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course.

In Chancery. : new (k). I never knew a scire facias except in the case of a

patent for an invention. The only case which I recollect of any thing like two grants having been issued, occurred, not in this country, but in the colony of New South Wales. The Attorney General of that colony had refused to permit a scire facias to

issue, for the very purpose of trying, whether land granted by a The writ of second grant had not been granted before. Upon a case which cire facias does came afterwards before my learned friend the Solicitor General not issue as of

and myself, it appeared that the late law officers of the crown had advised that the Attorney General ought to allow the scire facias to issue, from which I presume it was considered that the subject had not a right mero motu to have a scire facias.

Lord LYNDHURST, L.C.: It strikes me at present that the court has power to stay proceedings, in analogy to the course of proceeding in the Court of Queen's Bench, where the action is vexatious. Though the right be ex debito justitiæ, the court may stay proceedings. I consider I have authority to stay the proceedings if the facts warrant it.

Sir F. Pollock, A.G.: All courts exercise the authority of staying proceedings until security is given for costs in certain cases, or where another action is pending for the same cause of action, or where a party will not consent to do what is just or to do what is right respecting issuing a commission for the examination of witnesses. I want to use those instances to show what are the grounds upon which the court will interfere. If an Attorney General were to permit a scire facias to issue without taking sufficient security, or if, after it had issued, the bail or security had failed, so that the party was without security, there can be no doubt of the propriety and authority of this court interfering to stay further proceedings until proper security be given.

Lord LYNDHURST, L. C.: There might have been very good grounds for issuing the scire facias, but these reasons may have been at an end from circumstances. There might be no ground for continuing it. It is not at all a question interfering with the authority or jurisdiction of the Attorney General, because there may be an altered state of circumstances. The writ was applied for before the expiration of the time. There is nothing in the fact itself of the letters patent having expired because an action may be pending. [Sir F. Pollock, A. G.: It is quite clear an action may be brought against any person who prior to the expiration of the patent, had, in point of fact, used the invention or pirated it.] But there is no suggestion of any such

(k) How is the question of the identity of the inventions, and consequent want of novelty of the second patent, to be decided, so as to let in this ground for issuing the writ? Both patents might

be equally invalid for want of novelty. According to the theory of this subject (4 Inst. 88, & ankt 667, n. d) the writ must be presumed to be issued by the crown.

action. It is not denied that the application is made on behalf A. D. 1842. of the Scotch iron-masters. The parties to the suits in this court do not complain; they acquiesce; they have had an opportunity of trying the question very deliberately. Why should the scire facias be continued in England with reference to those parties who have no interest in the patent in England ? If the proceedings had been to repeal the Scotch patent, there being a case depending in Scotland, and an application by these parties who are interested to repeal the Scotch patent, I cannot say, if the patent had been repealed, that the court of Scotland could not take notice of that cancellation so as to affect the pending case, notwithstanding a judgment in the House of Lords : it would be a new state of things. It does not appear that there has been any infringement in England, except the infringements which are the subjects of the suits here, and the parties to them do not complain. It is not suggested that there has been any infringement, and why should the party be put to the expense of trying the validity of the English patent, the term having expired? If the patent were an existing patent there may be an infringement, or parties may be deterred from using it. With reference to the case pending in the House of Lords, and the other suits still pending in the Court of Session, they should have obtained a scire facias to repeal the Scotch patent. The repeal of the English patent would only be an argument. [Sir F. Pollock, A. G.: Every person in the realm is interested in Two parties the continuance of the letters patent. The English are inter- cannot have a

scire facias. ested in the Scotch patent, and the Scotch in the English patent. After one party has sued out a scire facias, another could not do it.] If the House of Lords should decide against the validity of the patent, there may be some grounds for the application. Let this stand over until that decision.

Order accordingly.,

APPEAL FROM THE COURT OF SESSION.

The Househill COAL AND IRON COMPANY (Appellants).

JAMES B. NeilsON AND OTHERS (Respondents).

