The person charging this material is re- sponsible for its return to the library from which it was withdrawn on or before the Latest Date stamped below. Theft, mutilation, and underlining of books are reasons for disciplinary action and may result in dismissal from the University. To renew call Telephone Center, 333-8400 UNIVERSITY OF ILLINOIS LIBRARY AT URBANA-CHAMPAIGN Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/monopoliesbypateOOgord MONOPOLIES BY PATENTS. MONOPOLIES BY PATENTS AND THE STATUTABLE REMEDIES AYAILABLE TO THE PUBLIC. BY J. W. GORDON, OP THE MIDDLE TEMPLE, BAEEISTEE - AT - LAW. “In all restraints of trade, where nothing more appears, the law presumes them bad, but if the circumstances are set forth, that presumption is excluded and the Court is to judge of those circumstances and determine accordingly.” By Parker, C.J., in Mitchel v. Reynolds, 1 Peere Williams, p. 197. LONDON : STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, lajfof f mh %aislu\lm. 1897. Srv»7 4-50 0 Gr (oSG ^ TO AN HONOURED FRIEND AND MASTER CRAFTSMAN IN THE LAW i btbicate THIS SHEAF OF GLEANINGS IN A FIELD WHICH HE HAS MADE PECULIARLY HIS OWN. *> y'-. LIBRARY UNIVERSITY or ILLINOIS at URBANA-CHAMPAIGN PREFACE. The word “monopoly” has come to be in a sense the possession of writers upon political economy and a lawyer at the present day, if he employs the term, does so with some consciousness of borrowing from the vocabulary of a stranger Muse. Under these conditions, naturally enough, it has no very precise legal significance and for that, among other reasons, its adoption for the purpose of the title of this book demands an explanation. The explanation is that, in the period from which the materials of this book have in the main been drawn, the word was a term of law and had as such a definite and authentic meaning. The phraseology adopted by Lord Blackburn in Bailey Y.Roherton (3 App. C. p. 1074), especially his use of the word “monopoly,” is proof, if proof were needed, that in that sense it is now antiquated, perhaps obsolete. Yet no word has replaced it and in such an exigency as arises upon the choice of a title, when words must needs be numbered no less than weighed, it becomes sometimes necessary to make formidable sacrifices to com- pendious expression. Such pressure shaped the present title and determined the employment of the word “ monopoly ” in the now-forgotten sense which it received from the Com- mon lawyers ; — a sense in which it connotes the infringe- ment of private rights and stands fulfilled if only a single VUl PREFACE. individual is ousted from the freedom which he has inherited with the laws of England to follow any lawful trade. Monopoly in this sense is no less a grievance at the present day than it was in bygone times although the mischief can no longer be traced to the original fountain- head of a misused prerogative. Kings have grown less formidable but private individuals more so since the beginning of the seventeenth century and in the vivid language of Lord Justice Bowen {a), the complaint of Mr. Justice Pearson {d) and the remonstrance of Sir Bernhard Samuelson {c) — to go no farther afield than the following pages for illustration — is to be found argument beyond gainsaying that monopolies are still mischievous to the State and generally inconvenient. That such provisions as the Statute Law comprises for their suppression are almost entirely overlooked at the present time and — incredible as it seems — in the main so completely forgotten as to be for all practical pur- poses unknown — this is the circumstance which has given occasion for the present book and this its author s apology for putting it forward. The germ of this little treatise lies in Chapter II., which was originally intended to appear in the form of a review article. But the difficulty of writing to purpose upon such a topic under the limi- tations which that literary form imposes proved insur- mountable. It became evident that, having regard to the archaic form of the fourth section of the Statute of Monopolies and to the absence of authorities upon its construction and application, the only treatment that could be attempted with any prospect of useful result was that of commentary; — and a commentary imports a book. The {a) See below, p. II. (b) See below, p. 152. (c) See below, p. 102. PREFACE. IX production of a book in its turn involved the discussion of at least the companion remedy given by section thirty -two of the Patents Act of 1883 and this, in the absence of any text-book which does justice to that section as illustrated by the law reports at the present day, became a motive for a new chapter in the book. The twenty-second section of the Patents Act completes