liamentary report upon this subject in 1829, entirely missed the old case of Roebuck and Stirling; and but for the short notice of it in the work before cited, it might yet have remained in the oblivion to whieh it has been for so many years consigned.

It is evident that the House of Lords has, on the present occasion, been mainly guided, and in fact felt itself restrained, by this previous decision; so that, although one of their Lordships has observed he should have decided in the same way, had that case not existed, it can scarcely be said the point has been so independently argued and settled upon general principles as it would have been had no previous decision, of any sort, been in the way.

The case of Roebuck and Stirling having, therefore, by this confirmation of its doctrine, become of still greater importance in our patent laws, it may be useful to observe, that although no report of it exists any where, the printed cases, on both sides, are in being, and may be found in the Gray's Inn Library, in the volume of House of Lords' Cases, containing the year 1774, and one or two more years, (towards the latter end of it,) and probably in other similar collections; and it is to be hoped, that our text writers, on this branch of the law, will, in some future editions of their works, give a separate report of this old decision from the printed cases alluded to. As to the other case referred to, of Clarke v. Laycock, decided by Lord Mansfield in 1766, although made so much of, and so strongly relied upon, by the respondents' Scotch counsel, the author of this report cannot but express his very great doubts if it had anything whatever to do with this question. Very great pains have been taken to trace out Lord Mansfield's original notes of this trial, but without success; and it appears pretty certain that they were destroyed, with many other MSS. of that eminent man, by a fire, which took place at Caen Wood, many years ago. There is not the slightest notice of such a case in the printed collection of his Lordship's decisions; and were it not for the clear evidence afforded by the original Roll in the cause, preserved in the Rolls Chapel, it might be doubted if the notice of it by the Scotch Judges was not altogether apochryphal. The author thinks, however, he is fully justified, by a perusal of the original proceedings in Roebuck's case, in the Court of Session, (which he has since had an opportunity of referring to,) in drawing the conclusion, that no such question as this arose in Clarke v. Laycock, and that it was cited in the Courts below, in Roebuck and Stirling, for a totally different purpose; in fact, merely to show, that an action upon the case would lie upon a patent, uuder circumstances similar to those in Roebuck and Stirling; for in no part of the argument below, upon the question of previous knowledge of the invention, was the slightest reference made to Clarke's case.

And it is a

strong corroboration of this view of that case, that the respondents, Stirling and Co., in their long and elaborate printed argument before the House of Lords, never make the most distant reference to such an authority.

It must now of course be taken to be clearly and indubitably settled, as the present law of the land, that no patent can be of any avail, to any inventor, if the invention, for which he takes a patent, whether in England, Scotland, or Ireland, was not, at the date of the grant, new in every part of the three Kingdoms; nay, according to the dicta of their Lordships, if it were not new in every single one of the numerous colonies forming part of the British realm. This is clearly the extent of the decision the House has arrived at. And it cannot be otherwise, since the word realm, in the statute of James, is now to be read (as their Lordships say it is) as meaning the present realm, and not the countries to which that word referred, when that statute was passed. Such being the case, there must be many existing patents open to the objection, that the inventions, for which they have been granted, were not, at the dates of the respective grants, sufficiently new. And many Scotch patents, the author knows for a fact, have been taken out, even after the English specifications have been inrolled, the parties relying upon the heretofore-received opinion, that if the knowledge of them had not travelled over the border, they were not too late to extend the grant to Scotland.

But it may be seriously doubted, if other still more important consequences must not necessarily flow from this decision; for it is well known, and in fact was mainly argued upon by the appellant's counsel, that the proviso, in all patents heretofore granted under this statute, whether for England, Scotland, or Ireland, merely restricts the condition of novelty to that part of the United Kingdom for which the patent is taken. This restriction is clearly, according to the recent decision, not sufficiently comprehensive, for it should extend to the whole realm, and the question necessarily and immediately arises :-Is not the patent itself void in law for having a proviso in it not warranted by the Act of Parliament? Or, at any rate, is it not voidable by scire facias, if any subject chooses to complain? Should this defect in the form of the proviso be such as shall lead to these consequences, not a single patent now existing, however valuable, and however well established by repeated decisions upon other points, can stand; and some legislative interference will be absolutely ne

cessary.

To determine the foregoing questions, the author might refer, perhaps, to the learned Attorney-General's expressed opinion upon the consequences which would result from their Lordships'

decision being against his client; but it is scarcely fair to quote what a counsel says in argument, as his own solemn opinion. Nevertheless we find, during the late discussion before their Lordships, the following deliberate expression of the Lord Chancellor :-- "If the proviso is made less extensive than the law authorises, it (the patent) would no doubt be void by the statute." (See Page 382.) His Lordship had also previously remarked, when first the proposition was put before him :-" If the word realm means the United Kingdom, then the proviso, in all English patents, is illegal, and the consequence would be, that every English patent would be void." (See Page 377.) And such, the author of this report would humbly venture to assert, is, or will be, the result of this decision, if some short Act of Parliament be not brought in to give effect to all existing patents, notwithstanding the form of their provisoes.

