In Chancery.

July 12.

bill.

letters patent might be made to accord with the privy seal bill as corrected. At the same time, however, the petition disclosed the fact, that the two first letters of the word "recovering" had actually been erased in the letters patent; but it was positively stated in affidavits, made in support of that petition, both by the patentee himself and by his agents, in whose custody alone the letters patent were stated to have been, that after diligent inquiry they were unable to discover when or by whom such erasure had been made.

Upon the last-mentioned petition coming on to be heard, Tinney, Dixon, and Corrie, appeared in support of it, and asked in the first instance, that the amendment might be made in the letters patent without resealing them, on the ground that the error was a mere clerical error, for which the patentee himself was in no way to blame; and that, unless it could be amended without resealing, the amendment would be useless, as that the patent would then take effect only from the date of the resealing.

Lord COTTENHAM, L. C.: You say, the error in this case is a mere clerical error; and so it is in one sense, but it is an error which goes to the very foundation of the party's title; and all the cases, cited the other day, of amendments of clerical errors in records, are cases of grants of property, or some interest in property, by the crown, in which the only parties concerned were the crown and the grantee; whereas, here, there are third parties to be considered. However, whether the crown has or has not the power of doing what you say it ought to do, is what we need not discuss, unless you can show me I The great seal have authority to do it. Now the great seal acts under the acts only under authority of the privy seal; and the instructions I receive from the authority of the privy seal the privy seal are, to reseal the letters patent with the alteration. [The Lord Chancellor here took up a privy seal bill relating to another patent, which he had directed to be sent for, for the purpose of illustration, and proceeded as follows:-] What I now hold in my hand is a privy seal bill, which was first brought to me on the 19th of January, 1841, and afterwards again on the 3rd of February, for the purpose of altering the letters patent. When this privy seal bill was first brought to me, pursuant to the statute of Hen. 8 (i), this recepi was endorsed upon it: "Received the 19th of January, 1841." That was the date of the original patent-for the statute does not authorize me to put the great seal to any patent except as of the day on which the privy seal bill is brought to me; then some error was discovered in the patent, and very shortly afterwards, namely, on the 3rd of February, in the same year, it was

(i) 27 Her. 8, c. 11. See Law and Practice, Tit. Statutes.

brought back, together with the altered privy seal bill, and a A.D. 1841. docket in these words-"To be resealed for the purpose of inserting the words," &c. [the words of the alteration]; and the recepi upon that is, "Received the 3rd of February, 1841, for the purpose of resealing the patent for the insertion of the words," &c. [Tinney: Will your lordship inform me, whether the date of the alteration and resealing would appear upon the face of the letters patent, for if it would not, the alteration would answer the purpose of the patentee, although accompanied by resealing, and the patentee would be willing to take

it in that way.] The date, of course, is not altered in the letters Letters patent patent; but there is the recepi on the privy seal bill, to show their date is not when the resealing took place. If, however, you are content to altered. have the amendment made in the ordinary form, I should like to know before we proceed further, upon what terms you are willing that the alteration should be made. There may be very good reasons why you should not have any indulgence, since I have not yet heard the other side. In the mean time let it be understood, that I shall certainly do nothing but what is usual, that is to say, I shall, at all events, only reseal the letters patent upon a privy seal bill being properly brought before me; and that I shall not even do that without taking care that it shall not prejudice other persons.

I may observe that I had some doubt before as to the mode Letters patent in which an alteration was to be made when the letters patent amended and having been had been actually enrolled. I have since, however, been fur- resealed, the enrolment may nished with the only instance of the kind which I am told be altered acexists, and it was effected in this way. An application had been cordingly. made to Lord Alvanley when he was Master of the Rolls, to alter the enrolment. He thought he could not do it, because it would make the enrolment vary from the letters patent; and afterwards, on communication with the Lord Chancellor, who thought the case was one in which an alteration ought to be made in the patent, the Master of the Rolls came into this court, and, under the authority of the Lord Chancellor, the patent having been altered was resealed, and then the Master of the Rolls made the enrolment correspond with the patent so altered.

The case then stood over, in order that the patentee might consider upon what terms he was willing that the alteration, if allowed, should be made. On the following day it was again July 2. spoken to, when—

The LORD CHANCELLOR said, that the only terms on which he would entertain the application to amend the patent at all were, that the patentee should abandon, and pay the costs of, all proceedings then pending, and undertake not to bring any other action for the infringement of his patent up to that time.

August 3.

Order.

Previous order discharged, and enrolment restored to its original state.

Jan. 19, 1844.

The amend

Tinney having on this day stated that his client declined to accede to the terms which had been suggested

Lord COTTENHAM, L. C.: That being the case, I decline to act on the application to amend the patent, and I have only to dispose of the appeal petition, and to restore the enrolment to its original state; for which purpose, as the document was in the custody of the Master of the Rolls, it will be necessary to make a joint order.

The order, after reciting that the Lord Chancellor had called to his assistance the Master of the Rolls upon the subject of his orders bearing date the 27th and 30th days of March, 1841, and that it appeared that Christopher Nickels, the patentee, had not procured the letters patent to be altered according to the privy seal bill as altered, was as follows:

"It is hereby ordered and directed, that the order made by his lordship the Master of the Rolls, dated the 30th day of March last, and endorsed on the roll on which the enrolment of the said privy seal bill is made, be discharged; and that the enrolment be restored to the state in which it was before such order was made, and that a copy of this order be endorsed on the said roll."

The parties having come to an arrangement about the costs, the Lord Chancellor and the Master of the Rolls made a joint ment made, and order (k), whereby the amendment prayed was made in the letters patent, and the letters patent resealed, and the enrolment made in conformity with such amendment.

letters patent

resealed.