the tale of statutable remedies specifically given for the mischief of monopoly and consti- tutes, with the enactments already mentioned, a body of Statute Law small indeed in bulk but of vast importance to the industrial community and meriting at least the illustration which comes of separate grouping. This body of law is the subject of the following pages. It is embodied in the second, third and fourth chapters to which the rest stand more or less in the relation of Appendix, being collected to serve the purposes of illustration and reference. There is in this appended matter one item of which specific mention must be made, namely, the Declaration of King James published in 1610 and now reprinted in facsimile from an original preserved in the British Museum. The unusual course of facsimile reproduction has been suggested by the extraordinary interest of the document and particularly by the hope that, when someone shall have come forward with the nucleus of a bibliography, librarians and owners who may have prints of the Declara- tion in their possession or custody may become interested to make communications with the view of perfecting the list of known copies. A document incorporated, as this is, with the Statute Law of the realm should not be left to take its chance upon the second-hand bookstalls even although half a dozen copies be known to be preserved beyond any serious risk of loss or damage in great public libraries. X PREFACE. The best way of calling attention to this matter, and of facilitating the necessary identification of the document, appeared to be the photographic reproduction of the original which has here been undertaken. In the way of acknowledgment to personal friends and others who have assisted me in the preparation of this book there is much that must be reserved for private communi- cation but I cannot refrain from saying here that I have been greatly indebted for much helpful criticism and valuable suggestion to my friend Mr. A. B. Shaw , of the Inner Temple, nor should I be content to pass over, without the fullest acknowledgment, the great kindness of Prof. S. R. Gardiner in placing at my disposal for publication here [d) his comments upon King James* Declaration. Moreover, to the Trustees of the British Museum I desire to tender my best thanks for the courtesy with which they have afforded me facilities for obtaining photographs of the Book of Bounty. My gratitude to them is the greater because the privileges accorded to me were granted in the ordinary course of their literary hospitality and not as matter of especial grace. Nor have I only this for which to thank them and the staff of officers who conduct the business of the library, for it must be added that my search for ‘‘ the King’s Book” would probably have been altogether fruitless if it had not been furthered by the volunteered co-operation of the Superintendent of the Reading Room. My unassisted efforts had already failed elsewhere. The Book lay under my hand, as I now know, in the Library of my own Society of the Middle Temple but escaped my search and was only brought to light a few weeks ago, when I bethought me of consulting {d) See below, p. 158. PREFACE. XI Mr. Hutchinson about it. Had I appreciated at first how rich the Middle Temple Library is in documents of its date and class, I should have renewed my search for it there as soon as I had the means of identifying the book and in that case it would have been the most natural course for me to seek permission from the Benchers of the Inn to obtain my photographs from their copy of the Declaration. But the ready courtesy of the Trustees of the British Museum made it so easy to accomplish, with their permission, all that I desired to do that not until a systematic inquiry was put in hand did I find any occasion to look for additional copies of the print. The librarians and others who have assisted me in this systematic inquiry are too many for individual mention and I will presume, therefore, to address to them one comprehensive word of acknowledg- ment and thanks. One thing remains to be said ; for, in putting the finishing strokes to my work, I have become very conscious of having attempted much and, though sanguine that something has been accomplished, so keenly aware of having failed of accomplishing more that I cannot lay down the pen without adding one word upon that topic. But here I shall avail myself of borrowed language for the sentiment is not new and, with its fit expression running in one’s head, quotation affords the only escape from conscious plagiarism. Quod rei criticae tractatu huic deesse videatur id mihi intra fines exiguos incluso lector candidus ignoscat. May, 1897. J. W. GORDON. CONTENTS — ♦ PAGE Preface vii Errata xiv Table of Abbreviations xv Table of Oases xvii j CHAPTERS. I. INTEODUCTOEY 1 II. COMMENTAEY on STATUTE of MONOPOLIES 21 III. COMMENTAEY on the 32nd SECTION 71 lY. COMMENTAEY on the 22nd SECTION 98 Y. COMMENTAEY on THE PATENT 106 YI. PEOOEDUEE 133 APPENDIX 155 I. Book of Bounty 157 II. Efforts of Cases (Monopolies — Penal Statutes) . . 