by the consent of the parties (b), it is not thereby vitiated: they are collected [176] in Com. Dig. tit. Fait (F. 1). Now the alteration in this instrument was not material in my opinion; it was moreover made with the consent of both parties, and was merely intended to correct a mistake and carry out their original intention. It falls within that numerous class of cases upon bills of exchange, where, after a bill has been drawn and delivered, an alteration, made in pursuance of the original intention of the parties, has been held not to vitiate the bill; as where the words "or order" were introduced after the bill had been indorsed (a).

The utmost that can be said is, that the introduction of the words in this warrant of attorney (b) might save the parties some trouble and expense in proving that the defendant was in custody at the time the warrant of attorney was given; as it does not appear in any way to interfere with the object of the instrument. In Walmesley v. Bryant (1 Moo. & Rob. 529), where a bond was conditioned [177] for the payment of money, which was declared to be the same money as that secured to be paid by an indenture of even date, but it did not appear, by any recital, that the indenture required an ad valorem stamp, Parke B. held, that in order to dispense with an ad valorem stamp on the bond, it was necessary to produce the indenture, to shew that it was properly stamped with an ad valorem stamp. This however was not done for the purpose of negativing the obligation of the bond, but the party was put to this extra trouble from not having recited the fact in the deed.

On these grounds, therefore, I think the rule must be refused.

COLTMAN J. I am of opinion that the original warrant of attorney was valid. Objections on the stamp laws-though the revenue certainly ought to be protectedare not to be stretched against the subject. I think extrinsic evidence would have been sufficient to support this warrant of attorney so as to shew that it was good on the 13th of November.

The alteration did not vary the liability of the parties, for it was not in a material part, and, consequently, would not vitiate what was good before.

ERSKINE J. I also am of opinion that the warrant of attorney after the execution on the 13th of November was valid; and that the subsequent alteration did not deprive it of its validity. No case has been cited to shew that a 11. stamp was not sufficient on the 13th, as the instrument then stood; and I think it was not necessary to shew on the face of the warrant of attorney that the defendant was then in custody. In the schedule to 55 G. 3, c. 184, under the title Warrant of Attorney, the exception to the general duty is confined to the two cases where the payment of money shall be already se-[178]-cured by a bond, mortgage, or other security which shall have paid the ad valorem duty, and where the warrant of attorney shall be given to secure any sum of money for which the person giving the same shall be in custody under an arrest. In these cases a duty of 11. is imposed, the two cases being put on the same footing; and the same construction must be given to both exceptions. The present case, therefore, which falls within the latter class of exceptions, would be governed by Walmesley v. Bryant (1 Mood. & Roby. 529), which came within the former class.

Then I think if the stamp was sufficient as the instrument originally stood, without

(For this Comyns cites 2 Lev. 35 (Zouch v. Claye), where, after a bond had been executed by A. and B., the two obligors named therein, the name and addition of C., a third obligor, were interlined, with the consent of all parties, and C. executed the bond, which was held to be the joint bond of A., B., and C. He also refers to a dictum of Popham, in Cro. El. 627 (Markham v. Gonaston), in which, according to the statement in Comyns, it would appear that Popham had said that a material alteration made by consent, upon an agreement that an addition should be made after the deed is sealed, does not vitiate the deed. But upon referring to Cro. El., it will appear that the dictum is of a more qualified character: "But if it had been appointed by the obligor before the ensealing and delivery thereof, that it should be afterwards filled up, it might then, peradventure, have been good enough, and it should not have made the deed to be void." Vide ante, 172 (a).

(a) See Kershaw v. Cox, 3 Esp. N. P. C. 246, 10 East, 437; Jacobs v. Hart, 2 Stark. N. P. C. 45; Byrom v. Thompson, 11 A. & E. 31, 3 P. & D. 71. See also Brett v. Picard, 1 R. & M. 37; Attwood v. Griffin, ib. 425.

(b) As to the consequences of such an alteration, see Markham v. Gonaston, ante, 172 (a), 175 (a).

C. P. XII.-3*

the recital of the fact of the defendant being in custody, the subsequent alteration, by the introduction of the recital of that fact, was not material. If it were material, the only effect would be to make a new stamp necessary; but even then, for the reasons already given, I think the court ought not to grant a rule to set aside the warrant of attorney. But independently of that, the words introduced were in accordance with the original intention of the parties, and, therefore, according to decided cases, even supposing the alteration were material, a new stamp could not be necessary. CRESSWELL J. concurred.

Rule refused (b).

[179] GIBSON AND ANOTHER v. BRAND. May 3, 4, 5, 1842.

[S. C. 4 Scott, N. R. 844; 11 L. J. C. P. 177.]

