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1842.

BROWN

v.

ANNANDALE.

Roebuck

V.

Stirling.

the judgments of this House to be held binding? Of course this House has the same power to review its own judgments as the Courts below have.

tion, was never practised in England prior to the date of the Appellants' patent.]

3. Upon a fair view of all the circumstances in evidence, it appears that the Appellants were the original inventors, and for some time exclusively possessed the improvement; that on discovery of undue attempts on their servants, to come at the secret of this improvement, the Appellants then obtained the patent for the exclusive exercise of their invention; that prior to the patent the invention was not known in Scotland to any besides the Appellants; that the imperfect attempts to reduce it to useful practice in England, took their rise from the assistance and information of one of the Appellants' servants, who was dismissed for misbehaviour, and who pretended he had, but truly had not, learned the secret; and that whatever knowledge the Respondents might have acquired of the invention, they had come at by corrupting the Appellants' servants, or by the disclosure of the invention made by the Appellants in their specification.

The reasons annexed to the Respondents' printed case, and signed by Al. Forrester and Al. Murray, were to this effect:—

1. Every grant from the Crown may, by the law of Scotland, be set aside, if obtained by concealing the truth, or upon a false or erroneous representation of facts. The petition, on which the patent in question was obtained, disguised the truth, as it induced a belief of a new manufacture being then discovered. It concealed the fact that Dr. Ward had obtained a patent for extracting the same acid spirit from sulphur by a mixture of saltpetre; that the Appellants' themselves, and others in England, had carried on that manufacture; and under cover of leaden vessels, a colour was given to their alleged invention as if the whole had been a manufacture then newly discovered; whereas the operation had been performed, even in leaden vessels, long before the date of the patent.

2. Monopolies being adverse to the constitution and common law of Scotland, the grant thereof can be supported only from some evident public utility, or as a reward for the ingenuity and labour of a perfectly new invention; neither of which are at all applicable to a patentee who at the obtaining of his patent is only continuing a manufacture long carried on by him in Scotland, and brought there from the other part of the United Kingdom, where it had long been in full use and practice, not restrainable byany grant of the Crown, and consequently not restrainable in Scotland, by the very words of the 6th article of the Union treaty, which in points of trade subject both parts of the United Kingdom to the same restrictions, and allow the same exceptions.

3. Whatever claim the inventors of a new discovery may have by the common law of Scotland, or by 21 James 1, now become the law

The Lord Chancellor :-They are binding on all inferior jurisdictions, but not absolutely binding on this House. It would, however, require strong reasons for us to set aside a decision of the House on the very point raised in this case.

The Attorney-general:-The true rule I take to be, whether the decision is binding beyond the strict necessity of the case. The reasons assigned form no part of the judgment of the House; and if the judgment be right and maintainable" for other reasons,' it is open to me to re-argue the points contained in the reasons assigned. The decision of the House does not make them law.

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The Lord Chancellor :-The second reason is made an essential part of the judgment of the House.

The Attorney-general:—It is clear that in that case there was previous user by the party himself in Scotland; and that was sufficient ground to set aside the patent and support the judgment. The circumstance that no costs were given is evidence that the decision

of that part of the United Kingdom, to a reward for their industry by a monopoly for a term of years, the Appellants can never bring themselves within any such description. The claim supposes them to be the original inventors, which they have not proved. Next, it supposes the invention to have been of difficult investigation, which was not the case; the discovery being no more than a change of the material of the vessels in the manufacture, which was not new, being known and practised by several others long before the patent was granted; nay, for many years by the Appellants themselves.

4. The imputation endeavoured to be fixed on the Respondents of corrupting the Appellants' servants, is unfounded and foreign to the purpose; the sole question being whether the making oil of vitriol in leaden vessels was an operation new and unknown to others when the Appellants obtained their patent. The Respondents could not have any object in being informed of the use of leaden vessels, since they were proved to have been well informed thereof before that time.

The appeal came to be argued before the House of Lords on the 27th of May 1774, when-" It was ordered and adjudged that the appeal be dismissed, and the interlocutors therein complained of be affirmed, for other reasons, as well as the reasons specified therein."

1842.

BROWN

V.

ANNANDALE.

Roebuck

V.

Stirling.

