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Analytical Digest of Cases : Law of Patents.
ANALYTICAL DIGEST OF CASES,

REPORTED IN ALL THE COURTS,

LAW OF PATENTS.

chanical equivalent, imitates a part of such DISCLAIMER

combination which is new and useful, is guilty Admissible in evidence, though filed and en-Gr

of an infringement of the patent. Newton v. rolled after issue joined.-Title of patent in ac

"Grand Junction Railway Company, 5 Exch. R. cordance with specification.-A count in a scire

331.

2. Construction of specification.- In case for facias to repeal a patent granted to the defend-ltheir ant“ for improvements in instruments used for

the infringement of a patent “for improvewriting and marking, and in the construction

ments in giving signals and sounding alarums of inkstands," contained suggestions (amongst

in distant places, by means of electric currents others) of want of novelty and utility in “a

transmitted through metallic circuits,” the

"I breaches alleged in the declaration were, that certain part” of the said invention. The objections filed with the declaration, pursuant to

the defendant had used and counterfeited the the 5 & 6 Wm. 4, c. 83, s. 5, pointed out the

said invention: the evidence was, that the desixth claim in the specification

fendant had used or counterfeited part only.

(amongst others) as wanting novelty and being useless.

The specification described nine several imThe pleas traversed all the suggestions in the

provements : Held, that the declaration, in

speaking of the said invention, was to be uncount. After issue joined, the defendant filed a dis

derstood as charging the using or counterfeitclaimer, under the 5 & 6 Wm. 4, c. 83, s. 1,

ing of the said nine improvements, and that it of the 5th, 6th, 7th, and 8th claims mentioned

was sufficiently proved by showing that one of in his specification. These claims related to

them had been used. pens and to instruments used for marking with ..

The patentees' invention was described, as a stamp. Those which remained untouched

well in the title of the letters patent as in by the disclaimer were for improvements in

the specification, as an invention of “improvepen-holders and pencil-cases and in the con

ments in giving signals and sounding alarums struction of inkstands.

in distant places by means of electric currents Held, 1st, that the disclaimer, though filed lão

| transmitted through metallic circuits.The and enrolled after issue joined, was admissible

defendant, it appeared, arrived at the same in evidence, and was to be read as part of the

results by using a circuit not wholly or conoriginal specification, and need not be pleaded

itinuously metallic throughout, but by using puis darrein continuance.

the earth to an extent nearly amounting to the 2ndly, That the objections filed pursuant to

half, as the connecting medium between two s. 5 were not part of the record, so as to form

portions of the metal. It appeared in evidence, parcel of the issues to be tried.

that after the grant of the letters patent, it had 3rdly, That the disclaimer being received,

been discovered that a large portion of the the defendant was entitled to a verdict upon

wire through which the electric current reall the issues.

turned to the battery might be dispensed with, 4thly, That the title of the letters patent i by plunging into the earth the two ends of was satisfied by the specification as amended

i wire which would have been joined by the by the disclaimer. Regina v. Mill, 10 C. B.

parts left out, the electric current passing 379.

from one end of the wire to the other as Case cited in the judgment: Perry v. Skinner, kept up : Held. that, though a circuit upon

effectually as if a continuity of wire had been 2 M. & W. 476.

this principle would not be wholly metallic, IMPROVEMENTS ON KNOWN PROCESS.

yet, insomuch as it was so in all that part A claim for a patent for improvements in which formed the substance of the patentee's the mode of doing something by a known pro- claim,-viz., that part which gave the signals, cess, is sufficient to entitle the claimant to a it amounted to an infringement of the på. patent for his improvements, when applied tentees' right. either to the process as known at the time of The patent was for an improved method of the claim, or to the same process altered and giving signals, by means of several wires and improved by discoveries not known at the time conveying needles pointing to letters. The deof the claim, so long as it remains identical fendant had used one wire, and had made siga with regard to improvements claimed, and nals by counting the deflections of a needle o? their application. Electric Telegraph Company needles, which was found by the jury to be a v. Brett, 10 C. B. 838.

different system from that of the plaintiffs: See Infringement.

