tratoribus, et assignatis ejus, nostras regias literas patentes, sub sigillo per unionis tractatum appunctuat utend. in loco magni sigilli Scotiæ, pro sola factitatione, usitatione, exercitatione, et venditione, dictae ejus inventionis, omnique alio beneficio et commodo ejusdem intra illam partem Regni nostri Uniti Magnæ Britanniæ et Hiberniæ, Scotiam vocatam, pro termino quatuordecim annorum, secundum statutum in eo casu factum et provisum : Nos, autem, omnes artes et inventiones quæ ad bonum publicum et commodum conducere possint, promovere volentes: idcirco, ex gratia nostra,' &c. It then proceeds, in the usual form, to grant to the said James Brown, the sole privilege of using and exercising the said invention within that part of the United Kingdom called Scotland, and of enjoying the whole profits and emoluments therein arising 'pro et durante termino annorum in præsentibus mentionato. Tenend. et habend. exercend. et potiund, dictam licentiam, potestates, privilegia, et commoditates in præsentibus, supra concess. vel concedi mentiona, dicto Jacobo Brown, executoribus, administratoribus, vel assignatis suis, pro et durante spatio quatuordecim annorum, et usque ad plenum exitum et terminum eorum a data præsentium proxime et immediate insequent." After which follows the condition thus expressed :-' Proviso semper, sicuti tenore præsentium expresse provisum et declaratum est, ut si quovis tempore durante dicto termino, per præsentes concesso, nobis hæredibus et successoribus nostris, aut quibuslibet sex vel pluribus eorum qui nobis vel illis a secretoribus conciliis erunt, manifestum reddetur hanc nostram concessionem legi contrariam, vel subditis nostris majore exparte damnosam vel incommodam esse, vel dictam inventionem quoad publicum ejus, in illa parte Regni nostri Uniti, Scotia vocata, usum et exercitium, non esse novam inventionem, vel a dicto Jacobo Brown, ut prædicitur non esse inventam: Tum, per ejus rei significationem a nobis hæredibus vel successoribus nostris, sub nostrum vel eorum signeto vel sigillo privato, vel a dominis aliisque nostri vel eorum secreti concilii, vel quibuslibet sex vel pluribus eorum sub eorum manibus et sigillis faciendam præsentes hae literæ penitus cessabunt, finem capient, ac prorsus ad omnes intentiones et proposita, irritæ fient, quacunque re in hac carta supra contenta in contrarium nulla-tenus obstante.' "Now the first remark that occurs upon the terms of this patent, relates to the reference which, in the petition therein recited, is made to the statute regulating the endurance of the grant, secundum statutum in eo casu factum et provisum.' There can be no doubt that the statute here referred to, is the English act 21st James I.; and some attempt may possibly be made to found on this circumstance, as inconsistent with the appellant's argument as to the foundation on which the law of patents stands in Scotland. But it will be carefully kept in view that in the dispositive or granting clause of the patent, as well as in the tenendum, the limitation is simply 'pro et durante spatio quatuordecim annorum a dato præsentium,' without any reference to that or any other statute. This, however, is different from the form of patents for inventions in England; the tenendum of which, after expressing the term of fourteen years, uniformly contains the words, according to the statute in such case made and provided;" *whether with reference to the term of years only, or generally to the authority on which the grant proceeds, the appellant shall not presume to offer any opinion; although, if the latter construction be the true one, it would just afford a still stronger illustration of the difference between an English and Scotch patent, in regard to the legal footing on which the right of the Crown to grant them in the two countries respectively rests. "Next, with respect to that part of the petition, as recited in the patent, which states the belief of the petitioner (appellant) that the invention had not been previously used by any other persons, intra hæ regna,' it must be obvious, from what has been already said, that the insertion of these words, so far as applicable to other portions of the United Kingdom different from Scotland, *Vide Godson on Tatents, App. No. 3. although perfectly consistent with the fact, as regards the knowledge and belief of the appellant at the time, was in itself quite superfluous and immaterial. Accordingly, the appellant observes, from an examination of the register of patents which have been granted for Scotland during the last two years, that the uniform style of the petition since the commencement of that period, is to confine the statement to the circumstances of the invention not having been previously used in Scotland, to the knowledge or belief of the petitioner. And what is of still more importance to be attended to, the condition under which the present patent is granted, is expressly so limited, by the words of the proviso above quoted,-declaring the nullity of the grant in case it should appear 'dictam inventionem, quoad publicum ejus, in illa parte Regni nostri Uniti, Scotia vocata, usum et exercitium, non esse novam inventionem. “With these explanations, then, the question is reduced