WOOD, V.C. (June 8) said that he had consulted with the Master of the Rolls, and brought to his notice the case of In re the United Kingdom Life Assurance Company. The point referred to was there decided without argument; but, after fully considering the matter, his Lordship was of opinion, and his Honour agreed with him, that the assurance company ought to have their costs as between solicitor and client, but not charges and expenses. The words of the Trustee Relief Act, "Trustees, executors, administrators, or other persons having in their hands any moneys belonging to any trust whatsoever," were clearly wide enough to include a case such as the present, where equitable interests had been created, and it was not desirable to discourage the mode of proceeding by paying in under that act.

share of the testator's personal estate, and had made the order in respect of this share. The respondents, who were the petitioner's infant brother and sisters, had appealed against the order.

The only other property possessed by the petitioner was a reversionary estate tail in some real estate of which his father was tenant for life; but the father being a lunatic, the estate tail could not be barred without the consent of the Lord Chancellor. It was alleged that the petitioner was in indigent circumstances, and it was admitted that he could give no other security than a mere charge on a base fee.

Mr. G. N. Colt, in support of the motion, asked that the payment out of court might be suspended during the appeal, except upon satisfactory security for repayment being given by the petitioner. He referred

to

Ralli v. the Universal Marine Assur

ance Company, 31 Law J. Rep. (N.S.) Chanc. 313, 319.

Mr. Jessel and Mr. Waller, for the petitioner, submitted that the suspension of the payment would create great embarrassment. A recent application for maintenance to the Master in Lunacy had been refused on the ground of the petitioner's

The respondents to a petition upon which an order had been made for payment of money out of court to the petitioner, having appealed from the order, moved, on the ground of the indigent circumstances of the petitioner, to suspend the payment pending the appeal. The Court directed the petitioner to give the best security he could for the repayment of the money; and, on information that the appeal was fixed to be heard on a day close at hand, suspended the payment out of court until after such day.

This was a motion, on behalf of the respondents to a petition, that the payment out of court of a sum of 500l. which, by an order of Kindersley, V.C. had been ordered to be paid to the petitioner, might be suspended during the pendency of an appeal against the order. The Vice Chancellor had held the petitioner entitled, upon the construction of a will, to one-fourth NEW SERIES, 35.-CHANG.

sought to be suspended. The petitioner would give an ample undertaking to repay, and the best security he could upon his

interest in the real state.

KINDERSLEY, V.C. said that he thought that under the circumstances of the case he ought not to suspend the payment out, as asked; but the petitioner must give the undertaking, and such security as he could on the reversionary estate tail. However, as this was Saturday, and it appeared that the appeal was to be heard on the following Friday, he would further order that the 5007. should not be paid out till after that day.

Solicitors-Mr. A. D. Smith for petitioner ; Messrs. Kingsford & Dorman, agents for Mr. E. Watts, Hythe, Kent; and Messrs. Duncan & Murton, agents for Messrs. Callaway & Furley, Canterbury, for respondents.

5Q

Patent-Infringement-Entire Combina

tion-Mechanical Equivalent-Colourable Evasion - Patent Law Amendment Act, 1852, section 41.-Particulars of Breaches

Claim Chancery Amendment Act, 1858, sections 3, 5.-Trial of Facts without a Jury-Appeal from Order on Motion for a New Trial.

A patent for an entire combination is not infringed by a different combination, for the same object, of the same elements though important, or of equivalents for them, if not a mere colourable evasion or imitation :Semble, in considering the question of colourable evasion, the Court will look at the novelty of the object of the combination and of the parts combined.

The principle which protects a patentee against the use by others of mechanical equivalents is inapplicable to a case where the whole invention depends entirely on the particular machinery by means of which a well-known object is attained.

Plaintiff, by bill in Chancery, alleged an infringement of his patent. The patent was granted in 1854, and specified a combination of mechanism applicable to spinning mules; and the first claim was for "the novel construction, combination and application of mechanism hereinbefore described, whereby one half of the clutch- or catch box, hereinbefore described, or any mechanical equivalent therefor, is connected with or acts upon cams or other similar parts of mechanism direct." There were other claims, but in respect of these breaches were not alleged in the plaintiffs' particulars of breaches.