Held, that, notwithstanding this finding, the INFRINGEMENT.

plaintiffs were entitled to the verdict; for, that 1. Combination of new and old materials.- the specification showed that the patent was not Where a patent is granted for a combination for a system of giving signals, but for certain of several things, some of which are old and distinct and specified improvements, compresome new, the question of novelty depends hending those in question,-the system being upon whether that which is claimed in the spe- described only for the purpose of explaining cification as a whole is new.

the improvements claimed. And a person who, by some chemical or me- One of the patentees' improvements was de:

Analytical Digest of Cases : Law of Patents.

. 301 scribed as an improvement “whereby a set of necessarily tend to destroy the design or combined conducting wires, as aforesaid, hav- tracing so obtained in the camera obscura.” ing a voltaic battery, and a set of buttons or It then proceeded to give a description of the finger keys, and also a dial with vertical first operation,-preparing the silver surface of needles, for giving signals, as well as an appa. the plate; the concluding part of which diratus for sounding alarums at each end of the rected that nitric acid dissolved in water set, may also have duplicates of such dials, should be applied three different times, the with needles and apparatus for alarums, at inter-plate being each time sprinkled with pounce mediate places between the two ends, all such and lightly rubbed with cotton; addingduplicates operating simultaneously with each “ When the plate is not intended for immeother, and with the two end dials and alarums, diate use or operation, the acid may be used to give like signals and to sound like alarums." only twice upon its surface after being exposed The jury found that “the sending of signals to heat: the first part of the operation, that is, to intermediate stations was new to the plain the preparation as far as the second application tiffs," that is, was a new invention of the pa- of the acid, may be done at any time; this tentees : Held, that this was the fit subject of a will allow of a number of plates being kept patent ; for, though it might be probable, à prepared up to the last slight operation : it is, priori, that a circuit having a distant coil could however, considered indispensable, thai, just have intermediate ones also, which would ope- before the moment of using the plates in the rate in the same manner, still it was a matter camera, or the re-producing the design, to put of experiment that it could practically be done. at least once more some acid on the plate, and

Held, also, that the patentees' claim was not to rub it lightly with pounce, as before stated; affected by the circumstance of the defendant's finally, the plate must be cleaned with cotton having improved upon it, so as to enable those from all pounce dust which may be on the surat the intermediate stations to send as well as face, or its edges." In a subsequent part of to receive communications. Electric Telegraph the specification, having described the second Company v. Brett, 10 C. B. 838.

operation, - viz., the application of the iodine, See Improvement ; Specification, 3.

the inventor observed : -“ After this second REPEALING PATENT.

operation is completed, the plate is to be Sci. fa.Plea in abatement.--Assignment of

fpassed to the third operation, or that of the share.-In sci. fa. against A. and B. to repeal a

camera obscura ; whenever it is possible, the patent granted to A. and B., A. cannot plead in /

one operation should immediately follow the abatement that B. assigned all his share and

other," interest in the patent to A., before the writ was

Held, that, taking the whole specification sued out, and has not since had any interest

together, the direction as to the third applicatherein.

tion of acid, was not to be understood to be a Per Lord Campbell. C. J. and Erle. J. 1e direction to apply the acid after the second in fact, the party having no interest was joined

; operation,-viz., the coating the plate with in order that he might collusively prejudice the

iodine,—which, it was proved, would render other defendant, application should be made to

the whole process abortive, but to apply it as the Court for remedy, as against an abuse of

part of the first operation; and that the speci

fication gave sufficient information to an opeprocess. Regina v. Betts, 15 Q. B. 540.

rator of reasonable skill. Beard v. Egerton, 8 SPECIFICATION.

