind of veneering, or for the process by which it was done; and the defendant positively swearing that he used no machinery in the process. (29 L. J., Exch. 205.)

Pollock, C.B., said: "We ought not to grant such an inspection without, at least, as good a ground for it as would be required in a Court of Equity; or for any inspection of books or documents. Then it must appear that what is asked is really required to prove the plaintiff's case.'

(c) THE PATENT TYPE FOUNDING COMPANY v. LLOYD; SAME v. WALTER. [1860]

In an action against a printer for an infringement of a patent for improvements in the manufacture of type, the improvements consisting in the use of lead, tin and antimony in certain proportions, the plaintiff applied to the Court under the 42nd section of the 15 & 16 Vict. c. 83, for leave to inspect, and, if necessary, to take specimens of the type for the purpose of analysis. His affidavit stated that he had obtained from the defendant specimens of the type and caused them to be analysed by a chemist who was dead, and that the type so analysed was an infringement of the patent; but did not set out the report of the chemist or state its substance, or whether or not it was in writing. The Court refused to make an order that the plaintiff should be at liberty to take specimens for analysis. (5 H. & N. 192; 29 L. J., Exch. 207; 6 Jur., N. S., 103.)

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Martin, B.: "I think that we ought to look at the injunction, inspection and account in the same spirit, and grant or refuse them on such terms as would be fair between the parties." (5 H. & N. 198.)

Bramwell, B., said: "It is difficult to say that a person authorized to inspect might not consume a small portion of the matter to be inspected. Probably inspection must be construed with reference to the matter to be inspected. If the party inspecting cannot otherwise understand its nature and quality, he may probably consume some small portion of it; but when a sensible meaning with reference to the subject-matter can be given to the word inspection by construing it inspection by the eye, I think it must be confined to that. Type can be inspected by the eye. I think in the present case that more is asked for than the Court has power to grant." (Ib. 200.)

Channell, B., said: "I do not say that the application in point of form must be for an injunction, yet I think that the right (to grant inspection) depends on the plaintiff satisfying the Court that they would have granted an injunction if asked for." (Ib.)

On an application to the Court of Chancery, Wood, V.-C., Held, that laches sufficient to defeat the plaintiffs' right to an interlocutory injunction was no bar to an order on the same motion for inspection, and made an order that the plaintiffs should be at liberty to take specimens of the type for analysis. (John, 727.)

(d) DAVENPORT v. JEPSON. [1862]

Ordered that the plaintiffs and the defendant, Henry Jepson, by their solicitors and scientific witnesses, be at liberty, from time to time, upon giving three days' notice of their intention so to do, mutually to inspect the machines heretofore used by the plaintiffs and the said defendant in the manufacture of chenille, and that the same machines be put to work upon such inspection, and that the plaintiffs and the said defendant, by their said witnesses and solicitors, be at liberty to take samples of the chenille made or to be made upon the said machines.

And further ordered that the plaintiffs, by their solicitors and witnesses as aforesaid, be at liberty, upon the like notice, to inspect the machines or exhibits marked, &c., produced by the said defendant, and referred to as exhibits in certain affidavits filed, &c., and to put the last-mentioned machines to work and to take samples of the produce thereof. (1 N. R. 307.)

(e) THE SINGER SEWING MACHINE COMPANY v. WILSON. [1865]

Where the defendant deals in machines which are, as is alleged by the plaintiff, an infringement of his patent, the defendant will not be ordered, in a suit in respect of such infringement, to allow the plaintiff to inspect all the machines in his stock; but he will be directed to verify on affidavit the several kinds of machines that he has sold or exposed for sale, and to produce one machine of each class for inspection. It is a matter of course to grant inspection where a prima facie case has been made out. (5 N. R. 505; 12 L. T. Rep., N. S. 140.)

(ƒ) PIGGOTT v. THE ANGLO-AMERICAN TELEGRAPH COMPANY. [1868] Inspection refused where it would have disclosed important trade secrets, and from the nature of the case, the plaintiff could have no difficulty in proving the nature of the alleged infringement used by the defendants. (19 L. T. Rep., N. S. 46.) "The Court ought to be satisfied of two things: that there really is a case to be tried at the hearing of the cause; and that the inspection asked for is of material importance to the plaintiff's case, as made out by his evidence." (Ib.)

(g) NEILSON v. BETTS. H. L. [1871]

Where, as in ordinary cases, the duty of establishing that the thing patented has been pirated lies on the patentee, courts of equity grant limited orders of inspection for the purpose of enabling him to discharge that duty. Such orders cannot be granted where the piracy alleged has taken place abroad. (L. R., 5 H. L. 1.)

(h) SAXBY v. EASTERBROOK. [1872]

The plaintiffs obtained a verdict in an action for the infringement of a patent; a rule to enter the verdict for the defendants was discharged; and the defendants appealed. An order was afterwards made for an account of profits, which was not appealed against, but on the parties appearing before the master for the purpose of taking the account, the defendants refused to produce

their books. The Court made absolute a rule for production and inspection of the defendants' books, and for interrogatories to the defendants, notwithstanding the pendency of the appeal. (L. R., 7 Exch. 207; 41 L. J., Exch. 113.)

(i) FLOWER v. LLOYD. C. A. [1876]

Where in a patent case the plaintiff and defendant are competitors in trade, and an order to inspect the defendant's works is made, it should be confined to scientific men, and not be made to include the plaintiff himself. (W. N. 1876, pp. 169, 230.) The plaintiffs alleging that when the inspection took place, the defendants fraudulently removed some of the stones alleged to be infringements, applied for a rehearing. Held, that the stones having been removed only to conceal the names of the customers and not for the purpose of concealing the process, there was no fraud. (10 Ch. D. 327).

(j) THE PLATING COMPANY v. FARQUHARSON. [1879]

The

The plaintiffs, patentees for improvements in electro-plating, applied for inspection of the defendants' process. The defendants objected on the ground that the process was a secret one. Court appointed an analyst to see the process and take samples of the solutions used and to report to the Court upon the facts and his opinions founded upon them. The report was perused by the judge and the leading counsel and returned to the judge, and the Court refused to allow the analyst to be called or crossexamined. (Griff. 187.)

(k) GERM Milling Company v. ROBINSON. [1885]

The assignees of a patent, which claimed the discovery of a new process or product but not any novelty in machinery, brought an action for infringement. They obtained an order for inspection of the defendants' process and took ninety-three samples. The defendants applied for an order to inspect and take samples. Held, that both the Court and the defendants might be materially assisted by evidence as to the mode in which the patent was worked and the product produced on behalf of the plaintiffs and that the defendants ought to be allowed inspection of the process as worked by the plaintiffs or their licensees (if willing), with liberty to take samples. (55 L. J. Ch. 287; 53 L. T. 696; 34 W. R. 194; 3 O. R. 11.)

(1) DRAKE v. MUNTZ'S METAL COMPANY. [1886]

In an action for infringement, the plaintiff took out a summons before delivering his statement of claim for an affidavit verifying the machines and processes used by the defendants, and for inspection. The defendants had already offered inspection. Held, that the plaintiff was only entitled to an order for inspection, the Court having no power to require the defendant to make an affidavit, nor to work the machines in the plaintiff's presence. Costs, costs in the cause. (Griff. 78; 3 0. R. 43.)