193 III. Statutes, &c 235 lY. Illustrative Documents 249 Y. Note upon Eex v. Mussary 268 ERRATA. Page 46, n. (w). The reference in this note to Myl. & Or. is given on the authority of Mr. Norman who, however, is clearly mistaken and should have cited 1 Euss. & Myl. 166. Page 56, n. (o). The reference to Salt v. Cooper should be 16 Ch. D. 549. Page 64, n. («'). The case cited as Nurse v. Oeeling should read Nurse v. Geeting and Wigley v. Thomas should be Wigley v. Tomlins^ LIST OF ABBREVIATIONS Note. — I t has not been possible to maintain rigorous uniformity in the system of abbreviating followed in this book, because many of the citations occur in old authorities which have been textually reproduced and in which abbreviations now obsolete are adopted. Acts, P. C. { Ad. & E.. . Andr App. C. . . App. Cas. . Arch Ass Bac. Ab. . . B. «&: Aid. . B. &0. .. B. &S. .. Bing Bl. Com... I Br. Ab. .. Bro. Ent. . Bull. N. P. Bulst Burr Garth C. B I C. B. N. S. ' 0. D Ch I ( )Ch...{ Ch. D I Close EoU. I C. M. & R. I Cod. Just. . Co. Litt. . . Comb Com. Dig. Common- I taries . . j Co. Rep. . , Coryton . . | Cowp Cro. EUz. . Acts of the Privy Council of England Adolphus and Ellis Andrews’ Reports Law Reports; Appeal Cases Archseologia (Soc. of Anti- quaries) Liber Assisarum Bacon’s Abridgment Bamewell and Alderson Bamewell and Cresswell Best and Smith Bingham Blackstone’s Commentaries, 15th Edition (1809) Brooke’s Abridgment Brown’s Entries Buller’s Nisi Prius Bulstrode’s Reports Burrows’ Reports Carthew’s Reports Common Bench (Scott’s) Re- ports Common Bench, New Series Law Reports, Chancery Division Law Reports, Chancery Ap- peal Cases Law Reports, Chancery (since 1890) Law Reports, Chancery Division Rotuli Literarum Clausarum (Hardy) Crompton, Meeson and Ros- coe Codex Justiniani Coke upon Littleton Comberbach Comyn’s Digest Plowden’s Commentaries (or Reports) Coke’s Reports Coryton’ s Law of Letters Patent (1855) Cowper’s Reports Croke’s Reports temp. Eliz. D. C. P. . . Daniel’s Chancery Practice ^ Sm^‘. . ^ Fisher, and Jones Deut Deuteronomy I D’Ewes’ Journals of the Par- liaments of Queen Eliza- beth D. & L. . . Dowling and Lowndes Doug Douglas’ Reports Dowl.P. C. ( Dowling’s Practice ( Old Series Dowl.&Ry. Dowling and Rylands Dyer .... Dyer’s Reports East East’s Reports Eliz. Dyer. Dyer’s Reports temp. Eliz. Eq Law Reports, Equity Cases I Law Reports, Exchequer ( Division I Fitzherbert’s Natura Bre- ( vium Giffard’s Reports Godbolt’s Reports Goodeve’s Patent Cases Griffin’s Patent Cases ( Griffin’s Pat. Cases decided by Comp. Gen. and L. O. in 1887 Hurlstone and Coltman Hare’s Reports Harrison and WoUaston Ex. Div. . . F. N. B. . . Gi£E Godb Goodeve . . Griff 2 Griff. .. H. & C. . . Hare .... Har. & W. Harg. Tr. St. I Hargrave’s State Trials, 8 vo. Herbert Hindmarch ed. by Howell H. Bl Henry Blackstone’s Reports H. C. Jl. . . House of Commons Journal I Herbert’s History of the London Livery Companies Hindmarch’s Law relating to Patent Privileges H. L. C. . . J House of Lords Cases (Clark H. L. Cas.. ( and Finelly ; Clark) Inst Coke’s Institutes J. A Judicature Act Jur. N. S. . Jurist Reports, New Series Keb Keble’s Reports Kennett I Kennett’ s History of Eng- land, 2nd ed. XVI LIST OF ABBREVIATIONS. Lawson . , Ld. Raym. Leon Lev Ley Lib. Ass. . . L. J. Bk.. L. J. Ch... L. J. C. P. L. J. Ex.. L. J. M. C. L. J. Q. B. L. R. Eq. . L. R. Ex. . L. R.Ir... L.R. Q.B. L. T L. T. N. S. Macqueen Sc. App. Macr Macr. P. C. Mag. Car. . M. & G. . . M. & P. . . M. &W... M‘Clel. .. Mer Mod Moore .... Moore K. B Myl. & Cr. Nev. & M.. New Reps. Noy Odgers . . Pari. Hist. Pat. Act. . . Pat. Sc. App. P. D Plowd. . . P. R ( Lawson’s Patents, Designs \ and Trade Marks Acts Lord Raymond’s Reports Leonard’s Reports Levinz’s Reports Ley’s Reports Liber Assisarum Law Journal, Bankruptcy Law J ournal. Chancery Law J ournal, Common Pleas Law Journal, Exchequer ( Law Journal, Magistrates’ ( Cases Law Journal, Queen’s Bench Law Reports, Equity Cases I Law Reports, Exchequer \ Cases Irish Law Reports ( Law Reports, Queen’s Bench I Cases Law Times Reports Law Times, New Series I Macqueen’ s Scotch Appeals I Macrory’s Patent Cases Magna Carta Manning and Grainger Moore and Payne Meeson & Welsby M‘Cleland Merivale Modern Reports ( Moore’s Reports in Common Pleas and Exchequer Divi- sions I Sir Eras. Moore’s Reports Mylne and Craig Pri Price’s Reports P. Wms. . . Peere WilHams Q. B I { )Q.B.