C. B. 165. 1. Description of mode of conducting opera- | Cases cited in the judgment : Russell v.Cowley, tion.-A specification of a patent for“ a new 1C. M. & R. 864; Neilson v. Harford, 8 M. and improved method of obtaining the spon & W. 825: M'Alpine v. Mangnall, 3 C. B. taneous re-production of all the images re 496. ceived on the focus of the camera obscura,” in 2. Construction of.-In the construction of describing the process, stated it to be divided a specification, the whole instrument must be into five operations :-“The first consists in taken together, and a fair and reasonable inpolishing and cleaning the silver surface of terpretation given to the words used in it. the plate, in order to properly prepare or Beard v. Egerton, 8 C. B. 165. qualify it for receiving the sensitive layer or 3. Combination of new and old machinery.coating (iodine) upon which the action of the Infringement.-In the specification of a palight traces the design; the second operation tent for “ improvements in looms for weavis, the applying that sensitive layer or coating ing," the plaintiff declared that his improveto the silver surface; the third, in submitting ments applied to that class of machinery in the camera obscura the prepared surface or called power-looms, and consisted in a novel plate to the action of the light, so that it may arrangement of mechanism, designed for the receive the images; the fourth, in bringing purpose of instantly stopping the whole of out or making appear the image, picture, or the working parts of the loom whenever the representation, which is not visible when the shuttle stops in the shed.” He then described plate is first taken out of the camera obscura ; the manner in which that was done in ordinary the fifth and last operation is, that of removing looms, and proceeded thus :-" The principal the sensitive layer or coating, which would defect in this arrangement, and which my imcontinue to be affected and undergo different provement is intended to obviate, is the frechanges from the action of light, - this would quent breakage of the different parts of the 302 Analytical Digest of Cases : Law of Patents.Bankruptcy and Insolvency. loom, occasioned by the shock of the lathe or view to make a trader a bankrupt, unless he slay striking against the 'frog,' (which is pays or gives security, &c., perjury may be fixed to the framing). In my improved ar- assigned upon it, notwithstanding the alterarangement the loom is stopped in the follow- tions introduced by Stat. 5 & 6 Vict. c. 122, ing manner :-I make use of the 'swell' and as to this mode of proceeding against a trader. the 'stop-rod finger' as usual; the construc- And that tion of the latter, however, is somewhat modi. Such an affidavit falls within sect. 67 of fied, being of one piece with the small lever Stat. 5 & 6 Vict. c. 122, which provides, that which bears against the swell; but instead of all affidavits made under any statute "relating its striking against a stop or frog' fixed to to bankrupts" may be sworn before a registhe framing of the loom, it strikes against a trar or deputy registrar of the Court of Bankstop or notch upon the upper end of a vertical ruptcy. Regina ". Dunn, 12 Q. B. 1,026; lever, vibrating upon a pin or stud. The lever Dunn v. Reginam, ib. 1,031. is furnished with a small roller or howl, which 2. Reasonable and probable cause.-Costs.acts against a projection on a horizontal lever, Under Stat. 12 & 13 Vict. c. 106, s. 86, a causing it to vibrate upon its centre and throw plaintiff who has made an affidavit of debt a clutch-box (which conducts the main driving against a defendant, a trader, and recovered pulley to the driving shaft) ont of gear, and less than the amount sworn to, will be ordered allows the main driving pulley to revolve loosely to pay the costs to defendant, as having made upon the driving shaft at the same time that a the affidarit without reasonable or probable projection on the lever strikes against the 'spring cause, if he has sworn to his own claim withhandle,' and shifts the strap : simultaneously out allowing for a counter-claim of defendant with these two movements the lower end of the arising on the same transaction Marshall v. vertical beam causes a break to be brought in Sharland, 15 Q. B. 1,051. contact with the fly-wheel of the loom, thus instantaneously stopping every motion of the

ASSIGNEES' RIGHTS. loom without the slightest shock.” After the

1 1. Set-off. - Mutual credits. A plea of date of the plaintiff's patent, the defendant mutual cred

atent, the defendant mutual credit hy way of set-off, cannot be obtained a patent for improvements in and pleaded to a declaration by assignees, charging applicable to looms for weaving ;" and amongst th

amongst the defendants with having received a sum of them he claimed a novel arrangement of appa- money from the bankrupt for the purpose of

us for throwing the loom out of gear when meeting a certain acceptance, and neglecting he shuttle failed to complete its course. Li so to apply it, whereby the bankrupt's estate the defendant's apparatus, the clutch-bor was sustained damage,-the claim being for tirnot used; but, instead of it. the stop-rod liquidated damages. Bell v. Carey, 8 C. B. finger acted on a loose piece or sliding frog ; : 8 and instead of a rigid vertical lever, as in the Cases cited in the judgment: Drake v. Beckplaintiff's machine, the defendant used an elas. bam, 11 N. & W.315; 2 H. of L. 579; Mar. tic horizontal lever, and by reason of the pin