to this :-What, according to their true construction and meaning, are the conditions under which the patent in favour of the appellant is granted, in reference to the novelty of his invention,-and do those conditions express or imply, as assumed in the judgment appealed from, that the said invention had not been previously known or used in England? "In discussing this point, it is indispensable to keep the argument quite clear from all such considerations, as might have arisen upon a state of the fact different from that which is set forth in the Bill of Exceptions, and which the Court below has found to be per se a sufficient ground in law for voiding the patent. That fact is simply, that previous to the date of the appellant's patent for Scotland, the invention had been used in England. There is no statement to the effect that it was previously used in Scotland. It is not even stated that its previous use in England was known to the appellant, when he applied for a patent for Scotland. Had the fact been so, it is easy to see that a different question might have arisen; namely, how far a misrepresentation in the petition as to that particular, would vitiate a patent, even supposing the invention to have been first introduced into Scotland by the party applying for it. But no such question is, or can be raised, on the statement in the present Bill of Exceptions, which, as already noticed, is solely and exclusively confined to the fact of the previous use of the invention in England. "The first part of the proviso in the patent, expressing the terms on which the right was granted, and on which its validity was thereby declared to depend, is, that the said invention is a new invention, as to the public use and exercise thereof, in that part of our United Kingdom called Scotland.' Now, -independently altogether of the qualification as to the public use and exercise of the invention,' upon which the appellant does not mean to lay any stress, it appears to be as clear and incontrovertible, as any proposition can be, that if a thing is invented in Scotland, it is a new invention in that country, although it had been previously invented and used in England. Under such circumstances, the invention in Scotland, though not absolutely, with reference to all the world, the first invention, yet, with reference to Scotland, it is a new invention. But this completely satisfies the terms of this condition of the patent, which only requires that the invention should be a new invention in Scotland. Therefore, the fact that the invention had been previously used in England, is no voidance of the patent, so far as regards the effect of the proviso which has just been considered. "The construction here contended for seems to be supported by the construction put upon the statute of 21st James I. c. 3, and patents granted thereunder by the English courts. ་ "The patents and grants which are valid under the 6th section of that statute, are patents and grants' of the sole working or making of any manner of new manufactures within this realm to the true inventor and inventors of such manufactures, which others, at the time of the making such letters patent and grants, shall not use.' VOL. XXI. 2 A "Yet it was held soon after the statute, that a patent granted for a thing which had been before practised beyond sea, to the person who introduced it into England, was good and valid; (Edgebury v. Stephens, 2 Salk. 447 ;) and this construction has continued to be put upon that clause, and subsequent practice has confirmed it.* "The second requisite, as expressed in the patent, is, 'that the said invention shall have been invented by the said James Brown.' But if truly invented by him a fact which is not brought into question-there can be no force or relevancy in the statement, that it had been previously invented by another in England. For it is evidently quite possible, that the same thing may be found out by two different persons, either in the same or in different countries, and either simultaneously or at different times. An art, formerly practised, may have been totally lost; or a machine used in another country, may be wholly unknown here; and surely any person, who, by the application of the powers of his own mind, shall restore the one or invent the other, in this country, is not less entitled to the character of a discoverer or inventor than he would have been, if the art referred to had never been before known, or the machine used elsewhere. It seems therefore impossible to maintain, that according to the plain meaning and express terms of this patent, the improvement in question was not invented by the appellant, merely because, without his knowledge, it had been previously invented and used in England. And the appellant need hardly add, that the advantages resulting from his invention to the inhabitants of Scotland, could not be lessened by the circumstance of its having, while still unknown there, been practised in the neighbouring country. "In arriving at the conclusion which they did, it is understood that the Court below were chiefly influenced by a decision of this House, affirming a judgment of the Court of Session, in the prior case Roebuck and Garbett v. Stirling and