Particulars to be regarded in taxation of costs.

Treble costs.

title the Plaintiff in any such suit or action, or the
Defendant in such proceeding by scire facias, on obtain-
ing a decree, decretal order or final judgment, to his full
costs, charges and expenses, taxed as between attorney
and client, unless the judge making such decree or order,
or the judge trying such action or proceeding, shall cer-
tify that the Plaintiff or Defendant respectively ought
not to have such full costs.a If after a verdict with
contingent damages, on the argument of the demurrer
the Court hold the declaration to be insufficient, the
plaintiff is not entitled to deduct the costs of the trial
from the defendant's costs on the demurrer. In taxing
the costs in any action for infringement in any of her
Majesty's Superior Courts at Westminster or in Dublin,
regard is to be had to the particulars delivered in such,
and the plaintiff and defendant respectively shall not be
allowed any costs in respect of any particular, unless
certified by the judge before whom the trial was had to
have been proved by such plaintiff or defendant respec- .
tively, without regard to the general costs of the cause.

с

The provisions of Stat. 5 & 6 Will. IV. c. 83, s. 3, gave the parties in the like cases treble costs, "to be taxed at three times the taxed costs." The peculiar nature of the evidence required and the technical rules regulating taxation of costs seem to have devised treble costs, in the case of Patents, with the view of thus reimbursing the Patentee his actual expenses. The rule was, however, abused. Mr. Godson mentions an instance in which a successful Patentee commenced no less than forty actions. As to suing in formâ pauperis, see Rubery v. Morris.d

Stat. 15 & 16 Vict. c. 83, s. 43. See Gillett v. Wilby (1839), cab, 9 C. & P. 334.

Partridge v. Gardner (1849), 18 L. J., Exch. 415, and affirmed (1851), 6 Ex. 621, overruling Bird v. Higginson (1836), K. B., 5 A. & E. 83.

c Stat. 15 & 16 Vict. c. 83, s. 43.

41 Russ. & Myl. 415. See Tidd's Practice, and Chitty's Archbold Pr. tit. Treble Costs; Gillett v. Wilby (1839), cab, 9 C. & P. 334.

tific evidence.

Costs of experiments, models and scientific evidence Costs of scienare disallowed in taxation when made for the purpose of affording evidence on a point in dispute new to scientific men. In Moor v. Adam and Willis v. Peckham, g scientific and professional men, not being medical men, were declared disentitled to compensation for loss of time.

record of

After a verdict in a successful action" for infringement, Production of the Plaintiff produced the record of a former trial, in former trial. which the Patent had been affirmed, and claimed treble costs. Held, that the evidence of such former trial was admissible, and that the proper course was to produce such record after the trial, and not before it.

on the postea.

A Court of Equity regards the indorsement on the Indorsement postea of the facts found by the jury as much as the verdict, the whole inquiry being merely for the information of the Court of Equity.i

tions must state

When exceptions are taken to the direction of a judge, Bill of excepit is not enough to state in the bill of exceptions that he what the dideclined to direct the jury in the way suggested, with- rection was. out showing what his direction was. If, upon a bill of exceptions to the Judge's charge, the superior Court see that there was a misdirection calculated to mislead the jury, the Court has no discretion, but must allow the exception and grant a new trial, even although the verdict be right. Not so, however, in the case of a motion for a new trial on the ground of misdirection.

In all cases of rules to enter a verdict or nonsuit upon a point reserved at the trial, if the rule to show cause be

e Severn v. Olive (1821), sugar boiling by heated oil, 3 Br. & B. 72. f (1816), K. B., 5 M. & S. 156.

g (1820) 1 Br. & B. 515.

h Per Campbell, C. J., Newall v. Wilkins (1851), N. P., wire rope, 17 L. T. 20.

Per Cottenham, L. C., Kay v. Marshall (1841), flax spinning, 8 Cl. & Fin. 241.

* M'Alpine v. Mangnall (1846), C. B., weaving machinery, 3 C. B.

New trial, even if verdict right.

Motion for a new trial.

Notice of appeal.

Proceedings in the Court of Appeal.

