272 of 3 & 4 Vict. covering only nominal damages, cannot have his full costs, without a the former act. And the court held, that after CERTIFICATES, 5 & 6 W. 4, c. 83, s. 3; 3 & 4 VICT. c. 24, s. 2. in the operation was an action on the case for the infringement of a patent; and c. 24, s. 2; and the affidavit stated, that a prior action had been tried between notwithstanding the same parties, in which the plaintiff obtained a verdict, and the provisions of the stat. 5 & 6 the judge certified under the above statute that the validity of W.4, c.83, s. 3, the patent came in question before him. This certificate was the plaintiff regiven in evidence for the plaintiff on the trial of the present action, which was tried before Lord Abinger, C. B., on the 13th of July, 1840, when the plaintiff again obtained a verdict for costs, or treble nominal damages. Ten days before the trial (3d July, 1840,) certificate under the 3 & 4 Vict. c. 24 came into operation; but no application was made to the Lord Chief Baron at the trial to certify under that statute that the action was brought to try a right. The master refused to tax the plaintiff treble costs under the 5 & 6 W. 4, c. 83, s. 3, on the ground that the case fell within the provisions of the 3 & 4 Vict. c. 24. s. 2. Whately now contended, that the latter act could not have been intended to affect the right to treble costs under the 5 and 6 W. 4, c. 83, and further, that it did not apply to cases where it appeared by the pleadings in the cause that a bona fide right came in question. At all events, he urged that the Lord Chief Baron might now grant a certificate under the 3 & 4 W. 4, c. 24. In Shuttleworth v. Cocker (c), the Court of Common Pleas held, that a judge might alter his certificate under that act after the trial. the taxation the judge had no power to grant such certificate. PARKE, B.: If we entertained any doubt on this matter, we should think it right to grant a rule to show cause; but we do not. This is certainly an unfortunate case; but it is clear that it falls within the act of 3 & 4 Vict. c. 24, which applies to "any action of trespass on the case." Then it is said the Lord Chief Baron has still the power of certifying; but that is not so: the statute expressly directs that the plaintiff shall not recover costs where the damages are under 40s., unless the judge "shall immediately afterwards certify" that the action was brought to try a right, &c. It may even be a question, whether the judge could grant the certificate after another cause had been called on (d). ALDERSON, B., GURNEY, B., and ROLFE, B., concurred. full and reasonable indemnity as to all costs, charges, and expenses incurred in and about any action, suit, or other legal proceeding, as shall be taxed by the proper officer in that behalf, subject to be reviewed in like manner, and by the same authority, as any other taxation of costs by such officer." The 6th section provides that the act shall not extend to any action, bill, plaint, information, or any legal proceeding of any kind whatever, commenced before the passing of the act. The act passed 10th August, 1842. (c) 9 Dowl. P.C. 76; 2 Scott, N. R. 47; 1 Man. & G. 829. (d) By the above-mentioned act a plaintiff in an action for an infringement of a patent, who shall recover by the verdict of a jury less damages than forty shillings, will not be entitled to any costs in respect of such verdict, unless the judge before whom such verdict shall be obtained shall immediately afterwards certify that the action was really brought to try a right, besides the mere right to recover damages for the grievance for which the action was brought. The import of the word "immediately," the time within which the certificate will be good, has been much considered. See Thompson v. Gibson & Another, 5 Jur. 390; 9 Dow. P. C. 717; also Page v. Pearce, 9 Dow. P. C. 815. NEILSON'S PATENT. Letters patent, 11th Sept. 1828, to J. B. Neilson, "for the Title. improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required." 28th Feb. 1829. I, the said James Beaumont Neilson, do hereby declare that Specification, the nature of my said invention for the improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required, and the manner in which the same is to be performed, is particularly described and ascertained as follows: that is to say, a blast or current of air must be produced by bellows or other blowing apparatus in the ordinary way, to which mode of producing the blast or current of air this patent is not intended to extend. The blast or current of air so produced, is to be passed from the bellows or blowing apparatus into an air vessel or receptacle made sufficiently strong to endure the blast, and through or from that vessel or receptacle by means of a tube pipe or aperture into the fire, forge, or furnace. The air vessel or receptacle must be air-tight, or nearly so, except the apertures for the admission and emission of the air, and at the commencement and during the continuance of the blast it must be kept artificially heated to a considerable temperature. It is better that the temperature be kept to a red heat or nearly so, but so high a temperature is not absolutely necessary to produce a beneficial effect. The air