Son, 27th May, 1774. For when the Bill of Exceptions came to be advised, nothing more was said by any of the Judges, than that the case of Roebuck was a direct precedent, and that they were bound to decide in conformity with it. 66 Upon a careful examination, however, of the circumstances of the case of Roebuck, the appellant hopes to satisfy your Lordships that they were different from those of the present in various essential particulars. The facts, which there occurred, as collected from the statements and evidence referred to in the Appeal Cases, were as follows:-In 1771, Dr. John Roebuck and Samuel Garbett obtained a patent in Scotland, for a mode of manufacturing oil of vitriol in vessels of lead. Previous to this, it appeared that they had carried on the same manufactory, for fourteen years, at their works at Prestonpans, near Edinburgh. Shortly after the date of their patent, Roebuck and Garbett presented a bill of suspension and interdict against Stirling and Son, merchants in Glasgow, to have them prohibited from proceeding with certain buildings, which the latter were in the course of erecting for the purpose of carrying on a similar manufactory. In discussing this bill, which was passed on caution, the respondents, Stirling and Son, objected to the patent,-1st, That the substitution of lead in place of glass vessels was no new discovery, being only a small variation in the method of conducting the manufacture. 2d, That it could be no new discovery at the time of granting the patent, because the suspenders had carried on the manufacture in that method for twenty years preceding that period. 3d, That at the time the patent was granted, this method of manufacturing oil, or spirit of vitriol, in vessels of lead, was known to, and practised by, various other people both in England and Scotland. And, 4th, That the suspenders had not given such a description of their invention as was required by the patent, and that it was signed by Dr. Roebuck alone, and not by both the suspenders. "On these allegations, and counter-averments by the suspenders, a proof, before answer, was allowed by the Lord Ordinary to the respondents, to prove that the making the oil of vitriol from a mixture of sulphur and saltpetre, in *Godson on Patents, p. 32. vessels of lead, was at the time and before the date of the letters patent, known to, and actually practised by others, than the suspenders. "The proofs being concluded, the cause was taken to report upon memorials. "Upon the evidence the following questions arose :-1st, Whether the respondents had proved that they knew and practised the mode of preparing oil of vitriol before the date of the patent. 2d, Whether before that period the same mode was known and practised by any other person in Scotland. And, 3d, Whether there was any evidence that before that time the same mode was known to, and practised by, any person in England. "On advising the cause, the Court of this date* pronounced the following interlocutor:-On report of the Lord Justice-Clerk, and having advised the proof and memorials, hinc inde, in respect it appears from the proof adduced that the art of making oil of vitriol from a mixture of sulphur and saltpetre in vessels of lead, was at the time, and before the date of the letters patent, in favour of the suspenders, (i. e. appellants) known to, and actually practised by, different persons in England-therefore the Lords find the letters orderly proceeded, and decern. "The case was brought by appeal to the House of Lords, where it appears that the respondents, Messrs. Stirling & Son, strenuously insisted upon the invention having been known in Scotland, as well as in England. "The appeal was disposed of by the House of Lords, of this date. The judgment was as follows:-' Ordered and adjudged that the said petition and appeal be dismissed, and that the said several interlocutors therein complained of, be, and the same are, hereby affirmed, for other reasons, as well as the reason specified therein. "It will be observed, that in Roebuck's appeal, the attention of the House of Lords was not confined to the sole point depending for decision in the present case: viz. Whether the previous use in England of itself invalidated the patent; nor did their judgment necessarily depend upon the opinion entertained by the House upon that point. "The whole case was brought before the House upon that appeal; and all the points that could be made in the case were raised, argued upon, and relied on to sustain or impeach the decision of the Court below; and it is submitted to be quite clear, that the decision of the Court below was capable of being supported, even if the reason given for that decision had been deemed erroneous. "The evidence stated in the case shews that Stirling and Son § had been acquainted with the use of leaden vessels in the manufacture of vitriol, and had actually used them a considerable time before Roebuck and Garbett's patent was obtained. Thus Alexander Copland swore,' that upon an invitation from himself, the respondent, Andrew Stirling, came to his the deponent's father's house in Galloway in the end of May 1770: That he there, in repeated conversations, disclosed his method of making oil of vitriol, and