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by command of her majesty, in the queen's warrant and the queen's bill. It appeared also that the plaintiff, in consequence of an infringement of his patent, had filed a bill (in June, 1840) against the London Caoutchouc Company. And having on the 4th of August moved for an injunction against them, the motion was ordered to stand over, with liberty to the plaintiff to bring an action at law. The plaintiff accordingly commenced an action in Michaelmas Term following, and delivered the declaration on the 16th of December. The defendants obtained several orders for time to plead; and pending that time the plaintiff was, on the 12th of January, served with a copy of a writ of scire facias, issued at the instance of the company, for repealing the letters patent. In the recital of the title of the letters patent, as set forth in the writ of scire facias, the word “recovering” was substituted for the word “covering," which had been used by all parties in the previous proceedings. This led to an inquiry, the result of which was the discovery of the error in question. The petition was presented ex parte, but in consequence of the litigation that was pending between the patentee and the company, the Master of the Rolls gave the latter liberty to appear and to oppose the application.
Pemberton, Kindersley, and Hindmarch, were heard first, in opposition to the application. The Master of the Rolls has no jurisdiction to make the amendment required by the petition. The letters patent ought, at least, to be first amended, otherwise there would be a variance between them and the enrolment, and it would no longer be the enrolment of the letters patent. It does not appear that the queen's signet bill has been amended, although it contained the error, and such amendment must be made by the queen herself. Unless the prior documents were all amended, there was nothing by which the record could be amended. The queen's warrant and the queen's bill are the only documents that have been amended. And until the queen's signet bill and the privy seal bill, as well as the letters patent, are amended, there is no ground for amending the record. The Master of the Rolls has no authority to alter either the privy seal bill or the letters patent, at least without the sanction of the Lord Chancellor (a).
Tinney, Dixon, and Corrie, in support of the petition. The Master of the Rolls has jurisdiction to amend a mere clerical error in the enrolment. This is analogous to cases in which deeds, bills of exchange, and records at common law-as fines and recoveries—are accustomed to be amended to effect the intention of the parties; as also original writs out of Chancery. The enrolment is copied from the privy seal bill, not from the
letters patent, which are also copied from the privy seal bill; A.D. 1841. the queen having authorized the amendment to be made in the warrant and also in the queen's bill, from which the privy seal bill is copied, and the Solicitor General having given his consent to the amendment of the privy seal bill, the court has sufficient warrant to allow the privy seal bill to be amended, and to proceed to amend the enrolment. There is no occasion to have the letters patent first amended, or to apply to the Lord Chancellor for his concurrence in the amendment of the enrolment, inasmuch as the enrolment is made from the privy seal bill (6), and when amended might be given in evidence instead of the letters patent (c).
Lord LANGDALE, M. R.: I must take time to consider the Judgment. order which I shall make, if I should think it necessary for me to make any order. The petitioner in this case having petitioned her majesty for a grant of letters patent to secure to himself the exclusive use and enjoyment of a certain invention, and her majesty having been pleased to grant that petition, the petitioner adopted the usual proceedings for the purpose of obtaining the grant. In the course of the proceedings a clerical error was made by a clerk in one of the offices in which the proceedings were to take place, and that error not being discovered in sufficient time, found its way into the letters patent, which are in the possession of the party, and into that which is called the enrolment of the letters patent, which is in my custody as Master of the Rolls. The error consists in the substitution of the word “recovering" instead of the word “covering." After litigation had commenced between the petitioner and the persons who have appeared to oppose the prayer of the petition, the petitioner applied to me to have the error corrected in the privy seal bill and in the enrolment of the letters patent. Considering it to be perfectly clear, that the error was a mere slip, of which the petitioner was entirely innocent no doubt, I have considered it, and I do now consider it, to be my duty to assist in every way I legally can towards its amendment; and that in such a way as, in any event, may be in the least possible degree prejudicial to the party who is likely to suffer by it. Whether I can legally do this, is a matter, no doubt, of serious consideration; and if I can legally do it, in what mode and what particular way it can best be done. I have nothing to do with the moral principle upon which this application is opposed. The object, no doubt, is to take advantage of a slip, for the purpose of defeating any
to assist ind it, and i was entirel,
In Chancery. thing which may turn out to be the right of the party. I
have no observation to make on that; the party has a right to take that objection; the law allows him to do so; and the question therefore to be considered is, whether it is to prevail.
The objections are of this sort; they say, first of all, in the various proceedings which unfortunately are rendered necessary prior to the sealing of the letters patent, and prior to the enrolment, all has not been rightly done, so as to enable me to have something in a correct form and duly made correct, by which I am able to correct the record. Great learning and great ingenuity have been employed in that argument. If it were to prevail, I think it would be an extraordinary triumph of subtilty and technicality over common sense and justice. I cannot think it will ultimately prevail; and certainly it does not at this moment appear to me that it ought to prevail. The
other objection appears to me to be of a more serious nature. The letters pa. There can be no doubt that, whatever may be the form of tent and their
s, making out the letters patent, and of making out the record of be intended to the enrolment of the letters patent, it must be intended that correspond.