vessel or receptacle may be conveniently made. of iron, but as the effect does not depend upon the nature of the material, other metals or convenient materials may be used. The size of the air vessel must depend upon the blast and on the heat necessary to be produced. For an ordinary smith's fire or forge, an air vessel or receptacle capable of containing twelve hundred cubic inches will be of proper dimensions, and for a cupola of the usual size for cast iron founders, an air vessel capable of containing ten thousand cubic inches will be of a proper size. For fires, forges, or furnaces, upon a greater scale, such as blast furnaces for smelting iron and large cast iron founder's cupolas, air vessels of proportionably increased dimensions and numbers are to be employed. The form or shape of the vessel or receptacle is immaterial to the effect, and may be adapted to the local circumstances or situation. The air vessel may generally be conveniently heated by a fire, distinct from the fire to be affected by the blast or current of air, and generally it will be better that the air vessel and the fire by which it is heated should be enclosed in brick-work or masonry, through which the pipes or tubes connected with the air vessel In the subsequent proceedings on the above, as well as on Crane's patent, the following inventions relating to the application of air to furnaces are frequently referred to: Botfield's Patent. Letters patent, 2d January, 1828, to Thomas Botfield, for "certain improvements in making iron, or in the method or methods of smelting and making iron." Specification." I, the said Thomas Botfield, do hereby declare, that the following is a particular description of the nature of my said invention, and methods and improvements in the smelting and making of iron, both in respect to principle, and the way and manner in which the same may be performed; that is to say, the principle is for causing or obtaining a blast of atmospheric air sufficient to smelt, fuse, run, or make pig, cast, or crude iron, from iron-stone or ore. This blast is to be produced by means of rarefied air, gas, flame, or heated air, from an oven, or fire-place, and is to be applied in, or to, a blast furnace, cupola, or air furnace; this I propose to effect by the draught of a powerful chimney or chimneys, which may be built separate, at any distance that may be most convenient, or may join to, or be made part of, the blast furnace or cupola, as may be found most desirable, and best to answer the purpose required, and which is to be connected by a flue or flues with the cupola, blast, or air furnace; but in case this draught should not prove sufficient for the purpose of smelting the ironstone or ore, I propose and intend to apply and use the common blast from machinery to assist the blast from the draught of the chimney; this is to be used at the same or any other twire. And I claim a right, and mean to use the atmospheric air, either separate, or mixed with gas, flame, or heated air: I also claim as part of my patent, the right to use and mix (with other materials) rock salt, common refuse or other salt, in any state or degree of refining, or any other substance of which soda (the mineral alkali) forms a part: this is to be mixed in the blast furnace, cupola, or air furnace, with the iron-stone or ore, and with the other usual materials of coke, or charcoal, and limestone, to which cinder (produced in the processes of converting pig, cast, or crude iron into malleable iron) may be added. And I propose to mix the salt or other substance containing soda in such proportions as I shall find necessary to cause the iron-stone, or ore, to melt or fuse sooner, or with less blast, fuel, or heat, Now I do hereby declare, that the before-mentioned principles comprehend the real object of my patent; and in order for the better understanding the method or methods in which the aforesaid may be reduced and applied to practical use, I wish it to be understood, that although I may vary the mode, way, and manner by a variation of applications to produce the said effects, and maintain the main purpose intended, as circumstances may require, yet I principally propose to adhere to the method or methods herein de scribed, which may be understood from the annexed drawing and description thereof." The specification then describes the drawing, which shows a tall chimney on one side of the ordinary blast furnace, and connected with it by flues at the top and at the bottom; on the other side an oven or fire-place, with a flue to admit the air from the oven or fire-place to the twire; also a passage along the top of that flue for the atmospheric air to the twire; the top of the blast furnace was provided with a cover, to be removed when the furnace was charged :-and proceeds as follows: "And I do hereby declare that the blast furnace, air furnace, cupola, and oven, with the chimney or chimneys, may be built, erected, or made, of any height, shape, form, or size, that shall be found most suitable to the materials to be used or smelted, and be connected by flues in any way, and may be constructed of any material or ma terials which may be found best suited for the purpose. And I further declare, that I propose to use