performed experiments with him, in order to confirm what he told him, but that, for want of convenience, he did not then shew him by experiment the process. in leaden vessels so far as he could have wished, having only had one small leaden boiler, which was made use of at that time. And, being interrogated by the appellants, deposes, That it was some time in summer 1769, the deponent first made the volatile spirit of vitriol in leaden vessels, but did not concentrate it to the oil of vitriol till a short time before the date of the letter produced of the 11th October 1769; but the quantity of oil he made at that time did not exceed half an ounce: That after that experiment, the deponent did frequently make the spirit of vitriol to the extent of a gallon, or thereby ; but that he did not afterwards take the trouble of concentrating it into oil, as thinking it unnecessary, the concentration of the oil of vitriol being a wellknown process; and the whole of the process the deponent kept as secret as 10th March, 1774. 27th May, 1774. ♪ Appeal Case for Stirling & Son, page 4. he could, and did not discover it to any body, except his brother, Mr. Kent, and the respondents. That the respondent, Mr. Andrew Stirling, was about a fortnight at the deponent's father's house, during which time the deponent did make a small quantity of the spirit of vitriol in presence of the said Stirling, but did not concentrate any of it into oil, not having the proper apparatus: And, being interrogated whether the Messrs. Stirlings applied to him for any farther information about the process for making the oil of vitriol after the said Andrew Stirling had returned from Galloway, deposes negative, Andrew Stirling having taken notes from the deponent's book of experiments before referred to, and likewise notes from the conversations between them.'. This witness produced upon oath the following extracts from his book of experiments: Remarks for making oil of vitriol, that it keeps up all the metals when concentrated, and particularly lead, which it seems to act on then, whether hot or cold, but when diluted about one-fourth to three-fourths of water, it lets fall all the lead it had taken up in the form of a white powder. Hence leaden cisterns may be used for condensing the fumes and boiling down the liquor to the strength above mentioned, when (meaning after which) glass retorts must be used, &c.' It appears that the acid does not act upon the lead perceptibly till it is boiled so far down as to be equal parts of it and water; therefore it appears that the liquor may be boiled in lead always till there is two-thirds water to one-third acid, &c.' The above are selected out of a number more to the same purpose, all relating to the construction and management of leaden vessels for making oil of vitriol; and there are several drawings of leaden vessels for the same, and in the said book.' 6 "John Wand swore, That he has been servant to the respondents between three and four years, and that in the month of February or March 1771, he assisted at carrying a covered vessel from the ground story of the respondents' house up to the garret, which vessel, by the weight of it, he believed to be lead, and has seen the said vessel since that time: That at that time he bought about a pound weight of saltpetre by Mr. Stirling's order, and knows that some vitriol was made of the same, having heard Mr. Stirling say, that the said vitriol that was brought down was as good as any that had been made formerly, or that they had had formerly: That he is still engaged in the respondents' service in the works at Marytown, and knows that the lead vessel above mentioned, and which was formerly standing in Mr. Stirling's garret, was made use of at the said works: That he saw the vitriol above mentioned between the time that the vessel was carried up to the garret and the month of May thereafter, but cannot condescend more particularly upon the time.' "Besides this parole and written evidence,' (continues the statement in Stirling and Son's appeal case,) It is instructed, rebus ipsis et factis, that the respondents must have been in the knowledge of the use of vessels of lead in manufacturing oil of vitriol. For in Matthie the plumber's account, there are two pretty considerable articles for leaden vessels long before the date of the respondents' patent. The articles are : 1771. c. qr. lb. Jan. 19. To a lead vessel then at Marytown, 3 0 7, 28s. To solder for ditto, 0 0 10, 14d. 0 21, 3d. £. s. d. Ꮞ 5 9 8 0 11 5 3 29. To a small round lead vessel, 'These articles are over and above smaller ones, for which he swears he got ready money,' &c. "The above evidence, which, in order to save the trouble of reference, has been quoted at large from the Appeal Cases, seems enough to have established the fact, that the invention claimed by Roebuck and Garbett, had been known, and to a certain extent practised by others in Scotland, before the date of their patent. This therefore, it may be inferred, was one of the grounds on which the judgment of the House of Lords proceeded. "Besides this, it was in Roebuck's case admitted by the patentees themselves, that they had practised the invention for many years, before applying for |