Appeal.
House of
Lords.

refused, or granted and then discharged, or made absolute, the party decided against may appeal. In all cases of motions for a new trial on the ground that the judge has not ruled according to Law, if the rule to show cause be refused, or, if granted, be then discharged or made absolute, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be; or provided the Court in its discretion think fit that no appeal should be allowed. Notice of appeal must be given within four days of the decision complained of, or such further time as may be allowed by the Court or a judge. The appeal is to be upon a case to be stated by the parties, in which is to be set forth so much of the pleadings, evidence and the ruling or judgment objected to as is necessary to raise the question for the decision of the Court of Appeal.d

The Exchequer Chamber and House of Lords are the Courts of Appeal. Where the appeal is from the refusal of the Court below to grant a rule to show cause, and the Court of Appeal grants such rule, the rule is to be argued and disposed of in the Court of Appeal. The judgment of the Court of Appeal is to be such as should have been given in the Court below, and further proceedings in the action are to be taken upon it as if that judgment had been given by the Court in which the record originated. The Courts of Appeal may adjudge payment of costs, order restitution, and award process.h The House of Lords will not allow parties to raise objections on appeal which they did not raise in the Court below.i

Kay v. Marshall (1841), flax spinning, 8 Cl. & Fin. 244.

lease.

The questions arising out of licences differ but little Licences. from those connected with contracts in general. During Contracts. the continuance of the licence the Plaintiff may sue at any time for the breaches in any former year, but if the licence be at an end he must include in one action the whole gravamen he would probably sustain therefrom.' With Estoppel. respect to estoppel," the before-mentioned analogy, drawn Analogy of a from the relation of landlord to tenant in a lease, has been adopted as the standard of reference by Courts of Law in deciding matters at issue between the proprietors of Patent right and the Licencee. In a case before Lord Kenyon" it was held, that a Patentee having conveyed away his interest under the Patent, and subsequently infringed the Patent right, was estopped from denying that he had a good title to convey. In Hayne v. Maltby° the Defendant was held not to be estopped by covenants to use the invention in a particular manner, and not to use any other, from pleading in bar to the action that the invention was not new or that the Patentee was not the inventor. In deciding the case with reference to this analogy, Mr. Justice Buller observed, "The facts disclosed by the pleas are equivalent to an eviction of the tenant. A tenant enjoys the land leased until he is evicted, but Licencees, in the event of large infringement Turner on Pat. 70.

1 Clossman v. Lacoste (1854), Q. B., 23 L. T. 91.

m So called, according to Lord Coke, "because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth raised by implication." Among the rules laid down respecting estoppels are these: "Every estoppel that concludeth a man to allege the truth must be certain to every intent, and not be taken by argument or inference;" also, every estoppel ought to be a precise affirmation of that which maketh the estoppel, and not to be spoken impersonally." Co. Litt. 325 b; Ib. 352 a; Com. Dig. "Estoppel" (A 2); Willoughby v. Brook (1600), Cro. Eliz. 756; Rainsford v. Smith (1560), Dyer, 196 a; Taylor v. Zamira (1816), C. B., 6 Taunt.

524.

"Oldham v. Langmead (1789), 3 T. R. 439.

0

(1789) K. B., point net, 3 T. R. 438; Dav. Pat. Cas. 156.

By recitals.

Determination of the licence.

by the trade, find that they are paying valuable consideration for the grant which all the world use without it, so that in fact it is by analogy equivalent to eviction. In the common action for use and occupation, the tenant is not allowed to dispute his landlord's title."

In Bowman v. Taylor the defendants were held to be estopped by recitals in the deed of licence from disputing that the Plaintiff was the inventor, the invention was new, and that the Specification had been duly enrolled. But where issue is taken upon facts stated in a plea, which facts the Defendant is estopped in point of Law from pleading in bar, a judge cannot refuse to hear evidence upon that issue, but the Defendant is entitled to have his evidence submitted to the jury. Where, however a motion for an injunction against an equitable assignee of the whole interest of a Licencee is ordered to stand over, with liberty to the Plaintiff to bring an action, the equitable Licencee will not be required in Equity to admit the validity of the Patent or the fact of his being a Licencee.

In deciding the question of the determination of a licence by breach of the covenants the same analogy guides the Court. In Warwick v. Hooper' the Plaintiffs were the assignees of the Patent. The Defendant accepted a licence upon certain terms; amongst others, to pay rent or royalty to the amount of 2,000l. a year, to be made up at the end of each year in the manner stated in the licence, the Plaintiffs reserving to them

(1834) K. B., powerloom, 4 L. J., N. S., 58; 2 Ad. & E. 278; 1 Carp. 655: see also Bowman v. Rostron (1835), K. B., 2 Ad. & E. 295; and Lainson v. Tremere (1834), K. B., 1 Ad. & E. 792; 3 N. & M. 603.

P Bowman v. Rostron (1834), K. B, 4 L. J., N. S., 59.

Pidding v. Franks (1849), L. C., coffee and cocoa, 18 L. J., N. S., 295.

(1850) powerloom, 3 M1N. & G. 67. With regard to the relation of express to implied covenants, see Line v. Stephenson (1838), C. B., 5 Bing. N. C. 183; 7 L. J., N. S., 263.