and it is found by experience that it will not produce the effect designed, but that to make it of utility there must be a deviation from the specification, the patent is in that case wholly void. That rule was laid down in the case of Turner v. Winter, where all the doctrine upon the subject is to be found it is there stated, that if a man takes out a patent for several things, some of which are original and some not, or if there is any thing which will not answer the end proposed, the patent cannot be sustained. Having gone through Mr. Manton's evidence, Mr. Scarlett then stated, that he should produce a man from Birmingham, a perfect stranger to the parties, who had never seen Mr. Manton's patent, but who had made hammers with perforated lips many years since. He had not any then remaining by him, as they did not answer, but from recollection made one which was produced in court, having the lip and the perforated groove in the seat of the hammer. The groove did not go to the extremity of the seat, but Mr. Manton does not take out his patent for a part, but for the whole; not for the lip only, but for all the three; the groove, the hole, and the lip. A lock will be produced upon the same principle, made by a country workman, in consequence of his being desired to represent the same article he had before sold. It approximates so close to this patent, that the conclusion is inevitable that the whole of this patent is nothing more than putting in practice that which has long been exploded; that which neither separately or combined has

been found to be of any use. Witnesses will be called to prove that they made locks of this decription, and upon this principle; but not finding them answer, they were not brought into use. The groove in the hammer existed in all old firearms. It will be proved that there is no one particular in which this invention has any claim to originality; that locks upon the same principle were made years ago, and exploded years ago. Now it is not because a person chooses to revive a thing that is old and exploded, and takes out a patent for it, that such a patent can confer any right.

The witnesses on the part of the defendant were called to prove what had been stated by Mr. Scarlett, and amongst other things it was shewn by experiments made in court, that the powder passed through the perforated lip, by its own gravity, without the least difficulty.

LORD CHIEF BARON.-The powder passes through the same hole as the air. It seems to me, therefore, that the utility of this invention, and the purpose of this patent, wholly fail; for the purpose of the hole, as described in the specification, is to let the air pass through, and at the same time secure the powder from passing through : that of itself would be an answer to this action. Besides, on the other part of the case, the evidence is pretty strong.

Plaintiff nonsuited.

333

IN THE COURT OF COMMON PLEAS.

Joseph Manton v. John Manton.

20th June, 1815.

THIS was an action brought by Mr. Joseph Manton, under the direction of the court of Chancery, against his brother, Mr. John Manton. Its object was to complain of infringements upon two patents granted to the plaintiff; the first, dated the 6th of July, 1803, for "a hammer upon an improved construction, for the locks of all kinds of fowling-pieces and small arms," and the second, dated the 6th of September, 1806, for "an improvement in double-barrelled guns."

pro

Mr. Serjeant Lens stated the plaintiff to be the first and sole inventor of this improvement upon the hammer, the effect of which was that of ducing a better or more perfect way of loading fowling-pieces and small arms, without the danger of their hanging fire, and in such a way as to produce a certain explosion. It is a material object to have the powder in the barrel communicate as speedily as possible to the powder in the pan, for, if there is any disunion, the powder in the barrel will not take fire so instantaneously as if its communication was uninterrupted: the piece will either not go off at all, or it will hang fire; whatever, therefore, brings about such an unbroken

union must be a desirable object. In ordinary cases before this invention, when the wadding was rammed down there was always a quantity of compressed air within the barrel, which was forced out at the touch-hole. It was easy to let the air escape, but it was desirable that it should carry none of the powder with it, as that would make an actual discontinuance between the powder at the bottom of the barrel, and the powder in the pan. To remedy this defect, the invention of the plaintiff is very simple: it is, to have an aperture in the lip or cap that goes over the pan so small, that when the cap is down, the compressed air shall escape through the aperture, without discomposing the powder, but leaving the powder where it was. If the aperture is not very small, not only will the air be forced through, but the small grains of powder will be carried with it. It will be proved that the aperture is well adapted to produce the effect intended. This appears to be a very easy matter; it is difficult to conceive how it should not have been found out before. It often happens, that the merit of an improvement consists in a very small addition to the thing to which the improvement is applied. The aperture is very fine and minute, but it is sufficiently large to let the air escape, and yet small enough to prevent the powder from passing. The object is to have this smaller aperture precisely where the lip closes upon the touch-hole; and this invention has answered every purpose for which it was intended. It will be proved, that before Joseph Manton had his patent, there were

continual inconveniences from fire-arms not going off, or hanging fire; and that since this invention, there has been a more certain dependance upon the explosion taking place, and the piece neither missing nor hanging fire. The defendant, in imitating this invention, has not made the aperture precisely in the same line, but he has produced the same in an oblique line. When a man sets about to imitate the invention of another, he will not do it exactly in the same way. Instead of making the aperture through the pan, the defendant has made a small angle passing it obliquely. This is the nature of the infringement complained of. The question will be, whether this is a new invention, or whether it has existed from an antecedent time? In the latter case, the plaintiff can claim no merit; for that which was invented before never can become the subject of a patent. There may have been things something of this kind, but no such aperture as the one invented by the plaintiff has ever before been in use. There may have been hammers made with lips, but those lips were never perforated to produce the effect produced by this invention. With respect to the other patent, which gave to the plaintiff the merit of having invented an elevated top-piece for double-barrelled guns, it was observed, that if the point of view in a double-barrelled gun is carried on the same level, the person firing off the piece will send the shot in a line horizontal with the mouth of the barrel; the consequence will be, that if the object is at some distance, and the contents of the barrel are carried