Queen is a party, the Crown not being expressly named* in the Statute which gives the Bill of Exceptions (13 Edw. I. c. 31, Statute of Westminster the Second).

a

on demurrer.

Error lies from the judgment of the Court of Chancery Writ of error. in the Petty Bag Office to the House of Lords, and from the Court of Common Law to the Court of Exchequer Chamber. When judgment is given in Chancery upon a Writ of error demurrer, a writ of error, it is said, lies to the Queen's Bench to revoke such judgment for errors of process or errors of fact, as error coram nobis lies for errors of process or in fact in judgments given in the Court of Queen's Bench. It would appear, however, that writs of error upon judgments in Chancery for errors of fact or in process may be made returnable in Chancery. For errors in Law the appeal is direct from the Court of Chancery to the House of Lords.

The contest for the jurisdiction and formalities' attend- Cancellation of ant on the revocation of Letters-patent invalidated by the Patent. scire facias have been already alluded to." In the case of R. v. Steiner," after three formal citations, the defend

z 2 Hawk. P. C. c. 46, § 20; R. v. Vane, 1 Sid. 85; Kel. 15; 1 Keb. 32; 1 Lev. 68; Foster, Sci. Fa.. bk. ii. c. 7.

a The fiat of the Abbott's Forms, 45.

Secretary of State for the writ must be obtained, See note to Smith v. Upton, 6 M. & G. 257. b Bynner v. R., 9 Q. B. 523; Eastern Archipelago Company v. R. (1853), Exch. Ch, 1 C. L. Rep. 145.

e Smith v. Upton (1843), C. B., lamp, Bynner's Patent, 6 M. & G. 257. See cases on all these points cited, ibid. 258. See Jefferson v. Dawson, temp. Chas. II. 1 Siderf. 436, and notes to Jeffreson v. Morton, 2 Wms. Saunders, 6.

d Countess of Pembroke's case, 42 Ass. fo. 262, pl. 22; Dewkes v. Peyton, Style's Rep. 218.

e Bro. Abr. Error; Macqueen, Pr. House of Lords, 371. See Hindm. 313; R. v. Toly, Dyer, 1976; R. v.

Blage, ibid.

8 Supra, p. 177, Buron de Bode's case, 8 Q. B. 208; The Baron de Bode v. R. (1649), 13 Q. B. 380; Jeffreson v. Morton, 2 Saund. 6 a, 27; and see Corner's Crown Practice, 252; Tidd's Practice, 9th ed. 1095; 1 Eq. Ca. Abr. 128; R. v. Newton (1845), Hindm. 426; 5 L. T. 261, cited 9 Q. B. 528.

h (1852) L. C., 18 L. T. 267.

Costs.

ant not appearing, entry was made of his default, and an order made that the defendant should show cause on a day named why in default of the production of the Letters-patent the enrolment should not be vacated, and an attachment issue for the commitment of the defendant. The Patent was subsequently brought into Court. In R. v. Bynner interlocutory judgment was entered at the Crown Office and signed by one of the Masters on the Nisi Prius Record. The continuance and verdict, together with a judgment thereon drawn and settled by counsel, were entered by the attorney on the Queen's Bench Roll, and a transcript was then made and returned into Chancery. In the case of Nickel's Patent, the question of cancellation after judgment on scire facias came before the House of Lords, but the case being compromised, no decision was given. The Petty Bag Amendment Act confers upon all the Courts of Common Law the power "to give judgment and execute judgment as the Court of Queen's Bench might have done," without at all stating what that power was. Filing being substituted for enrolment in the case of the Specification, and the Attorney-General's warrant filed in the Office of the Commissioners alone retaining the form of the grant, the practice in future will probably be somewhat similar to that of removing a bill from the file.

h

As a general rule the Crown neither pays nor receives costs. If, however, in a scire facias to repeal a Patent, judgment be given for the defendant, the prosecutor will have to pay the costs of the action, according to the

' Corner's Crown Practice, 202.

(1841) 1 Phil. 36.

h Corner's Cr. Pr. 202.

1 Statutes 8 & 9 Will. III. c. 11, s. 3, and 3 & 4 Will. IV. c. 42, s. 34, which give costs of scire facias, are held to apply only to civil suits, where there are plaintiff and defendant.-Foster on Scire Facias, 276; R. v. Miles (1797), lamp, 7 T. R. 367.

terms of the bond. If after action commenced the defendant render his Patent valid by the entry of a disclaimer, he will be entitled to the costs of the action subsequently to such entry.