[In the House of Lords, Feb. 20, 21, 27 & 28, A.D. 1843.]

This was an appeal from a judgment of the Second Division of the Court of Session in Scotland, disallowing a bill of ex

In the House of ceptions (a) tendered by the appellants, who were the defenders Lords.

in the court below, to the rejection of certain evidence by and to the summing up and directions of the learned judge, the Lord Justice Clerk, on the trial of the cause. The action was brought by the respondents, the pursuers in the court below, for the infringement by the Househill Company of the letters patent for Scotland, granted October 1st, 1828, to J. B. Neilson, for his invention of “the improved application of air to produce heat in fires, forges, and furnaces, where bellows or other blowing apparatus are required ;” and the issues adjusted and settled by special interlocutor of the Second Division of the Court of Session, and ordered to be the issues to try the cause, were as

follows (6):Issues.

1. Whether, in the course of the year 1840, and during the currency of the said letters patent, the defenders did, in or at their iron works at Househill, by themselves or others, wrongfully and in contravention of the privileges conferred by the said letters patent, use machinery or apparatus substantially the same with the machinery or apparatus described in the said specification, and to the effect set forth in the said letters patent

and specification, to the loss, injury, and damage, of the purCounter-issues. suers. Or, 2. Whether the invention, as described in the said

letters patent and specification, is not the original invention of the pursuer, the said J. B. Neilson. 3. Whether the description contained in the said specification, is not such as to enable workmen of ordinary skill to make machinery or apparatus capable of producing the effect set forth in the said letters patent and specification. 4. Whether machinery or apparatus, constructed according to the description in the said letters patent and specification, is not practically useful for the purposes set forth in the said letters patent.

By the Judicature Act (6 G. 4, c. 120, s. 8), it is enacted, “ that the parties are to give in the one a condescendence, the other an answer or mutual condescendence, setting forth, without argument, the facts which they aver and offer to prove in sup

(a) The bill of exceptions set forth the issues adjusted to try the cause, the warrant for the letters patent, the letters patent and specification, the whole evidence given at the trial, and the direction of the learned judge in his summing up to the jury. The form of the bill of exceptions has been adhered to as closely as possible in the following report. The reader is referred to the Printed Case in the House of Lords for a full account of all the proceedings in this case, and for the judgments of the Second Division of the Court of Session on the bill of exceptions, in which are contained much valuable information on the practice as to issues in the Scotch Courts. The pro ceedings at the trial have also been printed.

(6) The specification was the same as that enrolled under the letters patent for England, ante

273. The grant of the letters patent, the enrolment of the specification, and the joint interest of all the pursuers in the letters patent, were ordered to be admitted. The pursuers claimed damages, both by way of profits and for the infringement.

The above forms of issues as framed by the Lord Ordinary were, after considerable discussion before the judges of the Second Division, settled as the proper issues to try the cause. The case of Astley & Taylor (1 Shaw's Ap. C. 54) was referred to as showing the form of issues sustained by Lord Eldon in cases of this nature ; but it was held, that this was not such a decision as prec luded the court from reconsidering the proper style of issues applicable to questions of this nature. See the paper No. 11, in the printed case for the appellants.

port of the summons and defences, and in such condescendence, A.D. 1843. answers, or mutual condescendence, the parties shall, in substantive propositions and under distinct heads or articles, set forth all facts and circumstances pertinent to the cause of action or defence, and which they respectively allege and offer to prove.” Directions are thereafter given in the 10th section for the adjustment and authentication of the record, and it is enacted that the record, so made up and authenticated, shall be held as “ foreclosing the parties from the statement of any new averments in point of fact.” And, in like manner, the relative act of sederunt requires, that “parties shall set forth in separate and distinct articles the whole facts they aver and offer to

prove."

