improvements on an old machine, the defendants were allowed to plead that two parts of the invention were not, nor was either of them, a new manufacture within the Statute of James. But the Court refused to allow them to plead, that as to a part one A. B. was the first and true inventor, and that before the grant of the Patent A. B. and others publicly used and exercised in England a part of the said invention.d

pleas.

The defendant will not be allowed to annex copies of Insertion of drawings in the drawings to a plea setting out the Specification. Drawings annexed to the plaintiff's Specification being copied into the pleas, the Court granted a rule calling on the defendant to show cause why such pleas should not be struck out, or why such drawings should not be struck out as surplusage, and as contrary to the rules of pleading. The rule was afterwards enlarged, but arrangements having been entered into between the parties, which rendered the trial of the cause unnecessary, it never came on for argument.

In an action by an assignee the declaration alleged, Disclaimer. that, after assignment, the grantee of the Patent, pursuant to Stat. 5 & 6 Will. IV. c. 83, entered with the Clerk of the Patents a disclaimer of part of the title of the invention. The defendant pleaded, that, before the making of the disclaimer, the grantee had assigned the Patent to the plaintiff, and at the time of making the disclaimer was not a person who could lawfully enter such disclaimer; without this, that, pursuant to the Statute, he entered the disclaimer. It was held, that under this traverse the only issue raised was whether, in point of fact, a disclaimer was entered by the grantee.f

d Bentley v. Keighley (1844), C. B., cotton-carding machine, 6 M.

& G. 1039.

e

Sealy v. Browne (1845), B. C., per Williams, J., 14 L. J. (N. S.), Q. B., 169.

f Wallington v. Dale (1851), gelatine, 6 Ex. 284. As to plea that the infringement was before Disclaimer, see Perry v. Skinner (1837), Ex., pens, 2 M. & W. 471.

Power to deliver written

Written interrogatories as to matters on which disinterrogatories. covery is sought may, by order of the Court or a judge, be delivered by either plaintiff or defendant to the opposite party, provided such party would be liable to be examined as a witness upon such matters. The answers to such interrogatories must be made in writing on affidavit within ten days of such delivery, unless the time for answering be extended by the Court or a judge. In the case of a body corporate any officer of such body may be required to answer. Neglect or refusal to answer is a contempt of Court.P

Affidavits of the

to interrogate.

The application for such order must be made upon an party proposing affidavit of the party proposing to interrogate, and his attorney or agent, or, in the case of a body corporate, of their attorney or agent, stating the deponent's belief that the party proposing to interrogate will derive material benefit in the cause from the discovery which he seeks, that there is good cause of action or defence upon the merits, and, in the case of application by the defendant, that the discovery is not sought for the purposes of delay. The Court may, under certain circumstances, dispense with the affidavit of the plaintiff or defendant.

Oral examination.

Postponement of trial, scire facias pending.

If the party interrogated fail, without having good cause, to answer sufficiently, the Court or a judge may order such party to be orally examined, and produce documents, before a judge or master, as to such points as they or he may direct. Such judge or master, if required, to report specially, if need be, to the Court the conduct or absence of any witness or other person. The costs of the rule and examination are in the discretion of the Court. The depositions taken on such examination are to be returned to the office of the master of the Court."

Notice of trial by proviso having been given in an

P Stat. 17 & 18 Vict. c. 125, s. 51.

q Ibid. s. 52.

X

action brought by an assignee, in which action the validity of the Patent was put in issue, the Court, at the instance of the plaintiff, postponed the trial on the ground that in a scire facias brought by the defendant a rule was pending in the Court of Queen's Bench for entering a verdict for the Patentee. But the Court will not, except under very peculiar circumstances, order the trial of an action brought to try the validity of a Patent to be postponed till scire facias brought to repeal the Patent has been disposed of. The adjournment of the trial is, however, by a recent Act, placed entirely at the discretion of the Court or judge."