Every attorney or party practising on the Common Law side of the Court of Chancery is entitled to the same charges as are allowed to attornies or parties for business of a similar nature in Her Majesty's Superior Courts of Common Law.' By section 37 of the Stat. 12 & 13 Vict. c. 109, it is enacted, that "in all cases where any party shall be entitled to the costs of any such issues or of any other proceedings or matters provided for by this Act in any of the said Courts, such costs shall be taxed and regulated by one of the Masters of the said Court respectively, who shall endorse his allocatur on the rule or order, as the case may be, or upon the postea, before the same shall be taken or returned into the Court of Chancery as aforesaid."

The costs of motions and interlocutory proceedings are of motions. often granted by the Court. In R. v. Nickels," Lord Langdale, M. R., granted the costs of an application to set aside an irregular plea; and in R. v. Crawfurd," Lord Lyndhurst, L. C., granted the prosecutor his costs of opposing a motion to rescind an order of the Master of the Rolls. The order of the Court of Chancery may be enforced as a rule of Court under Stat. 1 & 2 Vict. c. 110, s. 18.°

× R. V. Mill (1851), M. R., instruments for marking, 14 Beav. 315. Stat. 12 & 13 Vict. c. 109, s. 25.

m Hindm. on Pat. 430.

n Ib.

• Foster on Scire Fucias, 89.

ment is.

CHAPTER IX.

ACTION FOR INFRINGEMENT.

What infringe- WHAT has been already said as to the subject matter of a Patent may serve to show the principles which determine the acts constituting infringement on the right. The privilege consists in the monopoly of an article of commerce created or improved by the Patentee. Any act, therefore, which interferes or tends to interfere with this monopoly, is an infringement.

Sale is infringement. Manufacture.

Actual sale of a counterfeit of the patented article is of course an infringement. The manufacture of it for the purposes of trade in the mode prescribed by the Specification," even although it be confined to a single instance, is also an infringement. It seems difficult, therefore, to supply the grounds on which "exposure for sale," which presupposes its manufacture for the purposes of trade, should be excepted from that category. The adoption of any one of the material improvements effected by the Patentee, where several such are included in the invention, is an infringement, as also, it would appear from a remark of Tindal, C. J.,

d

a Gibson v. Campbell (1842), silk, 11 J. (N. S.), C. B. 177.

b Huddart v. Grimshaw (1803), rope, Web. P. R. 102; Crossley v. Beverley (1829), gas apparatus, 1 Russ. & Myl. 166, n.; Web. P. R. 119. See, however, Delondre v. Shaw (1828), sulphate of quinine, 2 Sim. 213.

c Gillett v. Wilby (1839), N. P., cab, 9 C. & P. 334.

d Minter v. Williams (1835), K. B., chair, 1 Carp. 647; 4 Ad. & El. 251.

e Newton v. Grand Junction Railway Company (1845), Ex., iron axles, 5 Ex. 331; Sellers v. Dickinson (1850), Ex., power-loom, 5 Ex.

in Gibson v. Brand, is the ordering such goods to be Making for made by the process of the Patentee. A making, how- private use. ever, for private use, somewhat within the limits established in the decisions on Stat. 5 Eliz. c. 4, or for the purpose of amusement or scientific pursuits," would seem to be excepted, the wrong done to the Patentee by an infringer consisting quasi in tradendo, or delivering over for sale.i

the invention.

Piracy of the invention, however, in the exact shape Infringement laid down in his Specification by the Patentee, is not by variation of the usual shape in which infringement on his rights occurs. More frequently it is that of a modification of the means prescribed, and necessarily involves for its determination a knowledge of what constitutes the essence of the invention. This manifestly must depend upon the circumstances of each case. In some, a mere hint at the idea developed by the Patentee would enable a scientific and practical person to effect the desired end, by a variety of means; in others, the invention consists in an elaborate arrangement of details, and can scarcely be said to be founded on any single idea. In the former, the attention must be fixed on the principle, in the latter, on the material parts of the machine or substance produced, in determining the question of infringement.

In a Patent for the means of stopping power-looms Principle the when the shuttle stopped in the shed, the principle of essence. the invention was to transfer the momentum of the slay

"The old rule clearly applies, qui facit per alium, facit per se" (1841), N. P., silk, 4 M. & G. 179; Web. P. R. 627. See also Electric Telegraph Company v. Brett (1851), 10 C. B. 838.

↳ Jones v. Pearce (1832), wheel, Web. P. R. 125.

18 Rep. 129; Vin. Abr. "Trade" (B.); Bac. Abr. "Master;" Waggoner v. Fish (1610), C. B., candles, 2 Brownl. 289; Hobbs v. Young (1690), K. B., cloth, Carthew, 162. See per Story, J., Whittemore v. Cutter, 1 Gall. 429.

* Gamble v. Kurtz (1846), C. B., sulphate of soda, muriatic acid, chlorine and chlorides, 3 C. B. 435; Bramah v. Hardcastle (1789), watercloset, 1 Carp. 168.

S