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v. Neale (a) and Rivis v. Hatton (b). The rule there laid down, in the great majority of cases effects substantial justice. Here, no doubt, it caused some hardship; but we cannot depart from a rule, which has a salutary operation in the great majority of cases, because in a particular case it causes hardship. It was argued, that there is a distinction between the costs of draft brief and copies, and instructions for brief. But instructions for brief are preparations for trial, and the rule applies to all costs of preparing for trial. No such costs are allowed if no notice of trial has been given. It was argued that the circumstance that the defendant was under terms of taking short notice of trial should be taken into consideration, but that was a difficulty cast upon him in consequence of his own conduct.

WATSON, B.-I am of the same opinion. When the case was before me at Chambers, I thought that I was bound by the authorities on the subject.

CHANNELL, B.-I think that my brother Watson's order was right. There is no doubt that it has long been the rule that where no notice of trial has been given, the plaintiff may discontinue without payment of the defendant's costs of preparing for trial. On such a subject it is better to lay down a general rule and adhere to it. We are not called upon to lay down the rule for the first time, but to rectify decisions not of very recent date, and which have been acted upon by the Master. There will therefore be no rule.

1860.

COOPER

v.

BOLES.

Rule refused.

(a) 2 M. & W. 732.

(b) 8 Dowl. 164.

VOL. V.-N. S.

EXCH.

1860.

Jan. 26.

THE PATENT TYPE FOUNDING COMPANY (LIMited) v.

LLOYD.

THE SAME v. Walter.

Quare, whether GATES had obtained rules calling on the defendants

a Court of
common law,
in making an
order under
15 & 16 Vict.
c. 83, s. 42,
that a plaintiff
inspect a
may
manufacture
alleged to be
an infringe-
ment of a
patent, has
power to
direct that he
shall be at

liberty to take
specimens of
the same for

the purpose of analysis. The affida. vits in support of such an application should bring all the facts before the

in these actions to shew cause why they should not permit the plaintiffs, their manager and witnesses, to inspect at their offices the type used by them respectively in printing Lloyd's Newspaper and the Times, and, if necessary, to take specimens to be analyzed in order to produce evidence thereof at the trial.

In The Patent Type Founding Company (Limited) v. Lloyd, the affidavits on which the rule was granted were made by Johnson, the patentee and manager, and Atkinson the managing director of the plaintiffs' Company. Johnson deposed that, on the 7th of April, 1858, her Majesty granted to him a patent for an invention of "Improvements in the manufacture of type and other raised surfaces for printing:" that a specification was filed on the 6th of October, 1857 (a):

Court precisely, and should be such as to satisfy the Court that there has been an infringement and that there is a necessity for their interposition.

In an action against a printer for an infringement of a patent for improvements in the manufacture of type, the improvements consisting in the use of lead, tin and antimony in certain proportions, the plaintiff applied to the Court under the 42nd section for leave to inspect, and if necessary to take specimens of the type for the purpose of analysis. His affidavit stated that he had obtained from the defendant specimens of the type and caused them to be analysed by a chemist who was dead, and that the type so analysed was an infringement of the patent; but did not set out the report of the chemist or state its substance, or whether or not it was in writing. The Court refused to make an order that the plaintiff should be at liberty to take specimens for analysis.

(a) The material part of the specification was as follows:

In the manufacture of type and other raised surfaces for printing it has been usual for the most part to employ compounds of lead and antimony as the metal

for casting the same, and in some cases a small per centage of tin has been added. Now the object of my invention is to obtain harder, tougher and more enduring type and raised surfaces for printing, by employing tin in large pro

that he was the true and sole and first inventor, and that

1860.

FOUNDING

COMPANY

v.

LLOYD.

THE SAME

v.