1842.

BROWN

V.

ANNANDALE.

was not given on the ground taken in the Court below; and the other circumstance, that the practice had been uniform the other way for 200 years, is a practical construction of the Act of Parliament during all that period. The 6th article of the Union has nothing to do with monopolies for inventions, and does not apply to this case. There was a patent law in Scotland long before. Did the Crown lose, by the Act of Union, the power to grant a patent for one kingdom separately from the other, as before the Union? If this be a good patent, the proviso makes it clear that no prior user, except in Scotland, will vacate it. Every patent, both English and Scotch, is in jeopardy if this is not right.-[The cases of Laycock v. Clarke (e), The King v. Arkwright, and Tennant's Patent (ƒ), were referred to.

Mr. Biggs Andrews (with the Attorney-general):The condition on which the patent to the Appellant is made defeasible is, that the invention is new in Scotland, not defeasible by reason of previous use of the machinery in England. The Respondents try to control the prerogative because they say there was previous user in England. If the Crown had the power of granting these patents before the Union, as part of its prerogative, that power could not be taken away except by express Act of Parliament. The Crown, by the common law, before the statute of James, which is restrictive of its prerogative, had the power to grant patents without restriction to the true and first inventor of any invention in England (g), or the importer of any invention from a foreign country; Edgesbury v. Stephens (h). All the forms of patents in England proceed on the narrative that the invention is new in England (Davies on Patents, p. 27); and if not new

(e) Morr. 5045.

(f) Davies' Pat. Cas. pp. 129. 400.

(g) Noy, p. 182.
(h) 2 Salk. 447.

1842.

BROWN

v.

in England, the patent is defeasible. The case of The King v. Arkwright, relied on in the Respondents' printed case, is in favour of the Appellant. The cases ANNANDALE. of Laycock v. Clarke, and of Tennant's Patent, have no application to this; and as to Roebuck v. Stirling, it is quite clear that the judgment of the House does not go on the ground only of previous user in England.

The Lord Chancellor :-As far as I am concerned, I feel myself bound by the decision of the House in that case you cannot aver against the record as in the Journals.

Lord Brougham:-The case of Roebuck v. Stirling appears to me perfectly to decide this case. The Court of Session had dismissed the suit because it appeared that the process in question was known to and practised by different persons in England. This House adjudged that the interlocutors complained of be affirmed "for other reasons, as well as the reasons specified therein." That implies that they concurred in the reasons thus given on the face of the interlocutor. What other reasons there may have been for the affirmance may be a question, but that reason was put forward by the Court below as the ground of its decision; and being so put forward, was, at all events, one of the reasons for the affirmance of the judgment, with other reasons not stated by the House.

Lord Campbell:-There is an express decision applying in its terms to the present case just as much as if other reasons had not been introduced into the

judgment of the House. That being an express decision upon the point in question, unless it is shown that the House was under some great mistake at the time, it must be considered as binding. I entirely concur in the decision: I think it is perfectly right, and if it had been res integra I should have so decided; but

1842.

BROWN

V.

ANNANDALE.

especially after that decision, I perfectly concur in the affirmance of the judgment of the Court below. My opinion is that the law was quite correctly laid down by this House in 1774.

Lord Brougham:-When I stated that I proceeded on the decision of this House in Roebuck v. Stirling, in the year 1774, I intended to have added that I should have so decided without that precedent. I entirely agree with my noble and learned friend, that if this had been res integra, I should have so decided it.

The Lord Chancellor :-Mr. Attorney-general has stated that several opinions have been taken upon this subject in England. When the case came before one Judge, he decided it in the way in which we think he ought to have decided it. Then it afterwards went before the full Court, and they were unanimous in their judgment, corresponding with the previous decision of this House. And with respect to the previous decision of this House, we have searched the Journals and we find that the Lord Chancellor was present, and not only the Lord Chancellor, but Lord Mansfield also.

Mr. Fitzroy Kelly and Mr. Godson appeared for the Respondents, to support the judgment of the Court below. As their Lordships proposed to affirm that judgment without hearing them, they asked that it might be affirmed with costs, the appeal being directly in the face of a judgment of this House.

The Lord Chancellor :-I think it must be affirmed with costs.

And it was so ordered.

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