they should correspond. And I certainly am, on the present occasion, asked to make the record of such a form, and to introduce such an alteration in it, however small, by obliterating the two letters “re,” that it appears upon the evidence which is now before me, when the alteration shall be made, the record will not correspond with the letters patent; because it is stated on the evidence, that the letters patent contain “recovering" instead of covering.” Now, it is a most serious consideration that I have no right or authority whatever, even if I had the letters patent here, to introduce any alteration into them. I am at present strongly impressed with the notion that what is required cannot be done without the concurrence of the Lord Chancellor. I think the authority of the Lord Chancellor and of the Master of the Rolls, of both of them, required to do that which is now proposed to be done; that is at least my present impression, and it is my present impression so strongly, that I cannot think of acting in any way against it, without a communication with the Lord Chancellor, in order that I may know what his view on the subject may be. With regard to the document, the privy seal bill, no doubt it is the authority upon which the enrolment is made, but it is that privy seal bill coming from the great seal office. That privy seal bill in coming from the great seal office has been acted on; and it may be a question, certainly, whether it ought not to go back there, and whether the alteration ought not to be taken notice of there. I say only a question, because I cannot concur quite in the argument that is used—that it is necessary for me to see that every anterior step has been strictly and duly followed. What I have got here may be quite sufficient; I have got the
queen's sign manual, I have got the queen's bill, and I have A.D. 1841. got the consent of the queen's officer, the Solicitor General, to make this alteration. If, indeed, every step which was prescribed to be taken in this case were a step to be taken for the security of the crown, to prevent improvident grants of this sort, it might then be a very serious consideration, whether we ought not to have strictly the authority of every officer through whose office it was to pass. But, is that so? I have once or The various steps twice called it to the attention of the counsel here, on what m principle it is those several steps were required. The principle, than the securiI am afraid, is not for the purpose of giving greater security to y or the crown alone, but for the purpose of creating revenue, which revenue has been satisfied with what has been already done. I think it is a subject of consideration, how that is to be dealt with; if I think it right to make any order at all, I shall make such an order as seems to me right, and I shall communicate that to the parties. But I shall not make any order till I have had means of communicating with the Lord Chancellor, in order that I may know what his view is on that part of the question, which appears to me a subject, at least, of very considerable doubt.
His lordship made the following orders: “It is ordered, that Orders. the proper officer from the office of the Lord Privy Seal be at March 27, liberty to attend the officer in whose custody the said privy seal bill now is, and to amend the said privy seal bill, if he Amendment of shall think fit, by striking out the word recovering in the the privy seal description of the said invention, and inserting the word
covering in lieu thereof. And it is ordered, that the rest of the prayer of the said petition do stand over.”
The privy seal bill having been amended in the manner March 30. pointed out in the last-mentioned order, and produced to his lordship, the following order was made :—“ It is ordered, that Amendment of the enrolment made from the said privy seal bill be amended the enrolment. by striking out the word recovering' in the ninth line of the said enrolment, and inserting the word covering' in lieu thereof, so as to make the same conformable with the said privy seal bill as amended as aforesaid ; and that the proper officer do attend his lordship with the said enrolment, for the purpose of such amendment being made in his presence. And it is ordered, that a copy of this order be endorsed on the roll on which the said enrolment is made.”
Re NICKELS' PATENT.
Cor. Lord Cottenham, L. C. May 31, 1841. An enrolment This was an appeal by the London Caoutchouc Company (a) will not be per- to the Lord Chancellor from the above orders of the Master of mitted to differ from the letters the Rolls. The petition, after setting out the facts of the preThe privy seal
, ceding case, stated further the litigation which had arisen bill no autho- between the parties, namely, that Mr. Nickels had filed a bill drabutall the against the Company in June, 1840, to restrain an alleged inT'he date of an fringement of his patent of “improvements in machinery for not altered.
atent covering fibres,” &c.; that a copy of the letters patent, fur
nished by the solicitor of the plaintiff, described the invention as “improvements in machinery for covering fibres,” &c.; that the motion stood over until an action should be brought to try the validity of the said patent; that the directors of the said company were wholly ignorant of any such patent having been granted to the said C. Nickels, and on directing a search at the proper office in Chancery for the said letters patent, they discovered that the alleged letters patent were for “ improvements in machinery for recovering fibres,” &c., and that no letters patent had ever been granted to the said C. Nickels for “covering fibres;" that the privy seal bill of the said letters patent contains the word “recovering," and that they believe the said letters patent, unless the same have been altered, to contain the word “recovering;” that the specification of the said letters patent described an invention for “ covering fibres," &c., and no specification had been enrolled of an invention of “improvements in machinery for recovering fibres," &c. That a scire facias was sued out in November, 1841, to repeal the said letters patent, as having become void. That an action was brought on the above letters patent as a patent for covering, and was standing for trial. That it is the practice to enter. the titles of all letters patent in a book at the great seal office, where the public make search, and in that book the patent is entered as for “recovering ;” and from these entries, the publication in various books of the letters patent which have been granted, takes place. That notice had been served on the agent of the said C. Nickels to produce the said letters patent before the Master of the Rolls, but they were not produced, and that on inquiry of the various officers it had been ascertained that
(a) The petition purported to have the common seal of the Company attached to it, and Tinney on behalf of the respondent objected, that the petition purported to be presented by a cor. poration, but the Company had no common seal,
and the petition was not verified; but the Lord Chancellor overruled the objection, expressing his opinion that the petition was within the meaning of the act of parliament.