WALTER.

at the time of granting the letters patent, no other person PATENT TYPE had used or vended the invention within the realm: that the letters patent had never been impeached, and are now valid that the letters patent were duly assigned to the plaintiffs on the 12th of October, 1857: that in January, 1859, he procured specimens of type in the possession of the defendant, and afterwards handed them to Atkinson. Atkinson deposed that in February, 1859, from circumstances which then came to his knowledge, he was led to suspect that the type was an infringement of the patent: that accordingly, on the 21st of February, he handed the specimens to one Henry, an analytical chemist, with instructions to analyze the same, and report to him of what ingredients the same was composed: that in March Henry reported

portions with antimony, and to greatly reduce or wholly omit the use of lead with such metals when making type and raised surfaces for printing, by which means the type produced is so hard, tough, and enduring, as to allow of its being used as a punch on the ordinary type metal now used; and the best proportions I am acquainted with are seventyfive of tin and twenty-five of antimony, but this may be to some extent varied; and when lead is also used I find that it must not exceed fifty parts in a hundred of the combined metals employed; for if the lead be employed in much larger quantity the hardness and toughness of the alloy rapidly decreases, and the alloy then approaches the ordinary type metal in its properties, notwithstanding the presence of a considerable quantity of tin.

In carrying out my invention I proceed in the same manner as when the ordinary type alloy is made. I fuse the tin, or tin and lead (when the latter metal is employed), and when fused I take off the scum or dross and add the antimony, continuing the heat until combination takes place, when the alloy is again skimmed and run into ingots for use.

When the antimony is tolerably pure the best proportions are as given above, one part of antimony to three of tin, or tin and lead; but when it contains other metals I find that the quantity of antimony should be diminished, or, which is preferable, the metal should be repurified. If this be not attended to, the alloy, although of great hardness, does not possess the tenacity or toughness necessary for type of extreme durability.

1860.

PATENT TYPE
FOUNDING
COMPANY

v.

LLOYD.

THE SAME

v.

WALTER.

to him the result of his analysis, from which it appeared that the type was made according to the said specification : that Henry died soon after making the analysis: that the said type is an infringement of the patent: that he was informed and verily believed that the said type must have been procured by the defendant since the date of the letters patent; and that he was advised and believed that it was material and necessary for the plaintiffs, in order to support their case in the trial of this cause and to prepare for the trial thereof, to have an inspection of the defendant's type, and, if necessary to take specimens of the same for the purpose of being analyzed; and that the plaintiffs could not obtain specific proof of the infringement of the said patent by the defendant without such inspection and specimens, inasmuch as it is not possible from the external appearance of the type to judge of what metals and in what proportions the same is compounded.

In The Patent Type Founding Company v. Walter the affidavits shewed that on the 15th of March, 1859, an agent of the plaintiffs called at the printing office of the Times newspaper for a sample of the type used in printing the newspaper, and Goodlake, the printer of the newspaper, handed to him a sample of such type.-In other respects the affidavits were substantially similar to those in the former

case.

On summonses heard at Chambers during the Vacation, Bramwell, B., had expressed his willingness to make orders for an inspection, but he had declined to order that specimens of the type might be taken.

Grove, for the defendant Lloyd, now shewed cause.— These affidavits do not shew that an inspection is necessary; first, because, although Henry the chemist is dead, in making this analysis he would have had assistants in the laboratory,

and his assistants might have proved what were the results of the analysis; secondly, the report of Henry is not set

The plaintiffs simply state that it appeared that the defendants' type was made according to the specification. The 42nd section of the 15 & 16 Vict. c. 83, enacts that it shall be lawful for the Court, or if the Court be not sitting then for a Judge, on the application of the plaintiff, "to make such order for an injunction, inspection, or account" as to such Court or Judge may seem fit. It gives no power to a party to take specimens. There is no provision for awarding any compensation to the defendant for the destruction of his type. [Martin, B.-The object of the section. in question was to enable Courts of law to grant inspection in every sense in which a Court of equity could grant it.] It is doubtful whether a Court of equity would entertain such an application. Russell v. Cowley (a) is the only instance of an order that specimens of the manufacture should be taken, and in that case the order was made by consent. In every case in Chancery where an order for inspection has been made, the affidavits have made out a case for an ex parte injunction. As a condition of dissolving or refusing the injunction, terms have been often imposed. But here no case for an injunction is made out; nor is an injunction asked for. [Pollock C. B.--I cannot consent to use a power which we have for the purpose of compelling parties to submit to that which we have no power to order.]

Bovill and Webster shewed cause for the defendant Walter. The specification is so general that it is impossible to ascertain what the patent is for. The main question is, whether the Court has power to make an order for specimens. The absence of all mention in the 42nd section of

(a) 1 Webst. P. C. 457.

1860.

PATENT TYPE
FOUNDING
COMPANY

v.

LLOYD.

THE SAME

v.

WALTER.

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