had delivered particulars of objections, and just before trial the plaintiff had abandoned his action, thus giving the defendant no opportunity of proving or disproving his objections, the defendant was entitled to the costs of the objections and of the witnesses, for the act did not apply, except where the cause came on for trial.

But where the action came on for hearing, and the case breaks down before all the particulars have been tried out, the Court will not go through all those particulars with a view to ascertain whether they are reasonable and proper and can be substantiated, and a certificate will only be granted with respect to those particulars upon which the action was decided (g).

The reason of this distinction is that in the first case, that is, when the plaintiff abandons his action before trial, he thereby admits the substantial nature of the objections taken to his patent by the defendant; but in the second case, that is, where judgment is given upon some particular point without the necessity of considering any of the other objections relied on by the defendant, it does not at all follow that the other particulars were proper and could be substantiated, as there is neither judgment of the Court nor admission by the plaintiff to that effect.

No mention is made in sect. 29 to a petition for revocation, so probably in such case the provisions of that section will be held not to apply (h).

No costs were allowed a defendant who was successful by reason of anticipations only put in by amendment of his particulars of objections at the trial of the action (i).

We have seen that since the Judicature Acts, the Common Law Division and the Chancery Division can either of them grant full relief in an action for the infringement of a patent, granting both an injunction and damages, or an account. In olden times the Common Law Courts merely inquired into damages, and if

noch, L. R., 20 Eq. 632; Peroni v. Hudson, 1 P. O. R. 261; Willougby v. Taylor, 11 P. O. R. 45, 55.

(g) Longbottom v. Shaw, 5 P. O. R. 497, 502; 6 P. O. R. 143, 147; Boyd v. Horrocks, 6 P. O. R. 152, 162;

Garrard v. Edge, 6 P. O. R., 372, 553; 7 P. O. R. 139.

(h) Gaulard v. Gibbs' Patent, 5 P. O. R. 525, 537.

(i) Allen v. Horton, 10 P. O. R. 412.

less than 40s. was recovered a question arose as to whether or not County Court costs should not alone be allowed; but now in every patent case an injunction may be granted, and this removes the case from the operation of 30 & 31 Vict. c. 142, s. 5.

The Rules of the Supreme Court, 1883, provide for cases where the higher scale and lower scale of costs are to be allowed; and in future, notwithstanding that an injunction is granted, it will be necessary to ask the judge at the trial to certify for costs on the higher scale.

Order LXV. r. 8, provides : "In causes and matters commenced after these rules come into operation, solicitors shall be entitled to charge and be allowed the fees set forth in the column headed lower scale,' in Appendix N. in all causes and matters, and no higher fees shall be allowed in any case, except such as are by this order otherwise provided for; and in causes and matters pending at the time when these rules come into operation, to which the higher scale of costs previously in force was applicable, the same scale shall continue to be applied."

Rule 9.-"The fees set forth in the column headed 'higher scale' in Appendix N. may be allowed, either generally in any cause or matter, or as to the costs of any particular application made, or business done, in any cause or matter, if, on special grounds arising out of the nature and importance, or the difficulty or urgency of the case, the Court or a judge shall, at the trial or hearing, or further consideration of the cause or matter, or at the hearing of every application therein, whether the cause or matter shall or shall not be brought to trial or hearing, or to further consideration (as the case may be) so order; or if the taxing officer, under directions given to him for that purpose by the Court or a judge, shall think that such allowance ought to be made upon such special grounds as aforesaid."

Costs on the higher scale are only allowed in cases of exceptional difficulty, where a special class of witnesses was necessary for making clear the points at issue (k).

(k) Ellington v. Clark, 5 P. O. R. 319, 328; The Automatic Weighing Machine Co. v. The Combined Co., 6 P. O. R. 367, 372; Farbenfabriken

Vorm F. Bayer & Co. v. Bowker, 8
P. O. R. 389, 397; Hopkinson v. St.
James' Electric Light Co., 10 P. O. R.
46, 62.

In Gadd v. The Mayor, &c., of Manchester (1), Lindley, L.J., said: "I think costs on the higher scale ought only to be given where there are cases of very unusual difficulty and skill--antiquarian research and things of that kind. The idea of giving costs on the higher scale in all patent cases is one that I will not sanction."

