of opinion that the patent was void in law. His Lordship was then pressed to dispose of the other four issues; but he was of opinion that it was useless to inquire into the novelty and infringement of a void patent, and he therefore, without argument, made the decree appealed from, declaring the patent to be bad and void in law, and reversing the findings of the Vice Chancellor upon the other issues. So far as respects this latter part of the decree, it is impossible that it can stand; but this will not be of much importance, supposing your Lordships should be of the same opinion as the Lord Chancellor as to the invalidity of the patent.

This question turns upon the description of the patentee's invention contained in his specification. The patent is for "Improve ments in the preparation of red and purple dyes." The specification thus declares the invention: "I mix aniline with dry arsenic acid, and allow the mixture to stand for some time, or I accelerate the operation by heating it to or near to its boiling point until it assumes a rich purple colour."

The construction of a specification, like other written documents, is for the Court. If the terms used require explanation, as being terms of art or of scientific use, explanatory evidence must be given, and with its aid the Court proceeds to the office of construction. In this case there is no necessity for scientific evidence, as there can be no doubt of the meaning of the language used by the patentee. His invention, as he describes it, is the mixing aniline with dry arsenic acid, for the purpose of producing a rich purple colour, and he adds, "Or I accelerate the operation by heating it to or near its boiling point." In this description the operation itself is mixing aniline with dry arsenic acid; the addition of heat is described as merely accelerating that operation. There is nothing upon the face of the specification to shew that the invention described is not in every part of it the subject of a patent. But it was proved in evidence, and admitted by the plaintiff, that mixing aniline with dry arsenic acid without the application of heat would produce only a faint colour, quite unfit for dying purposes.

It was contended, on the part of the appellants, that the word "or in the spe

cification ought to be read "and"; but there is nothing in the terms of the description, nor upon the face of the specification itself, justifying the Court in thus changing the form of the expression. It was also said that there was a considerable body of evidence to shew that skilled persons, to whom the specification must be taken to be addressed, found no difficulty in working it out, and applied heat in the process as a matter of course. This, however, cannot have any effect upon the construction of the specification. It merely proves that the description, though erroneous, is not likely to mislead skilled workmen. That the description may induce the necessity of experiments appears from the evidence of an experienced chemist, who says, “If I found that there was no action without heat, I should heat it immediately."

The construction of the specification remaining untouched by the evidence, and the Court being informed that the invention which is claimed is incapable of producing the result intended, it had no other course to pursue than to pronounce the patent to be void.

It is said that the finding of the Vice Chancellor upon the issue as to the specification being compounded of law and fact, and evidence being necessary in order to enable him to arrive at a conclusion upon it, the Lord Chancellor, upon appeal, had no power to declare the patent to be void, but could only direct a new trial. In support of this proposition the Chancery Regulation Act, 21 & 22 Vict. c. 27. was referred to. The 5th section of that act is the one applicable to this case, as the trial took place before the Vice Chancellor without a jury. By the proviso at the end of that section " Any person may apply for a new trial either to the Judge before whom the trial was had or to the Court of Appeal in Chancery." Where the trial is before the Judge alone, of course he has to decide both the law and the fact. If one of the issues raised before him involves a question of law, the form of his finding must be the same on that issue as on any of the issues of fact. Upon an application for a new trial to the Court of Appeal, if that Court differs with the Judge upon the question of law can it be said that the Appeal Court must be compelled to send the case

down again for a new trial, and is not at liberty to decide the question itself? In this case the issue upon the specification was in part a question of law, and the fact which shewed its invalidity was not only proved, but admitted by the appellants. It would be the height of absurdity to send the case to a new trial merely to try an undisputed fact upon which the construction of the specification does not depend, but which shews that the patent is void.

I am of opinion that the Lord Chancellor was quite justified in disposing of the issue upon the validity of the specification, as he did; and I think that the proper mode of dealing with his decree will be by affirming that part of it which declares the patent to be bad and void in law, and to reverse it so far as it orders that the findings of the Vice Chancellor be reversed.

LORD CRANWORTH.-I entirely concur with my noble and learned friend. I think that the decree of the Lord Chancellor Westbury was in substance perfectly correct, although in point of form I agree with my noble and learned friend on the woolsack in thinking that that part of the decree which reversed what are there called the findings of the Vice Chancellor, was ultra vires, something which the Lord Chancellor had no power to do.

There is no doubt in this case as to the construction of the specification. It specifies two modes of obtaining the mixture which produces the dyes; one with and the other without the agency of heat. It was admitted on the motion before Lord Westbury, and it was also admitted on the hearing of the appeal before your Lordships, that no practical result can be obtained without the heat. This, clearly, makes the specification bad; it specifies two processes, whereas only one is practicable.

It is no answer to say, as was said at the bar, that any practical workman would know that the cool process was bad, and so would adopt the other. It may be that in construing a specification, the Court may sometimes feel justified in understanding the language not according to its ordinary meaning, but in the mode in which it would be understood by skilled workmen called upon to act according to its direc

tions, but this does not warrant us in giving effect to a specification claiming two things, one practicable, and the other impracticable, because a skilful workman would know that one of them could not be acted upon, and so would confine himself to the other. This would not be to construe a specification according to the language of workmen, instead of according to our ordinary language; but to reject something claimed by the patentee, because a workman would know that it was an impracticable claim.

