the said letters patent had not been altered by any competent A.D. 1841. authority. The petition prayed that the two orders of the Master of the Rolls might be rescinded and set aside, and all the costs of the several petitions might be paid by the said C. Nickels.

Wigram and Hindmarch appeared in support of the appeal petition. The first order is erroneous, in allowing the privy seal bill, which was in the nature of an original writ, to be altered without being resealed, the rule being, that after a writ has once been executed, and its authority exhausted, it could not be altered without being resealed; and that when resealed it took effect, in its altered form, from the date of such resealing. [Lord Cottenham, L. C.: No question of that kind can arise upon this order, because all it does is, to allow access to the document for the purpose of making a certain alteration.] As to the second order, although doubtless not so intended by the learned judge by whom it was pronounced, it amounts to nothing less than the falsification of a record, inasmuch as the enrolment is, in contemplation of law, a copy of the letters patent and not of the privy seal bill, although in practice it is generally made out from the latter document. If the letters patent require amendment, the proper and regular course is to make an application to the Attorney or Solicitor General under the provisions of the statute (b), by which, however, it is expressly provided that the alteration should be made without prejudice to proceedings pending at the time; whereas the effect of the order in question would be, to make the Caoutchouc Company wrongdoers by relation, for the enrolment would now represent that the patentee had all along been entitled to a patent for machinery for "covering" fibrous substances; therefore, by the aid of the statute 13 Eliz. c. 6., which dispenses with the production of the letters patent, and makes the enrolment evidence of their contents, the patentee would be enabled, on the trial of the action then pending, to give evidence of a patent which, it was admitted, had never in fact passed the great seal.

Tinney, Dixon, and Corrie, for the patentee. It must be conceded that such would be the effect of the order in question; but a patentee of an invention is to be regarded as, in some sort, a purchaser for value (c). It is an act of justice, and not merely of grace and favour, on the part of the crown to relieve him from the consequences of a defect in his title, occasioned by the default of one of its own officers. An amendment, the only object of which was to make the record of a

(b) 5 & 6 W. 4, c. 83, s. 1. See the section ante 250, Law & Practice, Tit. Statutes, but query, whether that is applicable to clerical errors or

errors of mistake, which were always amendable at common law.

(c) Citing Williams v. Williams, 3 Mer. 157.

In Chancery. grant correctly represent what the grant was originally intended to contain, stands on a totally different footing from alterations suggested by an afterthought of the patentee; and it was to cases of the latter description only that the statute 5 & 6 W. 4, c. 83, was intended to apply, the other class of cases having always been remediable by an exercise of the common law prerogative of the crown, as was evident from a number of cases which the Master of the Rolls had found by a search among the Records in the Rolls' Chapel, and in which it appeared that verbal inaccuracies in the records of grants from the crown had been amended by former Masters of the Rolls, a memorandum to that effect being in each case annexed to, or written upon, the margin of the roll (d). [Lord Cottenham, L.C.: Those cases prove nothing to the present purpose: because, for any thing that appears, the letters patent may, in all of them, have been altered first. There is a power, or should be a power, to alter the letters patent; and when that has been done, there must be a power to alter the enrolment; but the thing to be shown is, that the enrolment has ever been altered without a previous alteration of the letters patent (e).]

June 5, 1841.

On a subsequent day, Lord COTTENHAM, L. C.: I have desired this petition might be put into the paper, not for the purpose of finally disposing of it, but only for the purpose of informing the parties of the view I take of the case, in order that the patentee may have an opportunity, if he should be so advised, of taking some other course with a view to protect himself against the consequences of the mistake which has occurred. That there was a mistake is evident. It is quite clear that the application for the patent properly described what the patentee wanted, namely a patent for covering fibrous substances, and that the mistake arose in the Secretary of State's office for the Home Department, where, in copying, the letters "re" were prefixed to the word "covering," so that, from that period down to the time when the great seal was affixed to the patent, all the documents described the patent as a patent for "recovering" fibrous substances, instead of for "covering" fibrous substances. The patent having been granted with that word in it, the enrolment contained that word also. At a certain time, which is not very material for the present purpose, this error was discovered. An action having been brought by the patentee against a person alleged to have infringed his patent, it was discovered that the patent was not as the patentee intended, for "covering," but for "recovering;" and no doubt, after having been at the expense of procuring the patent, and after

(d) See these cases, ante 647, n. l.

(e) It will be found on reference to the cases of amendment just referred to, that the amend

ment of the enrolment was to make it correspond with the privy seal bill and the letters patent.

having disclosed to the public the nature of his alleged disco- A.D. 1841. very, and after having thought himself secure in the enjoyment of the patent for some considerable length of time, it was a very great hardship on him to find, that, owing to an error made in one of the public offices, he should not be in a situation to maintain his action against the party whom he alleges to have infringed his patent.

On the other hand, it must be recollected, that the only evidence of the patent, accessible to the public, is the docquet book, kept at the Patent Office, and the enrolment, both of which contained the word "recovering;" and if, with a knowledge of nothing else, a party had proceeded to carry on business in a mode which would be no infringement of a patent for "recovering," but might be an infringement of a patent for "covering," it would be very hard if he were to be liable to an action for so doing, there being no public evidence of the patent which he is said to have infringed. There is, or may be, hardship, therefore, on both sides.