The defendant's patent, granted in 1860, specified a combination of mechanism which embodied the leading idea of the plaintiffs' patent, and by which one half of a clutchbox was made to act upon cams direct, and he adopted some of the elements combined by the plaintiff, but he disposed them in a different manner. These were important parts of the prior combination, and, though old mechanical contrivances, were new in respect of the particular mode in which the

plaintiff applied them; and the immediate object of their combination by him was new, viz., to make a clutch box act on cams direct. The effect brought about by the direct action of the clutch-box on the cams had long previously been produced, but less advantageously, by other contrivances of various kinds. The defendant's mode of combination effected the common object of each patent in a more beneficial manner than it was or could be effected by the mode of combination specified in the plaintiffs' patent, and it displayed an equal amount of inventive genius :—Held, first, that the plaintiffs were bound by the particulars of breaches delivered, and that the principle of the 41st section of the Patent Law Amendment Act, 1852, was applicable to trials in Chancery, in which particulars of breaches were ordered, as well as to trials at common law; secondly, affirming the judgments of Westbury, L. C. and of Wood, V.C., that the plaintiff's claim was limited to the entire combination claimed, as before described in his specification; thirdly, that the defendant's combination was not a mere colourable evasion, and that there was no infringement.

Held, also, that under the 3rd section of the Chancery Amendment Act, 1858, there is an appeal from any order made, either by the Court of Appeal in Chancery, or by the Court of original jurisdiction, upon a motion for a new trial of a cause, whether involving issues of fact or of law, where the same has been tried before a Judge in Chancery, either with or without a jury.

This was an appeal from a decree made by the late Lord Chancellor Westbury upon a motion for a new trial of the cause, which had been tried before Vice Chancellor Wood, and the question raised by this appeal was, whether the respondent had infringed the appellants' patent. The question was raised by one of five issues, which were tried by the Vice Chancellor without a jury, and which issue his Honour found in favour of the defendant, that there had been no infringement. His Honour's findings on the other four issues, viz., as to the validity of the patent, were in favour of the appellants, and he ordered that each party should pay to the other the costs of the issues found in the other's favour. Each party served notice of motion for a new trial, the defen

dant's motion being alternative in the event of the issue on infringement being found the other way. The plaintiffs had also served notice of motion for a decree, and their motion for a new trial and the motion for a decree were turned into one, and the decree of the Lord Chancellor was made upon all the motions, and in all respects affirmed the order of the Vice Chancellor. The argument before the Lord Chancellor and in this House was confined to the question of infringement.

The plaintiffs, now appellants, charged the defendant, now respondent, with having infringed a patent which had been granted in 1854 to one John Wain for improvements in machines for spinning or doubling cotton and other fibrous substances, which patent was then vested in the appellants.

In order to explain the nature of the invention on which the appellants relied, and of the alleged infringement by the respondent, it is necessary to make some mention of the state of the machinery, to which the inventions were respectively applied, at the respective times of the alleged invention and of the alleged infringement. The machines referred to are called "selfacting spinning mules," and they spin cotton into yarn or thread. The cotton is first by a preparatory machine wrought up into what are called "rovings," that is, soft, thick threads or coarse cords of loosely adhering cotton fibres, with but little tenacity, strength or hardness. These rovings are loosely wound round large bobbins, and the object of the "mule" is to convert these soft, coarse rovings into tough, fine yarns, out of which fabrics may be subsequently woven.

The "mule" consists of two parts: one part is stationary, and is called the "headstock"; the other is movable, and is called "the carriage." The bobbins with the rovings are placed upon the stationary part, and the ends of the rovings are passed between several successive pairs of rollers moving with respectively increased velocities, so that as the rovings pass between each pair of rollers they become elongated and attenuated, and are rendered tougher and harder. The ends of the rovings as delivered by the last and quickest rotating pair of rollers are, by hand, attached to "spindles," or small metallic rods, which are