In case, for infringing a patent for a new and improved process or manufacture of silk, the infringement alleged in the declaration was that the defendant had, directly and indirectly, made, used, and put in practice the said invention, and counterfeited the same: Held, that this allegation was supported by proof that the defendant had ordered silk to be manufactured by certain parties by the plaintiffs' process, and had afterwards received and sold the same.-A plea in an action on the case for infringing a patent, set out the specification in hæc verba, and alleged that the plaintiffs did not inrol any instrument other than that set out, and that such instrument did not particularly describe the nature of the invention. The jury having found a verdict for the plaintiffs upon their traverse of this plea: Held (hæsitante Coltman J.), that judgment could not be arrested upon the ground of the specification being otherwise defective. The third and fourth issues raised the question whether the alleged invention was a new invention; the jury found specially that it was not a new invention, or a new combination, but that it was an improved process: Held that, upon these issues, the verdict should be entered for the defendant.

Case, for the infringement of a patent, granted to the plaintiffs for a new and improved process or manufacture of silk, and silk in combination with certain other fibrous substances. The declaration stated that the patent contained the usual provisoes, as to the invention being new, and as to the inrolment of a specification; and that the plaintiffs were the true and first inventors of the process described, and did inrol a certain instrument in writing containing a proper specification. Breach: that the defendant had directly and indirectly made, used, and put in practice the said invention and every part thereof, and counterfeited, imitated, and resembled the same.

Pleas: first, not guilty; secondly, a traverse of the allegation that the plaintiffs were the inventors; thirdly, that the invention in the letters patent and in the specification mentioned, was not a new invention; concluding with a verification; fourthly, that the said alleged invention and improvement were of no benefit or advantage to the public; concluding with a verification; fifthly, that the said instrument in writing in the declaration mentioned, was as follows:

"To all to whom, &c. (It then recited the grant of [180] the letters patent to the plaintiffs, their executors, &c. with the provisoes for inrolling a specification, and then proceeded thus: Now know ye, that in compliance with the said proviso, I, the said J. Gibson, on behalf of myself, and also of the said J. G. Campbell, do hereby declare that the nature of our said invention consists; first, in a part of our process by which we discharge the gum from that peculiar kind of silk denominated silkwaste, when the same is in the state of sliver or rove; secondly, in a part of our

(b) The objection that a warrant of attorney has an insufficient stamp, or none at all, can be taken advantage of only by a motion to set the warrant of attorney aside. If it is a ground for refusing such an application that the defect may be cured, there seems to be no motive for incurring the expense of a stamp in any case.

The revenue would appear to be better protected, by granting the rule, and afterwards discharging it upon payment of costs by the party whose contravention of the law had occasioned the application.

process by which we dye silk-waste, when in the state of sliver or rove; thirdly, in a part of our process by which we spin yarn from dressed or heckled silk-waste of long fibres, either in the gum or discharged; fourthly, in a part of our process by which yarn from silk-waste with long fibres may be spun in combination with flax of a similar length of fibre; fifthly, in a part of our process by which yarn from silk-waste with long fibre is spun in combination with wool; sixthly, in the application of our improved process to the throstle-machine on the principle of the long ratch for the new and useful purpose of spinning silk-waste; seventhly, in certain improvements effected by us in the throstle-machine by which its utility in spinning silk-waste is greatly augmented; eighthly, in the application of water to silk-waste with long fibres in the process of spinning with the long ratch.

"Having thus explained the nature or leading characteristics of our invention, it is desirable before we enter into the practical details of them to give a brief outline of the methods, heretofore adopted, for spinning yarn from silk-waste.

"Silk-wastes differ considerably with respect to quality and cleanliness, and they are generally in a ravelled state. To free them from naps and other refuse matters, and to clear the ravellings, they are first submitted to the action of a machine called a breaker, for the purpose [181] of breaking or clearing out the more stubborn or knotty ravellings. The waste is next put under the operation of the dressing machines to be farther unravelled and cleared from naps and other impurities, which process also straightens the filaments and causes them to lie evenly together, resembling in this respect heckled flax, although the fibres of the latter usually possess more uniformity as to length. This process of dressing is applicable to silk-waste, either in the gum or discharged. The former, however, is more easily dressed, contains less refuse, and is generally of a better quality. The third process upon the ordinary plan is, to take the dressed silk to the cutting-machine, where it is cut into lengths of about two inches, a little more or less, according to circumstances. If the silk-waste that has been thus cut be in the gum, it is next discharged and afterwards dried. The silk having become matted in the discharging process, the fibres of it are next opened up by a scutching-machine, or other similar apparatus before it undergoes the process of carding. When carding, the roving is prepared by a similar engine to that used for cotton, and it is spun on the mule-jenny, which is on a similar principle to that of the cotton-jenny. Having thus explained the old ordinary process of converting silk-waste into yarn, I will proceed to describe our novel process, by which we produce our new or improved manufacture of yarn or thread.