In pursuance of these enactments the defenders set forth on the record various facts as grounds of defence, of which the allegation as to prior use is the only one material to be stated here. They alleged the patent to be void and ineffectual, because the application of heated air to produce heat in fires, forges, and furnaces, was known and publicly practised prior to the date of Mr. Neilson's patent. That the invention now claimed was known and practised prior to the date of his patent both in England and Scotland. In particular, it was among others practised by the late Mr. Dawson, of the Low Moor Iron Works, in Yorkshire; by Mr. Wilkinson, of the Bradley Iron Works, in Staffordshire; and also at the Horsley Iron Works, in that county (c). The pursuers denied that the patent was void on any of the grounds, and alleged that the application of heated air, as averred by the patent, was known and practised in England or Scotland, and that the inventions referred to were an anticipation of Mr. Neilson's.

The defenders, in the court below, had delivered a note of objections, stating user at other places than those mentioned in the record, and, among others, user at Irvine. On the counsel Evidence of for the defenders calling evidence to prove the user at Irvine, user at places the counsel for the pursuers objected to its admissibility, and the record rethe Lord Justice Clerk sustained the objection, on the ground—jected. 1. That a paper of objections, lodged in process No. 24, with notice thereof before the record was closed, cannot supply defects in the averments in the record on which parties agreed to close the record, in terms of the statute, on the 22d of February, supposing that in such paper of objections there had been any such averment as in this case would be necessary in the record. 2. On the ground that no proper notice is given on the

(c) Reference was also made to the paper by Mr. J. Sadler, in Nicholson's Journal for April, 1798 (ante 275), to Chapman's invention in 1825 (ibid.), to the patents of Stirling (ante 275), and

Botfield (ante 274), and to an invention by Mr. Jeffries, of the Grove Foundry, Southwark, in or about the year 1825, for a mode of applying heated air in its transit in pipes.

In the House of record of the proposed line of inquiry generally, and no notice Lords.

whatever of prior use of the invention at a smith's at Irvine, by the application of hot blast to a smith's fire; and 3. On the ground, that in an inquiry as to the anticipation and prior use of an invention, by instances of the practices of individuals, going back to twenty years, it is essentially necessary for the interests of the patentees and ends of justice, that the record should contain such information as shall enable the patentee to be able to meet by inquiry these cases, and to investigate the character, purposes, and objects, of the practices to be proved against him, in which the prior use of his discovery and invention is said to be found. The same objection was held to apply to any other

evidence of the same character. Erception First. (1.) The counsel for the defenders thereupon excepted to the

above judgment, and rejection of the evidence tendered, and line of inquiry proposed to be entered.

The case on the part of the pursuers and defenders having closed, the learned judge directed the jury in point of law as

follows: Direction to the Lord Justice Clerk HOPE: Gentlemen of the jury; You will jury.

observe that there are two sets of issues in this case-one set is alternative, as to which the onus is wholly on the defenders. As to the issue for the pursuers, a prima facie case is sufficient. They have chosen in the conduct of the cause to anticipate the defenders' case, by leading their own evidence on those issues in the first instance; but the result is the same. As to the second set of issues, the defenders are pursuers. When a party complains of the infringement of a patent, he exposes it to

challenge at the instance of the defenders. The issue as to The first issue assumes the validity of the patent, as a point

which may, in the first instance, be easily proved, or may be ment assumes the validity of taken on the simplest evidence; and then asks, “Whether in the patent.

the course of the year 1840, and during the currency of the said letters patent, the defenders did, in or at their iron works at Househill, by themselves or others, wrongfully, and in contravention of the privileges conferred by the said letters patent, use machinery or apparatus substantially the same with the machinery or apparatus described in the said specification, and to the effect set forth in the said letters patent and specification, to the loss, injury, and damage, of the pursuers?” Perhaps it might be better in many such cases in the charge to take the defender's issues first. But in this case, I do not think that that course would present the case in a fair aspect to you. I think it necessary to explain the full bearing of the law on this first issue as to this particular patent.

My first duty, then, is to call your attention to this patentchiefly in reference to the first issue. I may have to allude, in anticipation, to the defenders' three issues. But I shall after

the

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