illustrate this, the use of the stocking-loom, &c., has been mentioned. I am not sure that the king could not have granted a patent to the person who introduced the stocking-loom into Scotland. The cases, however, are different, for the stocking-loom was a public manufactory in England, to which every one had access; whereas they who made oil of vitriol in lead vessels at Bridgenorth or Bewdley, wrought privately, and work privately still.

Lord MONBODDO: The invention of Messrs. Roebuck and Company has proved useful it has been found by this court that it is sufficiently published. I do not see the case of the Glasgow Merchants in so favourable a light, they had no certain knowledge of Roebuck's method; they sent one of their servants to corrupt the servants of Roebuck, and to discover the secret. Yet we must determine on grounds of law, not of favour. The first objection is, that there is no new discovery. Ans. Call it a discovery, or call it an improvement, it is so material as to entitle Messrs. Roebuck and Company to a reward. The second objection is, that the patentees had used this method for fourteen years before the date of the patent. Ans. 1st, In point of fact, it is long since they began to try it; but they did not till of late bring their trials to perfection: 2d, there was no occasion for applying to obtain a patent till there was a danger of discovery. The third objection is, that the discovery was not made by Roebuck and Company. I do not see any evidence of the art having been practised in Scotland. The charger's pretensions for discovery are ridiculous. It is acknowledged that there is no proof as to Steel. With respect to England, that the art was practised in England before the date of the patent, I am satisfied. It is probable that the discovery came from Roebuck himself by the treachery of one Fauconbridge, a discarded servant. (This is probable conjecture. The company gave Fauconbridge 10s. a-week, and, on his proving idle and drunkensome, dismissed him. It is likely that he told all he knew to the English artists, and that though he might not be able to explain the whole process, yet could tell enough to set chemists on the right scent; it was a poor saving to the company to suffer so dangerous a man as Fauconbridge to go at large, because he was not worth his wages.) However, I lay not stress on the circumstance of the discovery having come from Roebuck and Company. The question then comes to this, will not Roebuck's patent be good, as he first brought the art into Scotland? Even in that view, as the introductor of this art, he is a great benefactor to the nation. The art was not publicly practised in England; its being secretly practised there will not affect Roebuck's patent. But I will suppose that the art was publicly practised in England; still I think it the same thing as if Roebuck had introduced it into Scotland from beyond seas. In the sense of law, England, with respect to us, is beyond seas. (There is a decision of the court, finding the contrary in express terms.) The Article of Union touches not this case. This is not a matter of trade, though it may be useful in trade. There is no communication of the law of patents between the two nations.

Lord COALSTON: I am clear that there is no

relevancy on the first and second objections. My sole difficulty lies in the third objection, that this art had been practised in England and elsewhere before the date of the patent. There is no proof either as to the Stirlings or as to Steel. It is not sufficient that others may have known it, if others did not use it. The patent will be good; so says the act of king James I., which the parties admit to be the law of Britain; but the evidence of its having been practised in England, is sufficient to void the patent. I admit that its being practised in foreign parts would not be a good objection. It is proved to have been practised at Bridgenorth and Bewdley; this I think is a good objection in the words of the Articles of Union. Upon this clause of the Articles of Union, the statute of James I. is admitted to be the law of Britain. At the time of the Union, there was scarcely one manufacture properly practised in Scotland. Most of the manufactures now known were then known in England. Was it agreeable to the statute of monopolies, or to the Articles of Union, that any subject of Scotland could apply for a patent respecting any manufacture known in England but not in Scotland? This cause falls to be determined upon the Articles of Union. If there was any doubt as to this, the arguments a incommodo are unanswerable. As to what is said that this art is kept secret in England, the trut is, that manufactures, especially in the chemica way, are kept secret as much as possible, even after a patent.

Lord JUSTICE CLERK: I would repel the firs and second objections; but the third is irresistible As to what is said, that this business is kept a secret, it is notoriously known, that many of the most valuable manufactures in England, whether with patent or without, are conducted with all imaginable secrecy. The words publicum exerci tium, though in the patent, are not in the statute. I should be sorry that we adopted this rule of decision, holding that a patent would be good against establishing manufactures in Scotland, which are practised in England; this destroys the evidence from the king's patent, that Roebuck was the original inventor. The law of monopolies is general, with the exception of the first inventor.

Lord GARDENSTON: In the case of Clark v Laycock, decided in the King's Bench, Clark had a patent for both kingdoms; his patent was set aside upon the evidence of Scots witnesses, that the art had been practised in Scotland before the date of Clark's patent.

Lord MONBODDO: I regard not arguments ab incommodo; we must judge according to law, not conveniency. If there are such evil consequences from patents, why, let the king grant none such, or let the legislature regulate them. (He mis understood me. I endeavoured to show from the consequences that that could not be law which necessarily produced such effects.)