"The silk-waste having been dressed in the usual way, or in any other manner that may be found more advantageous (such as heckling or otherwise), either discharged or in the gum, we submit it to the drawing, roving, and spinning machinery, thereby entirely obviating the supposed necessity of cutting or shortening the filaments of silkwaste, a destructive process, which has heretofore been considered as an indispensable sacrifice in order to convert it into yarn or thread. The kind of [182] machinery we have found to answer best for the drawings and rovings of dressed heckled or carded silk-waste of long fibres, is the same as that used by flaxspinners; and we adopt the same methods as are practised by them with long or cut-line flax. The silk is first submitted to the spreading or first drawing-machine, the slivers obtained from which are doubled and applied to the second drawing, and in like manner to the third drawing- machine, and finally to the roving-machine. The number of doublings and drawings requisite will depend upon the kind of silk used, which every competent manufacturer will know how to determine and arrange.

"It may be proper to observe, that there are several kinds of flax-drawing and roving machines, and as they are in common use for flax and tow, no description of them is necessary, and it will therefore be sufficient to distinguish them by their names of circular, spiral and sheet or chain. Cut-line flax and tow, drawing and roving machines are made either on the circular or spiral plans. The sheet or chain is also made for cut-line flax, but not for tow. The drawing and roving machines that we have found to answer best, are those which are made on the spiral plan, as the gills or heckles of these come closer to the nip of the drawing-roller than in either of the other plans; and thereby enables the short filaments of the silk to be drawn and distributed more uniformly with the long fibres than if the said heckles or gills were more remote from the drawing-roller. For the longest fibres of dressed or hecled silk-waste, we employ what is designated by flax spinners long-line preparation. For the medium

lengths of fibres of dressed, heckled or carded silk, cut-line; and for the shorter lengths tow-preparations.

"We have already noticed, that the roving from silk-waste may be made, either when in the gum or dis-[183]-charged, and that the said rovings may be spun to suit the particular kind of goods to which yarn or thread is to be applied; but as there is a much greater demand for silk yarn discharged than in the gum, we usually discharge the gum from the sliver obtained by the first drawing or spreading machine. For this purpose the sliver is put into hanks of about half a pound each, then each of these hanks is put into a little bag made of an open fabric, such as thin canvas; a quantity of these are collected (according to the dimensions of the boiler), put into the vessel, and discharged or 'boiled off' in the usual manner. After this, the hanks, still contained in the bags, are to be well washed, to free them from the deposition of the glutinous matter, or the presence of soap, alkali, or other impurities. The silk is now to be taken out of the bags with care, and, after being thoroughly dried, the hanks are to be put upon swifts, and after finding the end of the sliver, it is to be coiled into cans, or may be wound on bobbins, or otherwise disposed of, as may be convenient. The next operation upon these slivers consists in submitting them to the drawing-machines, whereby the required number of drawings and doublings are to be given, and finally the roving is formed as already mentioned. The process of boiling or discharging gum-silk, we sometimes apply after it has been formed into roving. In this case the roving is to be reeled from the bobbins into hanks of about half a pound weight each ; these are to be put into bags, and the discharging conducted by the same process as that described with respect to the sliver. The discharged roving is next to be wound on bobbins preparatory to spinning; but we give the preference to the roving made from silk which has been discharged in the sliver.

"Another improvement in our process or manufacture consists in dyeing the silk before it is spun into yarn or thread; and we find that this operation is best [184] performed after it has been discharged and washed, and in the form of the sliver as already described. After dyeing, the silk undergoes repeated doublings and drawings, and is finally made into roving, in the same manner, and by the same mechanism as are employed with the undyed silk. The process of dyeing is also applied by us to silk which has been discharged, previously to its being dressed or heckled; and we usually dye it in the hanks obtained from the sliver of the first drawing. The process of dyeing may also be applied to the rove, which is to be reeled from the bobbins into hanks, of a size and weight the most convenient to the dyer. After dyeing, it is to be wound upon bobbins previously to being spun; but we prefer the roving which has been made from silk dyed in the sliver. Care must be taken that the silk, whether dyed or undyed, be properly dried prior to its being submitted to any of the processes of drawing, roving, and spinning. The advantages obtained in this part of our invention, of dyeing the silk previously to its being spun into yarn or thread, consist in the certainty that the colouring matter will reach every fibre, and consequently produce a more uniform and perfect dyeing. We also find that a superior lustre is obtained by our mode over that wherein the silk is dyed subsequently to being spun; which effect we consider to be caused by the violent action upon the silk by the dyer's process, by which many of the fibres are broken and started from their parallel positions with respect to each other, thereby destroying the wiry and lustrous appearance of the yarn or thread.