The Courts have of late been very reluctant to order costs on the higher scale (m).

In The Wenham Gas Co. v. The Champion Gas Co. (n), costs on the higher scale were refused on the ground that the necessity for scientific evidence was largely due to the unfortunate wording of the specification.

Sect. 49 of the Judicature Act, 1873, provides that there shall be no appeal as to costs; but this was held not to apply where the costs were a matter of right, and not discretionary (o). Under the Rules of Court, which were in operation prior to the 24th October, 1883, the question of higher or lower scale was a matter of right (p). Hence, in Re Terrell (q), the Court of Appeal held that there was an appeal, but now it will be observed that the order is in the absolute discretion of the judge, and, therefore, it is submitted there is no appeal.

The directors of a limited company, whose servants have infringed a patent, may be ordered to pay costs personally.

In Spencer v. The Ancoats Vale Co. (r), it was ordered that costs on the higher scale should be paid by the defendant company, and by the directors in the event of the company not paying.

Judgment having been recovered, minutes of judgment should be prepared. The minutes will be in accordance with one or other of the precedents given hereafter. We have drawn attention in previous pages to those points which should be attended to in preparing these minutes. Care should be exercised

when an account is directed to be taken that provision be made for the payment of costs to the plaintiff up to and including the hearing, otherwise the payment of all costs will be delayed until the final account has been taken, which in some cases has been known to amount to a delay of years.

A stay will be put upon a judgment pending appeal when the matter at issue is of great importance, and when in the event of the judgment being reversed great injury would otherwise be incurred by the defendant, but in such cases the defendant is ordered to keep an account, and to bring his appeal without delay (8).

PRACTICE ON APPEAL.

UNDER Order LVIII. rule 4, the Court of Appeal has all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in Court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory application, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court.

As to further evidence in Hinde v. Osborne (t), Lindley, L.J., said: "The power given to the Court of Appeal to hear fresh evidence is an extremely valuable one, and is given by Order LVIII. r. 4. I cannot understand that as meaning that the Court of Appeal ought to grant leave to adduce fresh evidence, simply because a man has failed at the trial and he thinks he can

(8) The North British Rubber Co. v. Macintosh, 11 P. O. R. 477, 489; see also Hocking v. Fraser, 3 P. O. R. 7; Kaye v. Chubb, 4 P. O. R. 27; Proctor v. Bennis, 4 P. O. R. 363; Lyon v. Goddard, 10 P. O. R. 135. For form of order see Lyon v. Goddard, 10 P.

O. R.,

at p. 136.

(t) 2 P. O. R., at p. 47; instances where fresh evidence was allowed on appeal, Britain v. Hirsch, 5 P. O. R. 226; Spencer v. Ancoats Rubber Co., 6 P. O. R. 46; Blakey v. Latham, 6 P. O. R., at p. 186.

get more evidence, which, if he had got it before, would have enabled him to succeed on the trial. That cannot be. There must be some ground shown to satisfy the Court that there is some evidence now forthcoming, which, with due diligence, he could not have got, and it must, therefore, in accordance with the usual practice, be evidence, not merely swearing by affidavits or anything of that kind, but something in the nature of the production of a lost document, or something of that sort, which will not expose the parties to a mere flood of affidavits made up to meet the blots and defects which have been disclosed upon the first trial."

As to amendment of pleadings and particulars, in Cropper v. Smith, Bowen, L.J., said (u):-"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal, and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace."

On appeal to the House of Lords it was held in a case where the Court of Appeal had held the specification bad and for the defendant on the infringement issue, but the House had reversed the decision on the specification and upheld it on the infringement issue, that each party must pay their own costs of the appeal (x).

(u) L. R., 26 Ch. D. 710; instance when amendment was allowed, Pirrie v. York Street Spinning Company, 11 P. O. R., at p. 431.

(x) Moore v. Bennett, 1 P. O. R., at

p. 148; Griff. P. C. at p. 161; see also as to costs on reversal of decision of C. A. by House of Lords, The United Horsenail Co. v. Stewart, 5 P. O. R. 260, 269.