{ Q. B. D... I Queen’s Bench Cases, Adol- phus and Ellis Law Reports, Queen’s Bench Division (since 1890) Law Reports, Queen’s Bench Division Raym. . . Register . . Rem Rememb. . Roll. Ab. . Roll. Rep. Rot. Par. . Rot. Pat . . R. P. C. . . R. R R. S. C. .. Russ. & Myl. .. Ry. &. M. Ry. Feed. . Sir T. Raymond’s Reports Registrum Brevium ( Remembrancia of City of London, Overall’s Analy- tical Index to RoUe’s Abridgment Rolle’s Reports Parliament Roll Patent Roll ( Reports of Patent Cases I (Cutler) Revised Reports Rules of the Supreme Court I Russell and Mylne Ryan and Moody Rymer’s Foedera Salk Salkeld’s Reports Sav Savile’s Reports } Skinner’s Eeporta S. L. R. . . Statute Law Revision Acts St. Pap. ) State Papers, Domestic Dom. . . j Series Taunt. . . Taunton’s Reports mi, „ ( Thessalonians (St. Paul’s ( Epistle to) Times Rep. Times Law Reports T. R. Term Reports Tyr Tyrwhitt’s Reports Neville and Manning New Reports Noy’s Reports ( Odgers’ Principles of Plead- 1 ings, 2nd ed. I Parliamentary History of I England Patent Act of 1883 I Paton’s Appeal Cases from j Scotland ( Law Reports, Probate Divi- 1 sion ( Plowden’s Reports (or Com- \ mentaries) Patents Rules, 1890 Ventr Ves Vin. Ab. . . W. Bl. .. Wils Wms. Saund. . W. N W. P. C. . . W. R Y. B Yelv Ventris’ Reports Vesey’s Reports Viner’s Abridgment ( Sir William Blackstone’s \ Reports Serjeant Wilson’s Reports 1 Saunder’s Reports, by Serj. / Williams Weekly Notes Webster’s Patent Cases Weekly Reporter / Year Book. (The citations \ sometimes give the folio j only, at other times the \ placitum referred to) Yelverton ( xvii ) TABLE OF CASES. Title of Case. Date. Wbere reported. Point. Where cited in this Book. Alcock V. Cooke 1829 5 Bing. 340 ; 7 L. J. C. P. Construction .... 114 126 ; 2 M. & P. 625; Recitals 107 1 W. P. C.41,n. Allen ^ Darcy v — (See Monopolies, Case of.) Allen^ Suffer v., .... (See Suffer v. Allen.) Alton Woods, Case of 1600 1 Co. Eep. 40 b Aid Prayer .... 61 Bounty no Certain know- 111, 112 ledge. Construction .... no, 114, 116, 120 Recitals 109 Andover, Beg. v. JJ. of .... (Seei2ey. V. JJ. of Andover.) Anglo- American Brush (See King, Brown ^ Co. v. Corporation, King, .... Anglo-American Brush Brown ^ Co. v. Corporation.) Ashworth, Lawv .... (See Law v. Ashworth.) A. - G. V. Constable .. 1879 4 Ex. Div. 174 ; 48 L. J. Restraint 35 Ex. 455. A.-G. V. Sir E. Farmen 1676 2 Lev. 172 Recitals 109 A. - G. V. Hatton .... 1824 13 Pri. 477 ; M‘Clel. 216 Damages 57 A.-G. V. Sir E. Turner 1676 2 Mod. 107 Recitals 109 Auditor King’s Case. . 8 Co. Rep. 56 b Construction .... 114, 120 Austin, Waltham v. . . .... (See Waltham v. Austin.) Automatic Machine Co . , (See Combined Weighing ^ Combined Weighing Advtrtising Co. v. Auto- ^ Advertising Co. v. matic Machine Co.) G. b xvm TABLE OF CASES, Title of Case. Date. Where reported. Point. Where cited in this Book. Automatic Weigliing 1889 6 R. P. C. 307 Procedure 150 Mac. Co. V. Knight Badische Anilin d. 18*83 24 Ch. D. 175 Forfeiture ...... 49 Levinstein. Licenses 103 22nd section .... 152 Bailey v. Roberton . . 1878 3 App. C. 1075 Validity 108, 109 Bainhridge v. Wigley 1810 Groodeve, 30 Patent Grant . . . 108 Barnett and Foster v. 1884 1 R. P. C. 9 Injunction 86, 88 Barrett’s, &c. Co. Ld. Patentee 77 Threats 82 Barney v. U. T. Co. . . 1885 28 Ch. D. 397; 52 L. T. Injunction .... 86 573. Barrett and Elers,Ld. 1890 43 Ch. D. 435; 59 L. J. Agency 77 V. Day. Ch. 464 ; 7 R. P. C. 58 ; Grievance 85, 94 62 L. T. 597. Injunction .... 80, 89 Ouster of 32nd 94 section. Procedure 97, 149 Threats 71,81,84 Threats action . . 135 Barrett's^ Co. Ld., • • • • (See Barnett and Foster v. Barnett and Foster v. Barrett's, ^'c. Co. Ld.) Bateman, Walton v. . . .... (See Walton v. Bateman.) Bedell v. Russell .... 1825 Ry. & M. 294 ; 27 R. R. Procedure 93, 137 750. Betts V. De Vitre .... 1864 34L. J. Ch. 291; 12 L. T. Forfeiture 47, 48 N. S. 51 ; 11 Jur. N. S. 217. Betts V. Wilmott .... 1877 6 Ch. 239 Licensees 123, 128, 131 Sole privilege . . 122 Beverley, Crossley v. . . .... (See Crossley v. Beverley.) Bewes, Buelcle v — (See Buckle v. Bewes.) Blair v. Eisler 1888 21 Q.B. D. 185; 57 L. J. Privilege 63 Q. B. 512; 59 L. T. 337. Blake’s Case 1605 6 Co. Rep. 44 Writ of Attaint . . 65 Bones v. Booth 1778 2 Wm. Bl. 1226 Penal Statute . . 56 Booth, Bones v (See Bones v. Booth.) Boulton V. Bull 1795 2 H. Bl. p. 463 ; 3 R. R. Monopoly 27 439. Boursier, Elmslie v. . . .... (See Elmslie v. Boursier.) Bousjield, Fife v • • • • (See Fife v. Bousfield.) TABLE OF CASES. XIX Where Title of Case. Date. Where reported. Point. cited in this Book. Bower v. Hodges .... 1853 Boyce v. Whitaker . . 1779 Bozoun’s Case 1584 Brauer v. Sharp .... 1886 Brau. SuQQ y Brewster v. Weld .... 