A leading feature in the new Common Law Procedure Arbitration. Act is the decision of matters in question by arbitration. At any time after the issuing of the writ, if it be made appear to the satisfaction of the Court or a judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, the Court or judge may either decide the matter in a summary way or order such matter wholly or in part to be referred to an arbitrator to be appointed by the parties or to an officer of the Court, or, in country causes, to the judge of any County Court; the decision or order of such Court or judge, or the award or certificate of such referee, to be enforceable by the same process as the finding of a jury on the matter referred. By section 4, power is given to the Court or judge, in the event of the allowance or disallowance of any items in such account depending on a question of Law fit to be decided by the Court, or upon a question of fact fit to be decided by a jury or by a judge acting under the provisions of sec

* Smith v. Upton (1843), C. B., Bynner's Patent, 6 M. & G. 251. y Muntz v. Foster (1843), C. B., metal ship-sheathing, 6 M. & G. 734; 7 Scott, N. R. 471; 1 D. & L. 737.

z Stat. 17 & 18 Vict. c. 125, s. 19.

a Ibid. s. 3.

Powers of arbitrator.

tion 1, to direct a case to be stated or an issue or issues to be tried, the decision of the Court and the finding of the jury or judge to be taken and acted upon by the arbitrator as conclusive.

The mode of proceeding and powers of the arbitrator are similar to those previously existing upon a reference made by consent under a rule of Court or judge's order.b The award is to be made within three months from the date of the reference, unless the parties or the Court enlarge the time. It may be stated in the form of a special case for the opinion of the Court.d Applications to set aside the award made on a compulsory reference must be made within the first seven days of the term following its publication. It may, by the authority of a judge, on such terms as he may prescribe, be enforced at any time after seven days from the time of publication, notwithstanding the period for setting it aside has not elapsed. If, after all parties have agreed to submit to arbitration, any one should commence an action, the Court or judge may stay proceedings. If either party refuse or neglect to appoint according to the terms of the document authorizing the reference, a judge of any of the Superior Courts of Law or Equity at Westminster may appoint an arbitrator, umpire or third arbitrator, as the case may be, with powers such as he would have had if appointed by consent of all parties. If the reference be to two arbitrators, one to be appointed by either party, and one fail to appoint for seven clear days after the other shall have appointed, the award of the one arbitrator so appointed shall be binding on both parties, subject however to the revocation of the powers to such arbitrator, on such terms as shall seem just. If the reference be to two arbitrators, they may choose an um

pire. Unless otherwise provided by the parties, every agreement for or submission to arbitration may be made a rule of Court.'

day.

A rule for the costs of the day for not proceeding to Costs of the trial, pursuant to the notice, or not countermanding in sufficient time, may be drawn upon affidavit without motion. The defendant may move for this rule, although he has given notice of trial by proviso."

m

Cases for infringement have hitherto usually been tried The jury. by a special jury. The mode of summoning and empanelling juries is prescribed by the Common Law Procedure Act of 1852.°

Trial by the

The statute above mentioned has however, among Changes in practice. other very considerable changes in practice, introduced an alteration in the mode of trial, by allowing the parties Court. to any cause, by consent in writing, to dispense with the employment of a jury and to leave the decision of any issue in fact and the assessment of damages to the Court,P the Court, upon a rule to show cause or a judge on summons, thinking fit to allow such trial.

By section 6, the judge, in the performance of such functions, is empowered to direct a reference at the time of trial, if the matters in question involve accounts which cannot conveniently be settled by him; and, by section 8, to send back the matters referred for the re-consideration of the referee.

In how far this provision will be effective in substituting the decision of an intelligent judge for that of a jury, too frequently incompetent to grapple with the merits of the matter in dispute, must rest with the par

* Stat. 17 & 18 Vict. c. 125, s. 14.

m Stat. 15 & 16 Vict. c. 76, s. 99.

■ Blow v. Wyatt (1838), Ex., 4 M. & W. 407. Stat. 15 & 16 Vict. c. 76, ss. 104-115.

P Stat. 17 & 18 Vict. c. 125, s. 1.

1 Ibid. s. 17.

¶ See Gamble v. Kurtz (1846), sulphate of soda, muriatic acid, &c. 3 C. B. 425; Lovell v. Hicks (1836), baking apparatus, 2 Yo. & Coll. 472; Beard v. Egerton (1846), photograph, 3 C. B. 97.