But it may be argued, that the patent itself may not be void, although the proviso, in its present form, be not warranted by the act of James; that the proviso is altogether unnecessary and surplusage; that the patent might be granted without any proviso, as to novelty, whatever; that it is only necessary that the fact of novelty should exist, and it need not be made any condition in the grant; in short, that the Act of Parliament would protect the subject against any grant inconsistent with the provisions of its saving clause, whether it contained any corresponding proviso or condition of novelty or not.

It may be correct to say, that a patent might be granted without any proviso at all, leaving the Act of Parliament to protect the rest of the lieges against any illegal grant, or any grant obtained upon misrepresentation of the fact of novelty; but it is obviously a very different thing for the Crown to grant a patent without any proviso whatever, (and which, therefore, would shew nothing on the face of it contrary to law,) and one assuming to give the subject a larger monopoly, or a monoply upon other terms than those to which its power is now restricted. It might be argued, in the same way, that a patent for 21 years, might be good for 14, which would be in the very teeth of the statute.

Furthermore :-surely it might be conclusively argued against any existing patent, containing such a proviso as is now condemned as too narrow, that the grant is, on the face of it, contrary to law, (as being too extensive,) and, therefore, void by virtue of another condition contained in it. The author is aware that this condition of not being contrary to law, has been supposed to refer only to the particular instances subsequently mentioned in the patent; namely, by the grant leading to a monopoly, and being prejudicial to trade; but there is no authority for so limited a signification of this proviso. And it would be more consistent with the grammatical reading of the clause to consider

the words "not being contrary to law" as a separate and distinct condition, unconnected with the following one, of its being "mischevous to the state," to which alone the subsequent definitions really refer. And this point was slightly touched upon in the argument between the second learned counsel, on the part of the appellant, and one of their Lordships, although not dwelt upon or noticed in the judgment, their Lordships feeling themselves apparently precluded by the authority of Roebuck's case, or that it was not necessary for them, after that, to go into any collateral points.

It may have appeared somewhat presumptuous in the writer of these remarks thus to impugn the validity of all existing grants, since the law officers of the Crown have not deemed it necessary (not even since the above decision has been publicly known) to make any alteration in the forms of patents, for they continue to be issued, with the proviso as to novelty, in the same words as heretofore. Possibly this may have arisen from inattention, or from a desire not to prejudge the question, to which allusion has been made.

It cannot but be felt by all owners of patents, that this doubtful state of the law, or suspicion, if it be no more, of the invalidity of existing grants, is very unsatisfactory, and that it would be extremely desirable that all doubts should be got rid of during the ensuing session. Might it not afford also a good opportunity for amending the present inconvenient practice of requiring three separate grants for the three sections of the Kingdom? Surely the same stamps and fees might be retained and paid on a single grant, (if that be the obstacle,) just as they are now exacted on the three grants, leaving the patentee the same option which he now has, of having such grants made out for one, two, or three countries.

Scientific Notices.

REPORT OF TRANSACTIONS OF THE INSTITUTION OF CIVIL ENGINEERS.

(Continued from page 314, Vol. XXI.)

Mr. Farey remarked, that it would lead to an incorrect appreciation of the merit of the new indicating instrument, if it were to be considered merely as a substitute for the ordinary indicator, when in fact they were two instruments, adapted to and equally useful for different purposes.

The new instrument does not preserve any record of the minute details of any one stroke, like the ordinary indicator, but it records a true aggregate of all the details of any number of succeeding strokes it gives the same results as would be obtained if it were possible to have two ordinary indicator cards correctly taken, at each succeeding stroke of the engine, during the whole time of observation, by means of two indicators, one of them applied to the upper, and the other to the lower end of the cylinder; and also provided, that an accurate admeasurement of every one of all those cards was afterwards made, at ten places, in the length of the card, by the scale of pounds per square inch, in the usual and the amount of the ten measurements added into one sum, and then (without averaging each card) that such sum of each card should be carried to a continuous account, to obtain a grand sum total, representing all the force that had been exerted, during both halves of every stroke made throughout the experiment, reckoned at ten stages or portions of the length of stroke.

manner,

Such a grand total of all the cards would be a number representing the same fact, as is represented by the number shown by the new instrument; and would therefore be dealt with, in each case, in a similar manner, as one of the data (viz., that representing force) for calculating (by aid of other data representing motion or space) the whole power exerted during the time of observation.

In trying the performance of a steam-vessel, alternately up and down the measured mile in the river Thames, along the shore of Dartford marshes, it is usual to take an indicator card from each engine, at every such run; and by summing up each card, some difference will be found between them, wherefore an average of the results of several cards will give more authentic information respecting the force exerted by the engines during the whole trial, than could be obtained if one such card aloue had been depended on. The new instrument takes cognizance of every stroke that is made by the engine during the whole time of observation; and in cases (such as in the Great Western steamer) where a considerable variation of force in succeeding strokes occurs frequently during such time, it is a desideratum to obtain