1703 Brotherhood, Halsey v. — Brown’s Patent, In the Matter of. 1887 Brunton v. Hawkes . . 1821 Bryant ^ May, Fusee Vesta Co. v. .... Buckle V. Bewes .... 1825 Buckler’s Case 1598 Bull, Boulton V Burn, Overton v. .... Burt V. Morgan & Co. 1887 Butler’s Case, Sir Oliver. 1680 Butler & Baker’s Case 1591 Cadell V. Eobertson . . 18;i Caldwell v. Van Vlis- sengen. 1881 Caledonian Bail. Co. V. North British Bail. Co. 1881 Carnan, Stationers’’ Co.y. • • • • Castle Mail Backet Co., In re Bayne. .... 13 C. B. 765; 22 L. J. C. P. 198. 1 Doug. 97 4 Co. Eep. 34 3 E. P. C. 197 (See Sugg v. Bray.) 6 Mod. 229 (See Halsey v. Brother- hood.) 2 Griff. 1 4 B. & Aid. 541 ; 23 E. E. 382. (See Fusee Vesta Co. v. Bryant ^ May.) 4 B. & C. 154 2 Co. Eep. 55 (See Boulton v. Bull.) (See Overton v. Burn.) 4 E. P. C. 281 2 Vent. 344 3 Co. Eep. 33 5 Pat. Sc. Ap. 503 9 Hare, 415; 21 L. J. Ch. 97 ; Goodeve. 6 App. C. 121 {^eeStationers’’ Co.y. Carnan.) (See Bayne, In re, Ex parte Castle Mail Backet Co.) h 2 Licensees 131 Pleading 139 Validity 274 Common Law . . 74 Grievance 94 Injunction .... 80 Procedure 97 Sci.fa. 118 Patent Grant . . 108 Bounty 110 Validity 109 Damages 57 Grant 116 Injunction .... 80 Threats 78, 80 Sci. fa 118 Certain know- 111 ledge. Injunction .... 134 Bounty 111 Construction. . . . 114 Grant 116, 126 Patent Grant . . 106 Penal Statute . . 53, 54 XX TABLE OF CASES, Title of Case. Date. Where reported. Point. Wliere cited in this Book. Challender v. Eoyle. 1887 4 R. P. C. 364, 376 ; 36 Common law . . 74 Ch. D. 425; 56 L. J. Diligence 95 Ch. 995. Grievance 85, 94 Injunction 86, 87, 88, 89, 93 Ouster of 32nd 94, 95 section. 32nd section . . . . 71, 76 Threats 78, 79, 80, 81, 83, 84 Threats action . . 91 Chandos’ Case (Duke 1606 6 Co. Rep. 56 a Construction. , . . 272 of). Chanter v. Dewhurst. 1844 12 M. & W. 823; 13L. J. Construction .... 132 Ex. 198 ; Goodeve. Licensees 131 Chanter v. Johnson . . 1845 14 M. &W.408 ; 14L. J. Licensees 128, 131 Ex. 289 ; Goodeve. Chester v. Frieland . . Ley, 73 Validity 108 Chester, Bex v . • . • (Seei2(?^v. Chester.) Cholmley’s Case .... 1598 2 Co. Rep. 54 Recitals 109 Church Eng. Co. Ld., (See Wilson v. W. E. Wilson V. Walter, E. Church Eng. Co. Ld.) Clarhe, Lee v (See Lee v. Clarke.) Clarke, Tasmanian Co. (See Tasmanian Co. v. V. Clarke^ Clarke, Walker v .... (See Walker v. Clarke.) Coffin, Hunt v (See Hunt v. Coffin.) Cogan, Hyde v. — (See Hyde v. Cogan.) Colley V. Hart (Inter- 1889 6 R. P. C. 20 Injunction .... 87, 88, locutory). 89 Procedure 97 Colley V. Hart (Trial). 1890 44 Ch. D. 179 ; 59 L. J. Diligence ...... 95, 96 Ch. 308 ; 62 L. T. 424 ; Injunction .... 88, 134 7 R. P. C. 101. Ouster of 32nd 95 section. Procedure 97 Threats 82 Colley, Wilkinson v. . . .... (See Wilkinson v. Colley.) \ TABLE OF CASES, XXI Title of Case. Combined Weighing & Advertising Co. V, Automatic Ma- chine Co. Constable^ A.~G. y. . . CooJce, Alcoch v Cooper^ Salt v Cooper V. Whitting- ham. Corker, Kingston v. . . Cowley, Russell v Crampton v. Pat, In- vest, Co. Ld. Crane v. Price Crossley v. Beverley. . Crossley v. Derby Gas Co. Crossley v. Dixon .... Darcy v. Allen Davenant v. Hurdis . . Day, Barrett andElers, Ld. V. Day V. Foster Date. Where reported. Point. Where cited in this Book. 1889 42 Ch. D. 666 ; 58 L. J. Agency 77 Ch. 709; 61 L. T. 474. Diligence 90, 95,96 .... 536; 6 R. P. C. 502. {See A.-G. v. Constable.) (See Alcoch v. Cooke.) (See Salt v. Cooper.) Ouster of 32nd section. Pleading 32nd section . . . . Threats Threats action . . 95 97 76 17, 82 76 1880 15 Ch. D. 501 ; 49 L. J. Ch. 752. (See KingstonY. Corker.) (See Russell v. Cowley.) Injunction .... 133 1888 5 R. P. C. 393 Certificate of Va- lidity. Diligence Procedure Threats 93, 145 96 93, 136 76, 78 1842 4 M. & a. 605 ; 1 W. P. C. 411 ; 12 L. J. C. P. 81. Subject Matter. . 219 1829 1 Russ. & Myl. 166; 1 W. P. C. 119 ; Goodeve. Forfeiture 45, 46 1829 1 Russ. & Myl. 166 ; 4 L. J.Ch. 25; 1 W. P. C. 119; Goodeve. Forfeiture 46 1863 10 H. L. Cas. 293; 32 L. J. Ch. 617; 9 Jur. N. S. 607 ; Goodeve. (See Monopolies, Case of.) Licensees 128, 131 1599 Moore, K. B. 576; 11 Co. Rep. 86 ; App, II. p. 226. (See Barrett and Elers, Ld. V. Day.) Monopoly 26 1890 43 Ch. D. 435 ; 59 L. J. Injunction .... 134 Ch. 464 ; 62 L. T. 597 ; 7 R. P. C. 58. Procedure 97 XXll TABLE OF CASES, Title of Case. Date. Where reported. Point. Where cited in this Book. Day V. Ward 1886 17 Q. B. D. 704; 55 L. J. Privilege 63 Q.B. 494; 55 L. T. 518. Derby Gas Co., Crossley • • • • (See Crossley v. Derby Gas V. Co.) De Vifre, Betts v. .... (See Betts v. De Vitre.) Dewhurst, Chanter v. . .... (See Chanter v. Dewhurst.) Dick V. Haslam 1891 8 E. P. C. 197 Injunction , , , . 90 Dillon. Ex parte .... 