coal, coke, stone, coal culm, wood, charcoal, or any other kind of fuel or fuels, or combination of fuel, in any proportion or proportions, in the fire-place, oven, or air furnace, for producing the gas, flame, or heated air, and also to use all the materials before recited, in any proportion or proportions that may be found sufficient and best adapted to produce the main object required. I claim as my patent the use of the additional chimney or chimneys, and the application of rarefied air, gas, flame, or heated air, to, at, or near the wire or twires of the blast furnace, or cupola, to cause or assist the blast of atmospheric air. And I also claim, as part of my patent, the use of salt, or any other substance containing soda, to mix with the iron-stone, or ore, and other materials in the blast, cupola, or air furnace, to cause those materials to melt or fuse sooner, more easy, or with less blast and fuel. But I do not claim as my patent the use of salt in any part of the process of making bar, wrought, or manufactured iron, from pig, cast, or crude iron, but only claim the use of salt, or any other substance containing soda, in making pig, cast, or crude iron from iron-stone or ore.' In witness, &c. The object of the above invention would appear to be the obtaining, by means of the chimney and the hot air from the oven, such a draught as would render the ordinary blowing apparatus unnecessary. It was contended, in argument in the subsequent proceedings, that the above was in fact the application of hot air to a blast furnace, and that Neilson's patent would consequently be void, except as for the particular mode, or as an improvement on Botfield's. In the course of the argument, Lord Cottenham, L. C., remarked, "It appears to me, that Mr. B., though he certainly use hot air, uses it for the purpose of increasing the draught, not for any chemical purpose the hot air might have. It leads rather to the conclusion, that at that time the advantage of hot air was not known, at all events not known to him, or otherwise he would have specified it." Upon this state of facts, the question arises, whether the user of hot air in a blast furnace for such mechanical purpose would in law vitiate a subsequent patent for the invention of its use for a chemical purpose. See per Lord Denman, C. J., ante 140; also ante 156, n. c. and post 280, n. d. Devaux's Patent. Letters patent, 8th October 1836, to Charles Pierre Devaux, for "certain improvements in smelting iron-stone, or iron ore." Specification." The improvements relate to the placing or arranging of certain apparatus between the ordinary blowing machine and the furnace which contains the iron-stone or iron ore to be smelted, whereby the blast of atmospheric air caused by the ordinary blowing machinery is forced through and amongst the fuel in a fire enclosed in such superadded apparatus, and whereby the atmospheric air so forced supports combustion in such fire, becomes heated, and in some degree decomposed, and is thence constantly forced forward by the pressure of the condensed ar in the apparatus (carrying with it the gas and vapours evolved by the fuel in the fire) into, and becomes a heated and gaseous blast to the ordimary furnace containing the iron-stone, or stone to be smelted, great improvement will take place in the process of smelting iron-stone or iron ore, and fuel saved." The apparatus, is then described, and reference is made to Neilson's invention as "an apparatus for heating atmospheric air in its progress from the blowing machine to the furnace containing the iron ore; but in such apparatus the atmospheric air did not pass into and amongst the burning fuel contained in a closed fire-place similar to the above, but such atmospheric air was heated by its being driven or forced through vessels heated from without, the vapours and gas evolved by the fire by which such vessel is heated not passing into the furnace containing the ironstone;" it also refers to Botfield's patent, and declares, "I do not claim as new the application of heated air combined with gas or vapours evolved by a fire, unless the operation be performed by an apparatus constructed by forcing air through the fire which heats it; but I do hereby claim the constructing and using an apparatus of a like nature as that above described between the blowing machine and the furnace containing the iron ore or iron-stone to be smelted in such manner that the blast proceeding from the blowing machine shall pass into and amongst the ignited fuel, and support combustion in a closed fire-place, and from thence the heated and partly decomposed air from therein, by the pressure of the continued working of the blowing machine urged onwards (carrying with it the gas and vapours evolved by the ignited fuel) into the furnace containing the iron ore or iron-stone; by which means much saving in fuel, in addition to other advantages, will be obtained in the smelting of iron ore or iron-stone, such apparatus being so arranged as to admit of a man managing the fire during the time that condensed air is being forced through the fire-place, as above described." In witness, &c. The latter invention being subsequent to that of Neilson's, could not affect his right, but it is important, as