(k) Order. The order, after reciting the circumstances of the above case, the preceding order and amendments, that the parties had entered into an arrangement whereby the costs had been satisfied, that the Lord Chancellor was of opinion the letters patent ought to be amended in case the enrolment in the custody of the Master of the Rolls were also amended, so as to be made conformable thereto, but that the Lord Chancellor did not think fit to make any order until he had called the Master of the Rolls to his assistance that such assistance had been called in, ordered-that the privy seal bill, which had been amended, should be submitted to the Lord Chancellor, in order that a new Recepi might be written thereon for his lordship's signature; and with the consent of the London Caoutchouc Company, and the counsel for the petitioner undertaking to bring no

action for any infringement before the resealing, the Lord Chancellor ordered that the letters patent should be amended by inserting the word 'covering' for 'recovering,' and that the letters patent should be then resealed; and on like consent and undertaking, the Lord Chancellor and Master of the Rolls ordered, that the enrolment should be amended by inserting the word 'covering' for 'recovering' in the enrolment, in conformity with her majesty's warrant, the queen's bill, the signet bill, and the privy seal bill, already so amended by the proper officers, and that the proper officer should attend the Master of the Rolls with the said enrolment, for the purpose of such amendment being made in his presence. And that a copy of the order should be endorsed on the roll on which the amendment is made.

THE QUEEN v. NEILSON.

Cor. Lord Lyndhurst, L. C.

In Chancery.
Nov. 9, 1842.

This was a petition to the Lord Chancellor to stay proceed- Proceedings ings in a writ of scire facias to repeal the letters patent of the on writ of scire defendant.

facias.

ties cannot have

The petition, having set forth the letters patent, bearing date The Petition. at Westminster, 11th of September, 1828, to J. B. Neilson, for Semble, the writ his invention of "an improved application of air to produce heat does not issue of scire facias in fires, forges, and furnaces, where bellows or other blowing as of course. apparatus are required," and the specification (a), stated the Semble, two parconveyance of certain interests in the patent to other parties, a writ of scire the granting of upwards of sixty licenses, in respect of which facias. considerable sums had been received, and the various legal proceedings to restrain infringements, and amongst others the four suits in the Court of Chancery, which had led to the trial of Neilson v. Harford, under a rule consolidating the four actions, in the Court of Exchequer, the judgment of that court in favour of the patent, and the perpetual injunction against the parties (6) in the four suits.

The petition further stated the grant of letters patent for Ireland and for Scotland, bearing date 1st of October, 1828, and that, about the time of the trial of the above proceedings in England, the petitioner discovered that a combination had for some time existed among the Scotch iron-masters to resist the said patent, and that an agreement (setting it out) had been entered into, whereby the parties bound themselves in a penalty of £1000 to institute, carry on, and adopt any proceedings, both judicial and extra-judicial, which should be recommended and concurred in by the majority of the subscribers thereto, to resist the enforcement of the rights under the said patent for Scotland. That the above agreement was signed by the partners of the Househill Company, against whom a verdict had been obtained; that a bill of exceptions had been tendered to the summing up of the learned judge, which had been decided in favour of the petitioner in the Court of Session, against which decision the Househill Company had appealed, and the appeal was then pending in the House of Lords. That in August, 1842, a writ of scire facias, tested of the 13th of June, to repeal the letters patent for England was issued, whereby the petitioner was sum

(a) See the specification and the proceedings to (b) See ante 373. which reference is made hereafter, ante 273-374.

In Chancery.

moned to appear in Chancery on the 2d of November, to show cause why the said letters patent should not be cancelled. That the above writ was not issued on behalf of any persons resident in England, but on behalf of the parties in Scotland who had entered into the above-mentioned agreement for contesting the patent. That the period of fourteen years, limited by the said letters patent, expired 11th of September, 1842, and all the privileges thereby secured then expired. That the writ, though tested the 13th of June, was not returnable until the 2d of November, that is, after the patent had expired. That the proceeding by scire facias is intended only to apply to the case of existing patents, and that the remedy it affords is only to direct the cancellation of letters patent which may be in exist ence at the time of the return of the writ, on the ground of irregularity in the original grant (c). That the said letters patent having expired before the return of the writ, the same was informal and irregular, and ought to be set aside, and that any proceedings upon the writ would be productive of great hardship to the petitioner, and that the parties who had sued out the writ could experience no injustice, being able to avail themselves of any ground of invalidity as an answer to the action.

The petition prayed that the writ might be set aside, and all proceedings thereon discontinued and stayed.

Sir W. Follett, S.G., Bethell, and Campbell, in support of the petition. This is an application on behalf of Mr. Neilson and his partners to be relieved from proceedings of scire facias instituted by persons in Scotland, against some of whom a verdict has been obtained upon the Scotch patent, to repeal the English patent, the validity of which has been so fully tried and esta blished, and which patent has now expired. The term granted by the letters patent for England expired the 11th of September; the fiat of the Attorney General was granted in August; the writ tested as of the preceding term was not returnable until the 2d November. The Attorney General in the exercise of his discretion might be right in granting his fiat, because at that time there might have been an application to extend the term of the letters patent, but such is not the fact, and the writ is returnable into this court at a time when the letters patent have ceased to exist. The party aggrieved has no other course than to apply to this court; if the writ goes on he will be called upon to litigate the question without any legal object. The writ of

(c) See form of the proviso in the letters patent as to avoiding the grant. Law & Practice, Pr. F., XIII.

In the course of the argument it would appear to have been conceded, that the proceedings on a writ of scire facias might go on after the expiration of the letters patent. There can be no doubt that

an action may be brought after the expiration of the letters patent for any infringement committed before their expiration. The case was also likened to that of a lease, of which the covenants might subsist after its expiration, and against which equity would grant relief if there had been fraud in the original grant. See post 672-3.