zetti v. Williams, 1 B, & Ad. 415. travelling on an inclined plane, the break was! 2. Action against attorneys for negligence applied to the wheel gradually, and not simul- passes to assignees.-A., a beneficed clergytaneously. The jury found that the plaintiff's man, brought case against his attordeys for arrangement of machinery for stopping looms having, through their negligence and want of by means of the action of the clutch-box, in skill, permitted a writ of sequestrari facias to combination with the action of the break, was remain in force against him longer than was new and useful; also, that the plaintiff's ar- i necessary, whereby A., during that time, lost rangement of machinery for bringing the break the rent, tithes, and profits of his living : Hell, into connexion with the fly-Ivheel, was new and that this was a cause of action which passed to useful: and that the defendant's arrangement 4.'s assignees, upon his insolvency. Wetherell of machinery for the latter purpose was sub- V. Julius, 10 C. B. 267. stantially the same as the plaintiff's; Held, i Cases cited in the judgment : Rogers v. Spence, upon these findings,-1st, that the specification 12 Cl. & F. 700; Beckham v. Ďrake, 2 H. of was good ; 2ndly, that the defendant had in- L. 579. fringed the patent. Sellers v. Dickinson, 5' 3. Cause of action not passing to assignees.Exch. R. 312.

Expense in endeavouring to procure release.See Disclaimer ; Infringement.

A., being sued by B., retained C., an attorney,

to defend him. By Co's negligence, a judg. BANKRUPTCY AND INSOLVENCY.

ment was obtained against d., upon which he

(being then in custody) was charged in execuAFFIDAVIT OF DEBT.

tion for a large sum, and was put to expense 1. What such an affidavit to make a trader a

in endeavouring to procure his release, and bankrupt, that perjury may be assigned upon it.

to reverse the judgment, by writ of error: -Held, in the Queen's Bench and by the

Held, that this was not a cause of action which Court of Exchequer Chamber, affirming the 'Wetherell y. Julius, 10 C. B. 267.

passed to A.'s assignees upon his insolvency. judgment of Queen's Bench, that, Where an affidavit of debt has been sworn

BILL OF SALE. under Stat. 1 & 2 Vict. c. 110, s. 8, with a The 61st section of the 1 & 2 Vict. c. 110,

Analytical Digest of Cases : Bankruptcy und Insolvency.

303 does not apply to bills of sale which convey the DEBTORS' ARRANGEMENT ACT. property absolutely, but only to an executory 1. Form of certificate under.-A certificate bill of sale. Hardy v. Tingey, 5 Exch. R. 294. under the Debtors’ Arrangement Act (7 & 8 CERTIFICATE.

Vict. c. 70, s. 13), must certify the filing of the

petition, and not inerely that a resolution or Taking bankrupt in execution under 12 8 1313

agreement was duly assented to, and approved, Vict. c. 105, s. 257.-Refusing certificate of

ue. and filed by the Commissioner. conformity.- Second certificate for execution |

| Quære, whether a certificate under this Act

Ou under same order.- When the Court of Bank

Ko requires confirmation, or whether a plea setruptcy has, on the bankrupt's last examina-17

ting-up such a certificate, need show that the tion, made an order refusing a certificate of

ate of debt is not of the excepted classes mentioned conformity under Stat. 12 & 13 Vict. c. 106, s. in section 2? Temple v. Sleigh, 9 C. B. 348. 256, and a certificate has been thereupon granted

2. Under 12 g. 13 Vict. c. 106, s. 224.to the creditor for the purpose of taking the Pleading. - The 224th section of the Bankbankrupt in execution under sect. 257, this

118 rupt Law Consolidation Act, 12 & 13 Vict. c. Court will not inquire whether the order was 106. makes a deed of arrangement, if executed made under circumstances bringing the case by

ise by or on behalf of six-sevenths in number and properly within one of the grounds of refusal value of the creditors of the trader, under cerstated in sect. 256.

tain circumstances, binding on the whole body: Although the order itself states the certifi

Held, that a plea setting forth a deed of that cate to have been refused because the bank.

description, and stating that the creditors who rupt “concealed some of his property,

executed it were “nore than six-scvenths, to whereas the offence described in sect. 256 is,

wit, nine-tenths in number and value,” was concealing with intent to diminish the divi.

sufficient, on special demurrer, and not open dend or give an undue preference.