On the 4th of March, 1774, the Lords found it proved, "That the method of making oil of vitriol in vessels of lead, was practised in England before the date of Messrs. Roebuck and Company's patent; and, therefore, found the letters orderly proceeded." Act.-J. M'LAURIN, A. LOCKHART. Alt.-A. CROSBIE, H. DUNDAS. Reporter, Jus TICH CLERK. Diss. KAIMES, PITFOUR, MONBORDO

Brown v. Annandale and Son.
The Act of Union-Scotland-5 Anne, c. 8.

The following are the articles referred to in the principal case:

Article VI.-"That all parts of the United Kingdom for ever, from and after the union, shall have the same allowances, encouragements, and drawbacks, and be under the same prohibitions, restrictions, and regulations of trade, and liable to the same customs and duties on import and export; and that the allowances, encouragements, and drawbacks, prohibitions, restrictions, and regulations of trade, and the customs and duties on import and export, settled in England when the union commences, shall, from and after the union, take place throughout the whole United Kingdom; excepting and reserving the duties upon export and import of such particular commodities, from which any persons, the subjects of either kingdom, are specially liberated and exempted by their private rights, which after the union are to remain safe and entire to them in all respects, as before the same. And that, from and after the union, no Scots cattle carried into England shall be liable to any other duties either on the public or private accounts, than those duties to which the cattle of England are or shall be liable within the said kingdom. And seeing by the laws of England, there are rewards granted upon the exportation of certain kinds of grain, wherein oats grinded or ungrinded are not expressed; that from and after the union, when oats shall be sold at fifteen shillings sterling per quarter, or under, there shall be paid two shillings and sixpence sterling for every quarter of the oatmeal exported in the terms of the law, whereby, and so long as rewards are granted for exportation of other grains, and that the beer of Scotland have the same rewards as barley: and in respect the importation of victual into Scotland, from any place beyond sea, would prove a discouragement to tillage, therefore that the prohibition as now in force by the law of Scotland against importation of victuals from Ireland, or any other place beyond sea into Scotland, do, after the union, remain in the same force as now it is, until more proper and effectual ways be provided by the parliament of Great Britain for discouraging the importation of the said victuals from beyond the sea."

Article XVIII.-"That the laws concerning regulation of trade, customs, and such excises to which Scotland is by virtue of this treaty to be liable, be the same in Scotland, from and after the union, as in England; and that all other laws in use within the kingdom of Scotland, do, after the union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to, or inconsistent with, this treaty), but alterable by the parliament of Great Britain; with this difference betwixt the laws concerning public right, policy and civil government, and those which concern private right, that the laws which concern public right, policy and civil government, may be made the same throughout the whole United King

dom; but that no alteration be made in laws which concern private right, except for evident utility of the subjects within Scotland."

Article XXIV.-" That from and after the union, there be one great seal for the United Kingdom of Great Britain, which shall be different from the great seal now used in either kingdom; and that the quartering the arms, and the rank and precedency of the lyon king at arms of the kingdom of Scotland, as may best suit the

union, be left to her Majesty; and that in the meantime, the great seal of England be used as the great seal of the United Kingdom; and that the great seal of the United Kingdom be used for sealing writs to elect and summon the parliament of Great Britain, and for sealing all treaties with foreign princes and states, and all public acts, instruments, and orders of state, which concern the whole United Kingdom, and in all other matters relating to England, as the great seal of England is now used; and that a seal of Scotland after the union be always kept and made use of in all things relating to private rights or grants, which have usually passed the great seal of Scotland, and which only concerned offices, grants, commissions, and private rights, within that kingdom; and that, until such seal shall be appointed by her Majesty, the present great seal of Scotland shall be used for such purposes; and that the privy seal, signet casset, signet of the Justiciary Court, quarter seal, and seals of court now used in Scotland, be continued; but that the said seals be altered and adapted to the state of the union, as her Majesty shall think fit; and the said seals, and all of them, and the keepers of them, shall be subject to such regulations as the parliament of Great Britain shall hereafter make; and that the crown, sceptre, and sword of state, the records of parliament, and all other records, rolls, and registers whatsoever, both public and private, general and particular, and warrants thereof, continue to be kept as they are within that part of the United Kingdom now called Scotland: and that they shall so remain in all time coming, notwithstanding the union."

Article XXV.-" That all laws and statutes in either kingdom, so far as they are contrary to, or inconsistent with, the terms of these articles, or any of them, shall, from and after the union, cease and become void, and shall be so declared to be by the respective parliaments of the said kingdoms."

Act of Union. Ireland. 40 G. 3, c. 67.-The same questions which arose in the principal case in reference to the Act of Union for Scotland may also arise under the 6th article of the Act of Union for Ireland, which enacts that it be the 6th article of union, that his Majesty's subjects in Great Britain and Ireland shall, from and after the 1st day of January, 1801, be entitled to the same privi.. leges, and be on the same footing, as to encouragements and bounties on the like articles, being the growth, produce, or manufacture of either country, respectively, and generally in respect of trade and navigation in all ports and places in the United Kingdom and its dependencies: and that in all treaties made by his Majesty, his heirs and successors, with any foreign power, his Majesty's subjects of Ireland shall have the same privileges, and be on the same footing as his Majesty's subjects of Great Britain," &c. &c. The article then goes on to declare, that prohibitions and bounties on the export of produce or manufactures recipro cally shall cease, and what produce or manufacture of either country shall be imported duty free, and to provide as to reciprocal countervailing duties and drawbacks on produce or manufactures of importation, as to exports through either country of home productions, and as to the duties on the import of foreign or colonial goods into either country. The following section also is important:- "And be it enacted, that the great seal of Ireland may, if his Majesty shall so think fit, after the union, be used in like manner as before the union, except where it is otherwise provided by the foregoing articles, within that part of the United

Kingdom called Ireland; and that his Majesty may, so long as he shall think fit, continue the privy council of Ireland to be his privy council for that part of the United Kingdom called Ireland.