1879 11 Ch. D. 56 Grievance 42 Dixon, Crossley v (See Crossley v. Dixon.) Douglass V. Pintsch. . 1896 65 L. J. Ch. 920; 13 E. Injunction .... 87, 89 P. C. 60, 673. Threats 82 Dowson, Taylor & Co. 1894 11 E. P. C. 536 ; 12 E. Agency 77 V. The Drosophore P. C. 96. Ouster of 32nd 95, 97 Co., Ld. section. Procedure 92 Threats 82 Dredge v. Parnell .... 1896 13 E. P. 0. 394 Common Law . . 74 Injunction .... 89 Driffield, &c. Co. v. 1886 31 Ch. D. 638; 55 L. J. Agency 77 Waterloo, &c. Co. Ch. 391 ; 54 L. T. 210 ; Damages 91 3 E. P. C. 46. Grievance 85 Injunction .... 80 32nd section .... 76 Threats 82, 135 Drosophore Co . , Dowson, • • • • (See Dowson, Taylor ^ Co. v. Taylor Co. v. The. The Drosophore Co.,Ld.) Dudgeon v. Thomson 1878 3 App. Cas. 44 Penal Statute . . 54 and another. Duke of Chandos' Case. .... (See Chandos Case, Duke of. ) Earl of Rutland's Case (See Rutland's Case, Earl of-) Earl of Shrewsbury' s .... (See Shrewsbury's Case, Case. Earl of.) Earl Spencer v. Sivan- (See Spencer, Earl v. nell. Swannell.) East India Co. v. 1685 Skinner, 223 Foreign trade . . 29 Sandys. E. Bond. Water W. .... (See Hayward v. E. L. Co., Hay ward V. Water W. Co.) TABLE OF CASES, XXlll Title of Case. Date. Where reported. Point. Where cited in this Book. Edenv. Weardalelron 1887 34 Ch. D. 224; 35 Ch. D. Aid Prayer .... 61 & Coal Co. 287; 56 L. J. Ch. 400; 55 L. T. 860. Edge^ Johnson v .... (See Johnson v. Edge.) Edliu V. Pneumatic 1893 10 B. P. C. 312. Injunction .... 86, 88 Tyre Co. Pleading 97 Threats 82 Eisler^ Blair v .... (See Blair v. Eisler.) Elec. Power St. Co.^ (See Union Elec. Co. v. E. Union E. ^c. Co. v. P. S. Co.) Elmslie v. Boursier . . 1870 9 Eq. 222 ; 39 L. J. Ch. Construction .... 115 328. Grant 116, 125, 126 Patent Grant . . 106 Emma Silver Mining 1879 11 Ch. D. 930 ; 40 L. T. Procedure 146, 147 Co. V. Grant. 804. Emperor of Austria v. 1861 2 Giff . 628 ; and on ap- Forfeiture 47 Kossuth. peal, 3 De G. F, (fe J. 217 ; 7 Jur. N. S. 639; 30 L. J. Ch. 690 ; 4 L. T. N. S. 274, 494. English & American 1894 11 B. P. C. 628 Common law . . 74 Machinery Co, Grievance .... 94 Limited v. Gare Injunction .... 80 Machinery Co., Ouster of 32nd 95 Limited. section. Threats 82 Eve, Hall v .... (See Hall v. Eve.) Fair hum ^ Hall, House- (See Household Posher v. hold and Posher v. Fairburn ^ Hall.) Farmen, Sir E., A.- G. (See A.-G. v. Sir E. V. Farmen.) Feather v. Reg 1865 6 B. & S. 283 ; 35 L. J. Bounty 107 Q. B. 200; 12 L. T. Certain know- 111 N. S. 114; Goodeve. ledge. Patent Grant . . 106 Fife V. Bousfield .... 1844 6 Q. B. 100 ; 2 D. & L. Penal Statute . . 52, 56 481; 13 L. J. Q. B. Pleading 142 306 ; 8 Jur. 734. Foster, Bay v .... (See Bay v. Poster.) Frearson v. Loe .... 1878 9 Ch. D. 67 Forfeiture .... 49 Frieland, Chester v. . . « • • • (See Chester v. Frieland.) XXIV TABLE OF CASES. Title of Case. Date. Where reported. Point. Where cited in this Book. Fullwood V. Fullwood Fusee Vesta Co. v. 1878 1887 9 Ch. D. 179; 47 L. J. Ch. 459; 38 L. T. N. S. 380. 4 B. P. C. 193 Injunction .... Corporation .... Injunction 89 76 80, 88, Bryant and May. Threats ........ 90, 93 81 Gardiner, Lord Hun- ting tower V. .... (See Huntingtower v. Gar- diner.) Gare Machinery Co. Ld., E. and A. Ma- chinery Co. Ld. V. .... {See Eng. andAmer. M. Co. Ld. V. Gare Machinery Co. Ld.) Garrett V. J J. of Mary- lebone. 1884 12 Q. B. D. 620 (rrievance 42 Gaulard and Gibbs v. 1887 4 E. P. C. 190 Injunction 80 Lindsay. Geeting or Gething, Nurse v. .... (See Nurse v. Geeting.) Gibson, Reeve v .... (See Reeve v. Gibson.) Gilford, Pattison v. . . .... (See Pattison v. Gilford^ Graham, Milner .... (See Milne v, Graham^ Grant, Emma Silver M. Co. V. .... (See Emma S. M. Co. v. Grant.) Great Australian G. M. Co, V. Martin. 1877 5 Ch. D. 10; 46 L. J. Ch. 289 ; 35 L. T. 874. High Court .... 56 G. N. Rail., N. L. Rail. V. .... (See N. L. Rail. v. G. N. Rail.) Grey v, Pearson 1857 6 H. L. C. 106 Penal Statute . . 53 97 Hall and Others, In 1888 5 E. P. C. 307 Amendment . . . . the Matter. Hall V. Eve 1877 4 Ch.D.341; 46 L. J.Ch. Proccrlnro 92 39 Halsey v. Brotherhood 1880- 145; 35 L. T. N. S. 927. 15 Ch. D. 514 (C. A.); 19 Ch. D. 386; 49 L. J. Ch. 786. Bona ddes 1882 Common law . . Threats 14, 75 71, 72, Hamilton, Kendall v. . . .... (See Kendall v. Hamilton.) 73, 74 Harford, Neilson v. . . .... (See Neilson v. Harford.) TABLE OF CASES, XXV Title of Case. Date. Where reported. Point. Where cited in this Book. Hargreaves^ Nuttall v. .... i^eeNuttallv. Hargreaves.) Harmer v. Plane .... 1807 14 Vesey, jun., 130 Bounty 107 Hart V. Colley 1890 44 Ch. D. 193 Procedure 97 Hart, Colley v (See Colley y. Hart.) Hasker v. Wood .... 1885 54 L. J. Q. B. 419 Double Costs . . 58 Haslam, Dick v .... (See Dick v. Haslam.) Hassall v. Wright . . 