to the objection of argumentativeness or imAfter the bankrupt has been imprisoned on materialitý. Stewart v. Collins, 10 C. B. 634. certificate granted to a creditor under such order of the Court of Bankruptcy, and dis- The certificate given to a petitioning trader,

3. Certificate of protection from arrest:charged, another creditor may obtain and en-, under the i2 & 13 Vict. c. 106. s. 216, only force a certificate under the same order. protects him from arrest at the suit of persons

It is no objection to the creditor's certificate being creditors at the date of the petition, and that the application for it was made without who have received the notices required by that notice to the bankrupt, and not at a public Act. meeting. For the granting of such certificate

Therefore, where the acceptor of a bill of exis only a ministerial act. In re Cowgill, 16 change petitioned under the arrangement Q. B. 336.

clauses of that Act, and gave the requisite CERTIFICATE FOR PROTECTION. notice to the drawer, whom he supposed Under Stat. 7 & 8 Vict. c. 70.- Where, to be the holder of the bill: Held, that the under Stat. 7 & 8 Vict. c. 70, creditors have certificate did not protect him from execution accepted a petitioning debtor's proposal, and on a judgment in an action by an indorsee of this has been certified by a Commissioner in the bill. Levy v. Horne, 5 Exch. R. 257. Bankruptcy, and he has indorsed a protection

“ DEBTS GROWING DUE." on the certificate under sect. 6, this only pro-|| tects from arrest, and cannot be pleaded in bar. Under the 69th section of the Insolvent Act, of an action brought by a creditor who has had 1 & 2 Vict. c. 110, the words “debts growing notice. Blackford v. Hill, 15 Q. B. 116. due” mean debts ascertained and payable in

futuro. Skelton v. Mott, 5 Exch. R. 231. COMPOSITION WITH CREDITORS. 1. Proof of plea of.—The averment in al

DISCHARGE. plea, that the defendant offered and agreed 1. What debts discharged.- Costs of action with the plaintiff and divers of the said other pending, the verdict being obtained on day of creditors (the plea having previously stated discharge.-The adjudication of the Commisthat the defendant was indebted to the plaintiff sioner under the Insolvent Debtors' Act, 1 & and divers other persons), "to pay to them re. 2 Vict. c. 110, s. 90, discharges the insolvent spectively, and that the plaintiff and the said from all debts due or growing due at the time last mentioned other creditors agreed together of the petition, to creditors, or to persons to accept a certain composition for the pay claiming to be creditors. ment of the defendant'e debts,-is satisfied by An insolvent inserted in his schedule the proof of some of the creditors having entered name of A., in whose hands he had placed two into that agreement. Norman v. Thompson, 4 bills of exchange for the purpose of their being Exch. R. 755,

discounted. After the schedule was filed, he 2. Construction of agreement. — An agree discovered that A. had indorsed the bills to ment entered into between a debtor and any B., and accordingly obtained leave to amend number of his creditors less than the whole the schedule by inserting B.'s name therein, number, to take a coinposition for their debts, stating the circumstances under which the is binding upon those who enter into the bills came to B.'s hands. B. sued the inagreement. Norman y. Thompson, 4 Exch. R. solvent on the bills, and obtained a verdict at

the assizes against him on the morning of

755.

304

Analytical Digest of Cases : Bankruptcy and Insolvency. the day on which the order of adjudication situation, as if they were actually the goods of was made, and proceeded thereon to judgment the bankrupt, so as to vest them at once, by and execution : Held, that the insolvent was the bankruptcy, in the assignees, independently entitled to be discharged as to the action, both of any election on their part, other than their in respect of debt and costs,- although the acceptance of the office of assignee : but by a costs were incurred after the filing of the pe- transfer which is a fraudulent preference, the tition. Berry v. Irwin, 8 C. B. 532.