The Vice Chancellor found all the issues for the plaintiff. What, then, was the Lord Chancellor to do on a motion for a new trial? The Vice Chancellor found, substantially, that the specification was good for the cool as well as for the hot process. But it is admitted that this is not so; and this was admitted before the Lord Chancellor. It was admitted that the cool process produces no practical result. In such circumstances, the Court cannot be bound to send back to a new trial a matter which, on the face of it, it was obvious could lead to no result. The result must be to find the issue, as to the specification, for the defendant.

This seems to me to dispose of the whole case. I think, therefore, that the Lord Chancellor was right in declaring the patent to be bad and void in law. I think he was wrong in reversing the findings of the Vice Chancellor, for he could not do that.

I concur with my noble and learned friend therefore in thinking that the course your Lordships ought to adopt is to affirm the decree upon the first point, reversing it upon the rest. Nothing need be said about the costs, because there has been no litigation.

That part of the decree which declares the patent to be bad in point of law, affirmed. That part of the decree which orders that the findings of the Vice Chancellor be reversed, reversed; and with this direction the cause remitted.

Solicitors-Messrs. H. & F. Chester, for appellants.

Company-Winding-up-Shareholder— Special Contract to take Shares-Contributory.

S. wrote to the secretary of a company saying that he was prepared to apply for 2,000 shares upon being assured that he should receive contracts for the supply of rolling-stock. Subsequently an interview took place, after which the secretary wrote to S, saying that the board of directors had agreed that if S. took the shares all calls upon them should be placed to account, instead of S. being called upon to pay them, and that S. should have the first contract. Upon this S. made a formal application for 2,000 shares, engaging to pay "all future calls when required; value in rollingstock as arranged"; and he paid the deposit of 11. per share. The shares were allotted, but no notice of the allotment was given to S, nor were any calls made upon him. The deposit of 2,000l. was afterwards returned:

Held, that no binding agreement was entered into by S. to take the shares, so as to render him liable on the winding-up of the company as a contributory.

This was an appeal by the official liquidator of the company from an order of Wood, V.C., removing Mr. Shackleford's name from the list of contributories.

The company was incorporated in 1862, under the Joint-Stock Companies' Act.

Mr. Shackleford having received a prospectus, wrote, on the 26th of July, to the directors, as follows: "I have read the prospectus of your company with much satisfaction, and think the opening for a successful business is guaranteed by the influence your board will command among railway interests, I am prepared to send in my application for 2,000 shares, accompanied with a cheque for 2,0007., upon your assuring me that you will use your best endeavours to give our firm the contract for supplying rolling stock, and undertaking that, in the event of such an arrangement not being carried out, the shares shall not be allotted to me, and the deposit, consequently, returned."

Subsequently, according to Mr. Shackleford's evidence, an agreement was verbally made between himself and the secretary that he should take 2,000 shares, but that no further payment in money, after the 17. per share, payable on application, should be demanded in respect of such shares, and that all further calls were to be paid by him in rolling stock supplied by his firm.

On the 22nd of August the secretary wrote to Mr. Shackleford, as follows: "At our board to-day, the question of your sending in an application for 2,000 shares was discussed, and it was decided that, if you did so, you should have the first contracts of the company, and that all calls made should be placed to your account with the company, instead of your being called upon to pay them." Thereupon Mr. Shackleford paid the deposit upon 2,000 shares, and wrote to the company the following letter, dated the 23rd of August: "Having paid 2,000l. to your bankers, I request you will allot to me 2,000 shares in the RollingStock Company of Ireland (Limited), or any less number, which I hereby agree to accept, and to pay the further sum of 14. per share on the number allotted to me, and all future calls when required, value in rolling stock as arranged; and I further authorize you to insert my name on the register of shareholders of the company for the number of shares that may be allotted to me."

The shares were allotted to him by the directors, but no notice of the allotment was sent to Mr. Shackleford; his name was entered upon the register of shareholders for 2,000 shares. He did not pay the 17. per share payable upon allotment, nor was he applied to for it; neither was any notice of subsequent calls sent to him. No order for rolling-stock was given to him or his firm. Subsequently an attempt was made by the directors to amalgamate the company with another company, the General Rolling-Stock Company (Limited), which attempt being ultra vires was abandoned, but an arrangement was made that shareholders in the Irish company, if unwilling to take shares in the General Rolling-Stock Company, should receive back the amount of their subscriptions. Under this arrangement Shackleford received back the 2,000/ which he had paid. Both of the companies

were afterwards ordered to be wound up by the Court, and the official liquidator of the Irish company sought to include Mr. Shackleford's name in the list of contributories for 2,000 shares. Vice Chancellor Wood having ordered his name to be removed from the list, the present appeal was brought.