1870 10 Eq. 509 ; 40 L. J. Ch. Licensees 131 145 ; Goodeve. Hawkes, Brunton v. . . .... (See Brunton v. Hawkes.) Hay V. Lord Provost 1863 4 Macqueen, Sc. App. Penal Statute . . 64 of Perth. 544. Haygrove, Smith v. . . — (See Smith v. Haygrove.) Hayward v. E. Lon- 1885 28 Ch. D. 138; 54 L. J. Injunction .... 133 don Water W. Co. Ch. 523. Herrburger v. Squire 1888 5 R. P. C. 581 Declaration of in- 94 validity. Diligence 96 Ouster of 32nd 95 section. . Pleading 52, 96, 97, 142 Threats 82 Heydon’s Case 1585 3 Co. Rep. 7b Remedial Stat. . . 62 Heydon, Leicester v. . . (See Leicester v. Hey don.) Hill V. Evans 1862 4 De G. F. & J. 309 ; 31 Forfeiture 48 L. J. Ch. 457. Hill V, Thompson .... 1818 8 Taunt. 375 ; 2 Moore, Infringement . . 128 424 ; 20 R. R. 488 ; 1 Validity 108 W. P. C. 239. Hodges, Bowers .... (See Bower v. Hodges.) Holdsworth, MacEae v. .... (See MacEae y.Ho Idsworth . ) Holliday, Watson v. . . .... (See Watson v. Holliday.) Holmes v. L. & N. W. R. 1852 Macr. 22 Grant , 116, 123 Horne v. Ivy 1669 1 Sid. 441 ; 1 Vent. 47 . . Forfeiture 45 XXVI TABLE OF CASES. Title of Case. Date. Where reported. Point. Where cited in this Book. Household & Kosher v. Fairburn & Hail. Howarth, Sykes v 1884 51 L. T. N. S. 498 ; 1 H. P. C. 114 ; 2 E,. P. C. 142. (See Sykes v. Howarth.) Injunction 74 Hulfer V. Allea 1867 L. R. 2 Ex. 18 ; 36 L. J. Ex. 17; 4 H. &C. 634; 15 L. T. N. S. 225 ; 12 Jur. N. S. 930. Seizure of Goods 57 Hunt V. Coffi.u 1561 Dyer, 197 b Sci. fa 118 Hunt, Finney v Hunt, Thomas v (See Finney v. Hunt.) (See Thomas v. Hunt.) Huntingtower, Lord, V. Gardiner. Hurdis, Havenant v. . . 1823 1 B. & C. 299 ; 2 Dowl. & Ry. 457 ; 1 L. J. (0. S.) K. B. 120. (See Havenant v. Hurdis.) Penal Statute . . 52 Hyde v. Cogan 1781 Doug. 705 Penal Statute . . 52 Igulden, Wells v Ip sivich, Case of Clothiers of. (See Wells v. Igulden. ) Ipswich Taylors' Case.) Ipswich Taylors’ Case 1614 11 Co. Rep. 53; Godb. 253. Common law . . Validity 26 117 Isaacson v. Thompson Ivy, Horne v 1871 41 L. J. Ch. 101 (See Horne v. Ivy.) Injunction .... 88 John, the Dyer, Case of. Johnson, Chanter v. . . 1414 Y. B. 2 H. V. 5 B. ; 11 Co. Rep. 53. (See Chanter v. Johnson.) Monopoly .... 26, 27 Johnson v. Edge .... Johnson, Needham v. . . 1892 (1892) 2 Ch. 2 ; 61 L. J. Ch. 262 ; 66 L. T. 44. (See Needham v. Johnson.) Patentee Threats 78 79, 82, 83, 84 Kendall v. Hamilton . 1879 4 App. C. 516 ; 48 L. J. C. P. 705; 41 L. T. N. S. 418. Aid Prayer .... 61 Kensington, &c. Co. 1891 (1891) 2 Ch. 574 ; 64 L. Corporation .... 76 V. Lane Fox Elec. Co., Ld. T. 770; 8 R. P. C. 277. Grievance In j unction .... Ouster of 32nd section. Patentee Threats 85 88 95 77 82 TABLE OF CASES, XXVll Title of Case. Date. Where reported. Point. Where cited in this Book. Kilderby, Rex v .... (See Rex v. Kilderby.') King, Brown & Co. v. 1890 6 E. P. C. 414 ; 7 E. P. Declaration of 94 Anglo-Amer. Brush C. 436. invalidity. Corp. King's Case, Auditor . . — (See Auditor King' s Case.) Kingstcfn v. Corker . . 1892 29 L. E. Ir. 364 Procedure 92 Knight, Auto. Weigh- (See Auto. Weighing M. ing Machine Co. v. Co. V. Knight.) Knight’s Case 1588 5 Co. Eep. (pt. 2) 56 .... Construction .... 114 Kossuth, Emperor of * • • • (See Emperor of Austria Austria v. V. Kossuth.) Krupp, Vavasseur v. . . .... (See Vavasseur v. Krupp.) Kurtz V. Spence (1) . . 1886 33 Ch. D. 579; 3 E. P. Patentee 77 C. 368; 55 L. T. 317 ; Procedure 92 55 L. J. Ch. 919. Threats action . . 91 Kurtz V. Spence (2) . . 1887 36 Ch. D. 770 Procedure 92, 93, 136 Threats action . . 91 Kurtz V. Spence (3) . . 1888 5 E. P. C. 161 ; 57 L. J. Certificate of va- 93, 145 Ch. 238. lidity. Damages 91, 93 Injunction .... 86 Pleading 97 Threats 81 Lamb, In re 1894 (1894) 2 Q. B. 805 Grievance 43 Lancashire Expl. Co. 1895 12E. P. C. 483 Forfeiture 45 Ld. V. Roburite Co. Ld. Lavater, Waltons .... (See Walton v. Lavater.) Law V. Ashworth .... 1890 7 E. P. C. 88 Procedure 92 Lee V. Clarke 1802 2 East, 333 Pleading 141, 142 Legat’s Case, Arthur 1612 10 Co. Eep. 109 Certain know- 111 ledge. Construction. . . . 273 Grant 116 Mere motion .... 112 Leicester V. Heydon.. 1493 Plowd. 397 Grant 119 Levinstein, Badische, (See Badische, ^c. v. Levin- ^C. V. stein.) XXVlll TABLE OF CASES, Where Title of Case. Date. Where reported. Point. cited in this Book. Lindsay^ Gaulard and Gibbs V. .... (See Gaulard and Gibbs v. Lindsay^ Linfordy Otto v (See Otto V. Linford.) W. N. (1875) 203 Liverpool and Brazil V. L. and St. Ka- therine’s S. N. Co. 1875 Procedure 149 Loe^ Frearson v .... (See Frearson v. Loe.) L. ^ N. W. Railway^ JSolmes V. .... (See Holmes v. L. ^ H. W. Railway.) L. ^ St. Katherine's S. N. Co.