showing the history of the invention, and was referred to in the proceedings on Crane's patent, post. It should also be observed, that as it is an essential feature of this invention, that all the air should be heated by actual contact with the fire, it would be deprived of all its oxygen, so that the chemical effect in the furnace of this air would be very different from the effect of air so heated on Neilson's plan. Three other inventions were referred to as applications of heated air. Sadler's, in 1798, for disengaging oxygen gas, and applying it to the best advantage. He remarks, that the first effect of bringing cold oxygen in contact with a combustible body at a high temperature, must be to reduce the intensity of combustion; and he proposes an arrangement for heating the oxygen, and applying it so heated. It refers to experiments in the laboratory, not to manufactures. Chapman's, in 1825, for consuming the smoke of steam boilers. He excludes all cold air from the furnace, and heats the admitted air by making it pass along the interior of the bars of the grate, which are cast hollow for the purpose. Stirling's patent, in 1817, for diminishing the consumption of fuel. His invention relates, firstly, to certain arrangements for heating and cooling liquids, airs, or gases, and other bodies, by abstraction of heat from one portion of such liquid, &c., and communicating it to another; and, secondly, to obtaining a new motive power. He does not propose to blow heated air into furnaces, but the air enters in the ordinary state of the atmosphere. None of these appear to have succeeded in practice. NEILSON & OTHERS v. THOMPSON & FORMAN. Cor. Sir L. Shadwell, V.C. Dec. 24, 1840. In Chancery. Bill filed 3d Dec., 1840. The bill stated the grant of the Bill. letters patent, the enrolment of the specification, the partnership of Neilson with certain persons; that the defendants, carrying on the business of iron masters at, &c., in the year 1839, adopted the use of the plaintiff's invention, and by and with the use of the same smelted large quantities of iron; the plaintiff's Bill. Affidavits. being willing to permit them to make a trial of the benefits of the said invention before they should be called upon to pay for the use thereof, allowed the defendants to try the said invention; that the said defendants did so accordingly, and having found the same to be advantageous and beneficial, continued the use thereof hitherto; that after the defendants had had a fair and sufficient trial of the said invention, the plaintiffs expected the defendants would make the plaintiffs the same payments for the use thereof, which plaintiffs have demanded and received from all other persons using the same, viz. one shilling per ton; that it was fully understood by plaintiffs that defendants would make such payments accordingly, and would take a license under seal from plaintiffs, upon the terms granted to other persons; that no license was in fact taken. That plaintiffs have called on defendants for an account of the iron smelted by the use of the said invention, that plaintiffs and defendants might arrange the sum payable, and have frequently requested the defendants to pay the one shilling per ton, but that defendants, under various pretences, have evaded complying with the said request, and have not paid any sum in respect of such use of plaintiffs' invention, and although plaintiffs have given notice to defendants to desist from using the said invention, they persist in using the same. The bill prayed an injunction to restrain the defendants from any further using or exercising of the said invention, or from smelting or causing to be smelted any iron whatever, by the use of, or on the principle of, the said invention, or any part thereof, or otherwise, in infringing the said patent, and from selling and disposing of any iron so smelted during the term thereof. There were affidavits by Mr. Neilson, verifying the statements in the bill (a); by Mr. Mushett, verifying certain documents, and as to the said invention being in use at defendants' furnace; by Mr. Blunt, the plaintiffs' solicitor, stating the preparation and granting of between fifty and sixty licenses by plaintiffs to iron masters, and the payment of one shilling per ton; also various infringements by parties in 1832, who submitted and took a license on proceedings being commenced against them; and among others the Dowlais Company, in 1836, began to use the invention, and an injunction having been obtained, agreed to take a license, and paid the license dues for all iron made up to June, 1839, but refused to pay the license dues since that period, and that an action was pending against them. (a) The affidavit did not state his belief at the time of swearing it, that he was the true and first inventor, or that the invention was new at the time of the granting the letters patent. This omission was urged as an argument against granting the injunction, but it was said in reply that this was not necessary in applications for an injunction upon notice; the doctrine of Lord Eldon, L.C., in Hill v. Thompson, ante 231, applying only to cases of application ex parte for an injunction. See Law and Practice, IND., tit. Affidavits, and post 279, n. b. |