Observations.-The confirmation by the House of Lords of the case of Roebuck v. Stirling (ante 45), decided in 1774, which, strange to say, appears entirely to have escaped the attention of the profession until the case of Brown v. Annandale, in 1841, has established a doctrine not only at variance with the uniform course of practice, but with the almost unanimous opinion of the profession. See per Sir F. Pollock, ante 444. But the consequences of this decision, and the intimations thrown out in the course of the argument, present many important considerations in reference to the law and practice of letters patent for inventions.

Their lordships have intimated that their judgments would have been the same had the case occurred now for the first time. Under these circumstances, it is important to point out the grounds which are relied upon, and it is somewhat remarkable that their lordships would appear to rely on different and independent grounds.

Lord Lyndhurst would appear to rest his judgment on the effect of the statute of James, in restraining generally the prerogative. That the common law prerogative of the crown, as to grants of this nature, was thereby limited and restrained absolutely and unconditionally, without reference to the place in which such grants were to be exercised; and that, consequently, the crown cannot now grant exclusive privileges by way of letters patent for any part of its dominions, unless the subject-matter of such grant be new in every part of the realm; that none of the colonies or possessions abroad are foreign parts from which an invention may be introduced into England, and become the subject of letters patent. The learned lord also rests his judgment on the inconvenience of a contrary decision, and suggests whether all letters patent granted with a proviso less restrictive in extent than is warranted by such a construction of the statute, are not void or voidable. Ante 447, 448, and 449.

Lord Brougham would appear to rest his judgment on the terms of the petition, in which the petitioner represents the invention to be new intra he regna, and that, consequently, the crown had been deceived by a false suggestion, which of necessity would vitiate the grant. Ante 443.

Lord Campbell appears to rest his judgment on the effect of the Act of Union. Ante 449.

It may be, as suggested by Lord Lyndhurst, extremely inconvenient, under the present facilities of intercourse, that an invention, having full publicity in one part of the United Kingdom, should become the subject-matter of a patent in some other part; but if policy dictates such a doctrine, it surely ought not to extend to the colonies and foreign possessions; and the intimation of that

learned lord as to the effect of a publication in any part of the realm, and the too limited form of the proviso, ought to lead to some legislative enact ment. It may be doubted how far any proviso is material, and whether it may not be rejected as surplusage, but then there is the further question whether the letters patent having been granted on the representation or suggestion of the invention being new in a part of the realm, are not granted on an insufficient consideration.

It has been suggested above (ante 443, n. f.), that the 6th article of the Act of Union, when it speaks of prohibitions, restrictions, and regula tions of trade, relates to such matters as are the subject of the customs, excise, and navigation laws, and not to the exclusive privileges granted by letters patent in respect of the working of manufactures which may themselves be the subject of such laws. The questions raised in the principal case under the Act of Union for Scotland, may also arise under the Act of Union for Ireland. The effect of the Acts of Union on the printing patents has been considered in several cases, and particularly by Lord Eldon, L. C. See ante 48, n. It has been said that the prerogative of the crown, as to the printing patents, was not affected by the Statute of Monopolies; but the terms of the Act of Union would, on the authority of Lord Campbell, establish a community of rights between the three countries. Lord Eldon, L. C., however, after reviewing several preceding cases of a similar kind, held that the Act of Union gave no authority to send Bibles printed in Scotland for sale to England, or vice versa, there being distinct patents for printing Bibles in the two coun tries. See ante 48, n.; and 6 Ves. Jun. 709.

It being however now established law, that the prior public use and exercise of an invention in one part of the United Kingdom will vitiate subsequent letters patent for any other part, it be comes important to consider the extent to which this principle is to be applied. It should be observed, that neither in Roebuck's nor in Brown's case was the grantee of the letters patent the true and first inventor in England; and it is apprehended that the above decision would not be held to apply to a case in which the true and first inventor in one part of the realm was the grantee of the let ters patent in the other part: otherwise, unless the letters patent in England, Ireland, and Scotland, be sealed as of the same day, there will be a prior publication in law in one or more of the countries; for the specification which relates back to the date of the letters patent is a publication; though it may be doubted how far such publication is evidence of a public use and exercise. See in Cornish v. Keene, post 519.

It is obvious, that so long as the present practice of granting letters patent continues, very consider able intervals must in cases of opposition clapse between the sealing of the different patents; and that the patentee has no control over such delays.