Mr. Giffard and Mr. Lindley, for the appellant, contended that a complete contract to take the shares had been entered into, and although, if orders for rollingstock had been given, the price would have had to be set off against the calls upon the shares, yet the liability in respect of the shares was fully incurred, and full authority was given for the insertion of Mr. Shackleford's name in the register; the arrangement as to orders being collateral. They cited

In re the Universal Provident Associa

tion, Daniel's case, 26 Law J. Rep. (N.S.) Chanc. 563; s. c. 23 Beav. 568; 1 De Gex & J. 372. In re the New Theatre Company, Bloxam's case, 33 Law J. Rep. (N.S.) Chanc. 574.

In re the Cosmopolitan Assurance Company, Nickoll's case, 24 Beav. 639. The Companies' Act, 1862, ss. 16, 70, 75.

And they commented on

In re the Universal Salvage Company, Woodfall's case, 3 De Gex & S. 63. In re the Sunken Vessels Recovery Company, Wood's case, 28 Law J. Rep. (N.S.) Chanc. 899; s. c. 3 De Gex & J. 85.

Mr. Rolt and Mr. G. Hastings, for the respondent, contended that either there was no concluded agreement to take shares

In re the Adelphi Hotel Company, Best's case, 34 Law J. Rep. (N.s.) Chanc. 523; s. c. 2 De Gex, J. & S. 650; or, if there was a complete agreement, it was one such as might lawfully be made, that no money liability was to be incurred, but calls were to be paid in rolling-stock or not at all. The cases of

In re the Universal Salvage Company,
Woodfall's case, ubi supra.

In re the Sunken Vessels Recovery Com-
pany, Wood's Case, ubi supra.

NEW SERIES, 35.-CHANO.

were exactly in point, and governed the present case.

Mr. Giffard, in reply.

LORD JUSTICE KNIGHT BRUCE said-In order that a contract may be complete between two parties, they must agree to the same set of terms. The evidence in this case does not prove, to my mind, that the parties to the alleged contract ever did so agree. Therefore, the case of the appellant wholly fails, and I think that the Vice Chancellor could not have done otherwise than he did.

LORD JUSTICE TURNER.-I am not so clear as my learned Brother is upon this case, although, on the whole, I incline to the opinion that the appellant has not established his case. Mr. Giffard rested his case upon the letter of the 22nd of August as being a simple acceptance of the offer made by Mr. Shackleford. I cannot quite arrive at that conclusion. The letter was as follows-[His Lordship read Mr. Shackleford's letter].-The effect of that letter would be, that if orders were given of a less value than the amount of the calls, Mr. Shackleford would be left liable for the difference. Mr. Shackleford seems so to treat it in his answer. He does not fall in with the view expressed by the secretary; but he must, I think, looking at the facts of the case, be considered as insisting that all calls were to be paid in rolling-stock, and not merely the excess I have referred to. There was therefore a variation of the terms of the secretary's letter, which ought to have been accepted to make a concluded agreement. As to the authority given by the respondent to place his name upon the register, this must be read in connexion with the other facts. The order will then be affirmed. Costs of both parties out of the estate.

Solicitors-Messrs. Ashurst, Morris & Co., for appellant; Mr. J. T. Vining, for respondent.

5 M

Companies' Act, 1862 Winding-up Petition-Practice.

The Court will not interfere in the winding-up of a company, where the number of shareholders is very small, and no difficulties exist in the way of a voluntary winding-up.

This was a petition praying for the compulsory winding-up of the above company, or for a voluntary winding-up under the supervision of the Court. It appeared that the company consisted of only seven persons, and that out of 20,000 shares only 590 had been taken up, of which the petitioner held 200. No business had ever been transacted by the company since its formation.

There were no debts or liabilities. Some arrangements had been made for an amalgamation with the Insurance Corporation, under which company the petitioner was an underwriter. Since the presentation of the petition a resolution for a voluntary winding-up had been passed.

ties existed in the way of voluntary winding up. The present case came entirely within the principle of that decision, the number of shareholders being smaller (seven, instead of nine), and there being no evidence or allegation in the present petition to shew the existence of any debt at all, whereas in the Natal case a deficiency was anticipated in respect of one alleged debt. The interference of the Court in the present case was also further precluded by the contemplated amalgamation of the company with the Insurance Corporation.

Petition dismissed, with costs.

Solicitors-Messrs. Ashurst, Morris & Co., for petitioners; Messrs. Howard, Dollman & Lowther, for the company.

This was an adjourned summons for the production of certain documents in respect of which the defendant claimed privilege.

The suit was instituted for an equitable ejectment, the question in dispute being the right to work certain coal mines under the "Gelly" Mountain, in Glamorganshire, and an adjoining common, which the defendants, who were in possession, claimed, as forming part of a manor whereof they were lords.

The case is reported, on a previous summons for the production of documentsante, 400.

Among the documents now sought to be protected were

First, certain letters, having reference to the matters at issue in the suit, which had been written by one defendant to his codefendant, with directions to transmit them

* See ante, 400.