"For making rove from silk-waste of long fibres and flax combined, and from silkwaste of long fibres and wool combined, we employ the same machinery throughout as we do for making rove from silk-waste alone. The proportions of silk-waste to that of flax, and of silk-waste to that of wool, are varied according to the par-[185]-ticular manufacture to which the yarns are to be applied. The method we have adopted is, to obtain slivers of flax, or of wool, from the spreading or first drawing machine. The number of slivers of flax or of wool to that of silk slivers obtained from the first drawings, is regulated in the second drawings, in proportions suitable for the peculiar description of yarn required.

"Having now explained the nature of the drawing and roving machinery which we have found to answer best, and the several processes of drawing and roving silkwaste alone, and of silk-waste in combination with wool and with flax, I will proceed to describe the spinning machine, by which the rove is drawn or elongated into strands, to be spun into yarn or thread. The annexed drawings, for the most part, represent

the well-known spinning frame called a throstle, on the principle of the long ratch, as employed in the spinning of flax, which machine, combined with the improvements we have applied to it, we apply to the new and useful purpose of spinning silk-waste of long fibres into yarn or thread, from rove, either in the gum, or discharged or dyed as before-mentioned, and also from rove made from silk-waste of long fibres, in combination with flax or with wool."

(The document then contained explanations of the machine, with references to letters and figures which would not be intelligible without a drawing, and which are not material for the understanding of the case.)

"Our application of the brass bosses to the drawing roller, together with the application of water, we have found to be an important improvement in the spinning of silk-waste, whether dyed or undyed, as the brass preserves the silk from stains which occur when iron is used. Neither the brass bosses nor the pressing rollers are fluted, which fluting we have found to be unnecessary in spinning silk-waste of long fibres with the ratch [186] corresponding in lengths thereto. Great advantages also result from employing the throstle-frame, instead of the mule-jenny, for spinning silkwaste. In the first place a great saving is made in the cost of production, by obviating the necessity of operatives at high wages. In the second place, by using a long ratch corresponding to the length of fibres to be spun, not only yarn or thread is obtained of very superior strength, but it can be spun to very fine numbers, even as high as No. 200, or upwards, on the cotton scale, à result quite unprecedented in spinning by the throstle. The application of water to the silk, communicated by means of the pressing-roller, not only toughens the fibres, but gives them a greater tenacity or adhesiveness to each other, enabling them to sustain the action of being spun, besides communicating a greater degree of flexibility, which facilitates or induces the ends of the fibres to adhere or incorporate more readily with the yarn. Likewise, owing to the short distance between the top of the spindle and the nip of the bosses of the drawing or delivering roller, the yarn is subjected to less vibration, and can be spun to finer numbers, than with the spindles at a greater distance. The silk yarn thus produced has a smooth wiry appearance, and when spun with but little twist, the natural lustre of the silk fibres is preserved, and it approximates in appearance to tram or organzine silk.

"The spinning frame just described is also applicable to the spinning of silk and flax, combined as well as to the spinning of a combination of silk and wool, in each case varying the sliding ratch to suit the lengths of the fibres to be spun.

"Having now given the necessary details of the manner in which our invention is to be performed, we desire it to be understood that we disclaim those parts of the process or mechanism, which were, or may have been, [187] previously to the granting of our patent, well known or in use for the same purposes; but we restrict our claims to the eight several heads of invention mentioned in the early part of this specification, all of which we believe to be new, and of great public utility. In witness whereof," &c. The plea then proceeded to state, that the plaintiffs did not, nor did either of them, within six calendar months, &c., inrol, &c., any instrument, &c., other than and except the instrument in that plea mentioned and set forth; and that that instrument did not particularly describe and ascertain the nature of the said supposed invention, and in what manner the same was to be performed. Verification.

The replication joined issue on the first and second pleas; and traversed the third and fourth, upon which issue was joined: and to the fifth plea alleged that the plaintiffs did, within six calendar months, &c., inrol, &c., an instrument in writing under the hand and seal of John Gibson, one of the plaintiffs, particularly describing and ascertaining the nature of the said invention, and in what manner the same is to be performed (to wit) the said instrument in the said fifth plea above mentioned and set forth; and that that instrument does particularly describe and ascertain the nature of the said invention, and in what manner the same was and is to be performed; concluding to the country; upon which issue was joined.

At the trial before Tindal C. J., at the sittings for Middlesex after Trinity term 1841, the specification set out in the fifth plea was read. It was proved on the part of the plaintiffs, that the defendant had ordered silk waste to be spun by certain parties in England, by a process similar to that described by the plaintiff, and had received and sold the silk so spun. Evidence was also given to shew, that the ordinary method of spinning silk waste, previously to the plain-[188]-tiffs' patent, was that