The patentee discovering that there was this error in his patent, takes the usual course for correcting that error; he applies to the Secretary of State for the Home Department, and procures the queen's bill to be amended by introducing the word "covering," instead of "recovering." A corresponding amendment is then made in the signet bill, and the privy seal bill is amended from that, with the memorandum of the proper officer of the Privy Seal office, that it was done in consequence of the amendments in the previous documents. Now, the privy The privy seal seal bill is the authority under which the holder of the great bill an autho rity to the great seal puts the great seal to the patent. It is no other authority, seal only. and is issued for no other purpose whatever. It is of no authority to any other person, and becomes the authenticated mandate from the crown to deal with the great seal in a particular way. In this instance the privy seal bill has been amended; the object, and the only object, of such amendment being to give new instructions to the holder of the great seal, authorizing him to amend the letters patent, according to the memorandum found on the privy seal bill. The party obtaining that amendment, however, did not think proper to use it for this purpose, but passing by the great seal altogether, without any recepi from the Lord Chancellor, without any communication with the great seal, without any authority, he thought proper to apply at the Rolls, not for the purpose of altering the patent, over which the Master of the Rolls had no jurisdiction whatever, but for the purpose of altering the enrolment.

In the first place, that amended privy seal bill gave no authority to the Master of the Rolls to act upon it at all. It is not directed to the Master of the Rolls, it is directed to the Lord Chancellor, and it authorized the Lord Chancellor to deal with

In Chancery.

the patent only for the purpose of altering it according to the alterations in the privy seal; and so the Master of the Rolls considered the case when it was before him, at that time to which this judgment I have now in my hand applies, because he so described it. He says (f), "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 to be done, cannot be legally and effectually 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 of the subject may be." Before that he says (g), "The other objection appears to me to be of a more serious nature. There can be no doubt that, whatever may be the form of making out the letters patent and of making out the record of the enrolment of the letters patent, it must be intended that they should correspond. And I am certainly, on the present occasion, asked to make the record of such a form and to introduce such alteration in it, however small, by obliterating the two letters 're,' that, 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 The enrolment contain recovering' instead of 'covering."" Now, that is the cannot be per- view, then taken by the Master of the Rolls, and precisely the from the letters view I took myself of this case when first I heard it opened, and which I still continue to entertain, that by no possibility can it be permitted that the enrolment should differ from the letters patent. If there were any doubt upon that point on other grounds, it would be removed by a clause in the statute of Elizabeth (h), which enables parties, by producing the enrolment, to dispense with the necessity of producing the letters patent, that provision resting simply on the assumption, that the enrolment correctly represents what is contained in the letters patent.

mitted to differ

patent.

The title of the party derived

from the letters

The right, the title of the party, derived from the crown, rests on the authority of the letters patent, and the letters patent, and the patent only, and the enrolment is only permitted to be used for the purpose of showing what that grant was, or rather, as the statute of Elizabeth recites, for the purpose of preventing the danger of attempts being made to alter the letters patent,

enrolment a

mode of proving it.

(f) See ante 654.

(g) See ante 654.

(h) 13 El. c. 6. See Law & Practice, Tit. Sta

tutes.

which, being in possession of the party, were more likely to A. D. 1841. be attempted to be altered than could possibly be the case in the enrolment.

Now, what has been done? The party passing by the great seal, refusing to do that, or abstaining from doing that for which alone the alteration was made in the other documents, instead of applying to the great seal, to consider what under the circumstances might be done by way of relieving him from the difficulty he has got into with respect to his patent, goes at once to the Master of the Rolls, and obtains an order to alter the enrolment. The enrolment, therefore, now represents that a patent was granted as of the date at which the patent was originally granted for covering fibrous substances, whereas it is a fact known to both parties, and not disguised by the patentee, that it is a patent for "recovering," and that for the purpose, he describes his object to be, to give in evidence this enrolment as containing the grant of the crown.

Now I have communicated with the Master of the Rolls An enrolment since the case was argued, and the Master of the Rolls entirely mitted to differ cannot be perconcurs with me in the opinion, as he expressed himself when from the letters he delivered the judgment to which I have referred, that what- patent. ever may be done in this case, nothing can be permitted to remain which will enable the party to produce an enrolment differing from the letters patent. The hardship of the case, therefore, is obvious, and it will be my duty, as far as I can, consistently with the rules which are laid down to regulate the conduct of the holder of the great seal in matters of this nature, to relieve the party, provided I can do it consistently, and without injury to others. It is for the purpose, therefore, of giving the patentee an opportunity of considering what course he may think proper to adopt, that I have mentioned the case this morning. What I propose therefore to do is, not to permit the enrolment to represent a patent that does not exist, but before I make any order for that purpose (perhaps I may be able to dispense with that necessity altogether), is to give the patentee an opportunity of following the regular course in cases of this kind, namely, of asking the great seal to do what the great seal may under the circumstances feel itself justified in doing for the purpose of correcting that which is obviously an error in the terms in which the patent was granted. What may be the result of that application, I do not at all anticipate; but the patentee may be assured, that he will in no event be permitted to avail himself of, or to give evidence of what the patent contains, by an enrolment which does not represent what the letters patent contain.

The appeal petition accordingly stood over, and the patentee Petition by presented a petition to the Lord Chancellor, praying that the C. Nickels.