I property vests in the transferree, subject to be 2. Excepted debts.-By an order of adjudi- divested by the assignees, at their election, and cation by a Commissioner of the Insolvent the title of transferree is perfect, except so far Debtors' Court, purporting to be made pur- as it is avoided by the assignees. suant to the 1 & 2 Vict. c. 110, ss. 76, 78, the The commencement of an action of trover, prisoner was adjudged to be discharged as to which may be abandoned at any time, and all the debts in his schedule at the expiration of which assumes that the goods came into the six months from the date of the vesting order, possession of the defendant lawfully, cannot, except as to four debts, which the Commissioner without more, be taken to be an election on the found to have been contracted by means of a part of the assignees to avoid the transfer. breach of trust, and as to which the prisoners' Where, therefore, goods had been transferred was ordered to be discharged at the expiration by a trader before his bankruptcy, by an inof 16 months from the date of the vesting strument which the jury found to be fraudulent order: Held, that, whether the Commissioner preference, and the transferree had, after the had or had not jurisdiction to make the latter bankruptcy, and after the appointment of aspart of the order, the first part was no dis-signees, brought an action for an illegal and charge as to the four excepted debts. Exparte excessive distress upon the goods, which were Violett, 10 C. B. 891.

the subject of the conveyance: Held, that, the ENTRY OF SUGGESTION.

assignees having not otherwise asserted their

right to the goods than by commencing an acProof by plaintiff for costs in action, under tior

|tion of trover to recover them,-it was not fiat against defendant.-- The plaintiff obtained

competent to the defendants to set up their a verdict and judgment for 500l. damages, and

title under “not possessed.” Newnham v. 1351. 6s. costs : the defendant afterwards be

Stevenson, 10 C. B. 713. came bankrupt, and the plaintiff proved under the fiat for the costs only. The Court refused

ISSUING OF FIAT. to enter a suggestion of the proof upon the 1. Date. A fiat in bankruptcy, granted by roll,--there being no precedent, and in the the Lord Chancellor, was delivered by him to opinion of the Court, no necessity for it. his Secretary of Bankrupts, to be transmitted Sainter v. Fergusson, 8 C. B. 619.

by post to the Commissioners of Bankruptcy EXAMINATION.

in the country. The secretary accordingly put Withdrawal of opposition to last examina the fiat into the post-office, in pursuance of the tion.--Validity of security.--A security given by the Lord Chancellor to the secretary was not

norder given : Held, that the delivery of the fiat by a bankrupt to a creditor, on consideration of his forbearing to oppose the bankrupt's the true “ date and issuing of the fiat” within last examination, is not void under the 12 & the 2 & 3 Vict. c. 29, so as to protect an exe13 Vict. c. 106, s. 202. Taylor v. Wilson. 5 cution levied after such delivery. Freeman V. Exch. R. 251.

Whitaker, 4 Exch. R. 834.

2. Under 58.6 Vict. c. 122, s. 4.- The 5 & EXECUTION.

6 Vict. c. 122, s. 4, enacts, that fiats in bankOn judyment signed under Judge's order, ruptcy shall be issued and transmitted by the within protection of i Wm. 4, c. 7, s. 7.- After | Lord Chancellor's Secretary of Bankrupts, , declaration, in an action adversely brought, such manner as the Lord Chancellor shall by and without collusion, the defendant consented any order direct. The Lord Chancellor, by to a Judge's order for payment of debt and

an order, directed that every fiat directed to costs forthwith, the plaintiff to be at liberty, in any district Court of Bankruptcy should forthcase of default, to sign judgment and issue with be sent through the General Post-office execution for the amount: Held, that a judg- to the deputy registrars of such district Court. ment signed thereon was a judgment by nil A fiat in' bankruptcy having been signed by dicit, and within the protection of the 1 Wm. I the Lord Chancellor and sent to the offic 4, c. 7, s. 7. Bell y. Bidgood, 8 C. B. 763.

the Secretary of Bankrupts, was by him duly FRAUDULENT COMPOSITION.

put into the post, and arrived at the district Recovery of money paid as price of procur

Court on the following day: Held, that the fiat ing. Whether a debtor paying money down

issued at the moment it was put into the post.

Hernaman v. Coryton, 5 Exch. R. 453. to a creditor before he enters into a composition, as the price of procuring a fraud on his

JUDGE'S ORDER. other creditors, may recover back the money, quære. Higgins v. Pitt, 4 Exch. R. 312.

1 1. Judgment by confession. — A Judge's

order, made by consent, for immediate judg. FRAUDULENT PREFERENCE.

ment and execution, is a “judgment by conThe effect of bankruptcy upon a fraudulentfession” within the 108th section of the o Geo. preference, is not to put the goods in the same 14, c. 16.

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