mounted on the carriage. The carriage successively runs out or recedes a certain distance from the headstock, and then runs in or returns to it. These movements are called respectively the " run out" and the "run in," and a run out and a run in together make "a stretch." The rollers, which are attached to the headstock, only revolve while the carriage is performing the run out. While the carriage is performing one stretch, the rovings undergo the following four or five distinct operations: 1. "The drawing out." This consists in the elongation of the rovings by the revolving of the rollers and by the run out of the carriage carrying with it the spindles, which rotate rapidly, thus at the same time both stretching and twisting or spinning the rovings into yarn or thread. 2. "The twist at the head." This consists in the continuance of the rotation of the spindles for a time after the motion of the carriage and rollers has been stopped to put an extra twist in the thread or yarn. 3. "The backing off." This consists in giving to the spindles a reverse action, so as to unwind a portion of the thread which had been previously spun and wound round the shank of the spindle. This movement is necessary in order that the thread may be put into a proper position for the performance of the next operation, viz., 4. "The winding on," which consists in coiling in a peculiar manner round the shank of the spindles the yarn or thread which has been just spun by the last drawing out and twist at the head. Besides the above, there is a fifth operation sometimes required when a superior kind of thread is manufactured. The operations above explained, numbered 1, 3 and 4, are required for making "weft" yarn, and all four are needed when "warp" yarn is made.

The run out and the run in of the carriage is immediately brought about by means of a constantly rotating shaft, and it is deemed important that the motive power by which the four or five operations or "changes," as they are called, are effected should be derived from the same shaft as that which occasions the run out and the run in, or at all events from the same motive power as that which turns that shaft. The changes obviously must be made at intervals, but the motive power is continuous; thus the problem was to obtain occasional pauses in

the action of certain parts of the machinery without interfering with the continuous action of the motive power. Different mechanics have done this in different ways. In 1825 one Roberts perfected a patent by which the changes were effected by a shaft with cams upon it. This shaft was set parallel to the shaft which worked the carriage, and it received its motion from it by means of friction rollers fitted on each shaft, so that, as the rollers were in close contact, when the roller on the one shaft revolved with the shaft to which it was fitted, the roller on the other shaft, that with the cams upon it, revolved also. But the roller on the working shaft had spaces left in it, so that at certain intervals in every revolution it did not touch the roller on the parallel shaft; and thus, though itself perpetually rotating, it produced only a broken or intermittent rotation in the cam-shaft; a rotation broken at intervals. But it was found that the friction rollers were liable to slip. Then cog-wheels were substituted for them, the cogs on what we may call the driving cog-wheel being at intervals cut out, so as to supply the purposes of the spaces left in Roberts's friction rollers; but it was found that the cogs broke. Then, in 1849, a patent was taken out by Messrs. Lakin & Rhodes. They secured that the changes should be effectually brought about by a rotation broken at proper intervals and communicated by the constantly rotating shaft, but they were obliged to give up the shaft with cams upon it, and to supply its place with a complicated system of levers, rods and pulleys. Of these there were three combinations, each of which was set in action by one eccentric boss affixed to one half of what is called a clutch-box: the clutchbox being the contrivance by which they superseded the spaced friction rollers of Roberts; the eccentric boss superseding the cam-shaft of Roberts being, in fact, itself a kind of master cam.

The clutch-box is a very old mechanical contrivance; the principle of it is familiar to the public in the form of the ratchet watch-key; it consists of two discs with indented or serrated faces, which fit into one another. The discs are placed on a shaft, on which one of them can slide, but it is kept in its proper place by a helical

spring coiled round the shaft. When by force of the spring the clutch-box is closed, the two halves revolve together as one disc; one half cannot be turned without the other; but when the action of the spring is overcome by any means, and the sides of the box are parted, the box being open, the discs are wholly unconnected, and either may be turned independently of the other. Lakin & Rhodes's patent worked thus: they fixed on to the constantly rotating shaft one half of the clutch-box with the helical spring in such a manner that the half must constantly revolve with the shaft, but it could move or slide backwards along the shaft if the force of the spring could be in any way overcome. The other half of the clutch-box-that to which the eccentric boss was attached-they put on to the same shaft, and this half had no lateral or horizontal motion, but it was fitted so that it could revolve loose on the shaft, or rather the shaft could rotate within it without causing it to rotate. Through a hole in this latter half of the clutch-box was passed a pin loosely fitting in the hole, and being a little longer than the thickness of the half of the clutch-box, so as to project on one side or the other, and there was fixed over against this side of the clutchbox and parallel to it a disc or plate having on its proximate face a spiral incline; this disc with the incline upon it was stationary, but it communicated a motion to the pin; for when the clutch-box was in gear the pin, being carried round with it, pressed with one of its ends against the inner face of the other half of the clutch-box, and with the other end against the face of the plate with the incline upon it; therefore as this latter end travelled up the incline the pin was necessarily pushed in a horizontal direction, and its other end pressing against the inner face of the other half of the clutch-box, the pressure of the helical spring was overcome, that side of the box was pushed apart from the other, and the box was open; the instant the clutch-box is opened the half which carries the loose pin ceases to rotate. The pin was kept in this position holding the clutch-box open as long as was necessary by a kind of trigger-catch. When released the pin passed at once to the bottom of the incline; the pressure of the helical spring instantly

forced the box into gear again, and as both of the halves began again to rotate, the pin was again carried up the incline and the box was again forced open. Thus the clutchbox put itself out of gear once in every complete revolution.

The eccentric boss of Lakin & Rhodes was a very bad substitute for the camshaft of Roberts, with its cams upon it; but their clutch-box was a very good substitute for the friction spaced rollers of Roberts. The objections to it were twofold: one being that as it had only one boss, and as there were three combinations of levers and pulleys to be set in motion, three entire revolutions of the clutch-box were required in each stretch, and it was desirable that all the changes should be performed in one single revolution; another was, that by their arrangement they were obliged to dispense with the cam-shaft of Roberts's.

Wain's patent was intended to remove these objections. He took the cam-shaft of Roberts, but he made it hollow, and passed through it the constantly rotating shaft; then he took the clutch-box of Lakin & Rhodes with the shifting pin, and he placed one half on the hollow cam-shaft, and the other on the solid shaft which rotated within it; but instead of the fixed disc with one incline upon its face spirally ascending through the whole of the circle, he applied a plate, which had upon its face two inclines, each of only a portion of a circle, one on the upper portion, the other on the lower portion of the plate, and the plate itself he fixed to the end of a long lever, so that it could be moved vertically up or down; and thus the two inclines might be presented to the pin in the course of a single revolution. The lever itself was made to move up or down by a motion derived from the horizontal or oscillating motion of the carriage. The plate, with the inclines, was only movable vertically; it had no other motion; and the hollow cam-shaft, with the solid constantly rotating shaft inside it, passed through a hole in the centre of the plate made oblong to permit of the vertical movement. Thus, when the plate at the end of the lever was depressed, the incline upon the upper part of the plate was presented to the pin as it was being carried through the upper portion of its circle;

when the end of the pin reached the top of the incline, it met with a wall or stop; when the box had been held open long enough the lever elevated the plate, the pin was immediately released, the clutch-box was put into gear, and the second or lower incline was placed in position ready to meet the pin as it should be performing the lower part of its circle. Thus, Wain effected two openings of the clutch-box in one revolution of the shaft, and so provided for two of the necessary changes. A third change he provided for in a different way. also got rid of the complicated system of levers and pulleys used by Lakin & Rhodes, and he replaced them by a cam-shaft, resembling the solid cam-shaft of Roberts in its general character, the only difference being that Wain's shaft was hollow and surrounded the constantly rotating shaft instead of lying parallel to it. But no more than three changes could be got out of Wain's machine; it therefore could not be used where superior thread was required.

He

In 1860 the respondent Platt took out his patent. His invention may be described as follows: He took the clutch-box of Lakin & Rhodes, and he took the cam-shaft of Roberts; but instead of making the cam-shaft rotate by a force communicated to it from the constantly rotating shaft, as Roberts did with his parallel shafts and friction pulleys, or as Wain did with his solid shaft and hollow shaft connected by the clutch-box, or as Lakin & Rhodes did with their master-cam or eccentric boss attached to one half of the clutch-box, the other half of which was fixed to the constantly rotating shaft, and instead of putting them "end to end on" each other, as he might have done in the same straight line, and joining their ends by fixing one half of the clutch-box to the end of the one shaft and the other half to the proximate end of the other shaft, so that when the box was in gear the two shafts should revolve as one shaft, he placed one half of the clutch-box in direct communication with the large cogged wheel, which caused the perpetually rotating shaft to revolve, and the other half of the clutch-box he fitted to the cam-shaft with a helical spring, so that it might slide or shift on the cam-shaft horizontally. But the peculiarity of his invention was the mode by which he caused the clutch-box to