^ Liverpool ^ Brazil v. .... (See Liverpool ^ Brazil \. L. ^ St. Katherine's S. N. Go.) Lord Frovost of Ferth, Hay v. .... (See Hay v. Lord Frovost of Ferth.) Lynch v. Macdonald 1888 2,1 Ch. D. 234 ; 57 L. J. Ch. 651 ; 58 L. T. 293. Joinder 138 Macdonald^ Lynch v. . . .... (See Lynch v. Macdonald.) Mackie v. Solvo 1892 9 R. P. C. 466 Injunction , . , , Threats 86 Laundry Co. Ld. MacKae v. Holds- 82 1848 2 De G. & Sm. 496 ... . Forfeiture 46 worth. Malcolmson, Flimpton V. .... (See Flimpton v. Malcolm- son.) Markham’s Case .... 1580 10 Co. Rep. 113 Construction . . , , 273 Martin, Gt. Australian G. M. Co. V. (See Gt. Aus. G. M. Co. v. Martin.) Marylehone, Garrett v. JJ. of. .... (See Garrett v. JJ. of Marylebone.) Milne v. Graham .... 1823 1 B. & C. 192 ; 2 Dowl. & Ry. 293. Penal Statute . . 52 Mines, Case of 1568 Plowd. 337 Certain know- 111 ledge. Recitals ........ 113 TABLE OF CASES, XXIX Where Title of Case. Date. Where reported. Point. cited in this Book. Minter v. Williams . . 1835 5 Nev. & M. 647 ; 5 L. J. Construction . , . . 120 N. S. K. B. 60 ; 4 Grant 116 A. & E. 251 ; 1 Har. & W.585; 1 W.P. C. 135. Mitchelt;. Reynolds .. Molyn’s Case, Sir John Monopolies, Case of . . 1711 1 P. Wms. 197 Validity 117 1598 6 Co. Hep. 6....... Grant 117 1603 11 Co. Rep. 85; IS'oy, Book of Bounty 15 173; Moore, K. B. 671 ; Especial Licence 121 1 W. P. C. 1. App. II. p. 193. Monopoly 67 Morgan^ Burt v .... (See Burt v. Morgan ^ Co.) Mussary, i?. v .... (See R. V. Mussary.) Mussory, Rex v .... (See Rex v. Mussory.) Needham v. Johnson. . 1884 1 R. P. C. 58 Construction .... 150 Needham v. Oxley . . 1863 8 L. T. N. S. 604 ; Forfeiture 46, 47 Goodeve ; 2 New Reps. 388. Neilson v. Harford . . 1841 8M. & W. 806; 11 L. J. Construction .... 115, 131 N. S. Ex. 20 ; 1 W. P. C. 310. Neilson, Reg. v .... (See Reg. v. Neilson.) Neustadt, VonHeyden v. (See Von Eeyden v. Neu- stadt.) New Brunswick Trading * • • • (See Simson v. New Bruns. Co., Simson v. T. Co.) North Br. Rail. Co., (See Caledonian Rail. Co. Caledonian Rail. Co. V. V. N. B. Rail. Co.) N. L. Rail. V. G. N. 1883 11 Q. B. D.40; 52 L. J. Injunction .... 18, 133 Rail. Q.B. 380. Nurse v. Geeting or 1834 3Dowl.P. C.158; 4 L. J. Imparlance , , . . 64 Gething. N. S.Ex. 4; 5Tyr. 179; 1 C. M. & R. 567. Nuttall^;. Hargreaves Official Receiver, Ex 1892 (1892) 1 Ch. 29 Validity. 110 (See Reed, Bowen & Co., In parte The. re.) Official Receiver, Ex (See Wells and Croft, Ex parte. Wells and Croft. parte Official Receiver.) XXX TABLE OF CASES, Title of Case. Date. Where reported. Point. Where cited in this Book. Otto V. Linford 1882 46 L. T. N. S. 39 ; Construction .... 115 Goodeve. Otto V. Steele 1885 2 R. P. C. 139 Procedure 149 Otto V. Sterne 1885 2 R. P. C. 139 Procedure 149 Overton v. Burn .... 1896 13 R. P. C. 455 Agency 78 Inj unction .... 86 Threats 82 Oxley ^ Needham v .... (See Needham v. Oxley.) Farnell, Dredge v — (See Dredge v. Parnell^ Datent Investment Co., • • • • (See Crampton v. Patent In- Limittd, Cramptony . vestment Co., Limited.) Patterson, Washhurn .... (See Washburn and Moen and Moen v. V. Patterson.) Fattison v. Gilford . . 1874 18 Eq. 263 Injunction 152 Payne, In re. Ex parte 1887 18 Q. B. D. 154 Grievance 42 Castle Mail Packet Co. Pearson, Grey v — (See Grey v. Pearson.) Penal Statutes, Case of 1605 7 Co. Rep. 36 ; see App. Book of Bounty 157 11. p. 232. Construction .... 117 Penal Statute . . 55 Penwarren v. Thomas 1561 Dyer, 198 a Sci. fa 118 Perry, Skinner v — (See Skinner v. Perry.) Piercy v. Young .... 1880 15 Ch.D. 478; 42 L. T. Procedure 147 N.S. 292. Pinney v. Hunt 1877 6 Ch. D. 98 High Court 56 Pintsch, Donglass v. . . (See Douglass v. Pintsch.) Plane, Harmer v — (See Harmer v. Plane.) Plimpton V. Malcolm- 1876 3 Ch.D. 531; 45L. J.Ch. Forfeiture 49 son. 505; 34 L. T. N. S. 340; Seton on Judgments, 5th ed. p. 565. Pneumatic Tyre Co., (See Edlin v. Pneumatic Edlin v. Tyre Co.) TABLE OF CASES, XXXI Title of Case. Date. Where reported. Point. Where cited in this Book. Postcard Automatic 1889 6 R. P. C. 560 Licensees 131 S apply Co.v. Samuel Powell’s Trade Mark. 1894 (1894) App. C. 8; 69 L. T. 60; UR P. C. 8. Grievance 42 Frice, Crane v. .... (See Crane v. Rrice.) Palpli’s Trade Mark. Eawlinson v. Stone . . 1883 25 Ch. D. 194 Grievance 42 1746 3 Wils. 4 Penal Statute . . 52 Heed, Eowen & Co., In re, Ex parte Cfi&cial Eeceiver. 1887 19 Q. B. D. 174 Grievance 42 Reeve v. Gibson .... 1891 (1891) 1 Q. B. 660; 60 L. J. Q. B. 451; 64 L. T. 141. Double Gosts . . 58 Reg. V. JJ. of Andover 1886 16 Q. B. D. 711 ; 55L. J. M. C. 143 ; 55 L. T. 23. Grievance 42 Rex V. Benchers of Lincoln’s Inn. 1825 4 B. & C. 855 ; 7 Dowl. «S:Ry.351; 28R.R.482. Mandamus .... 104 Rex V. Blunt 1738 Andr. 293 Gonstruction. . . . 270 Eeg. V. Bushopp,Richd. Alton Woods, Case of.) Rex V. Capper 1817 5 Pri. 217 Gonstruction .... 273 271 Rex v. Chester (Bishop) 1697 Skin. 651 : 5 Mod. 297 ; Garth. 440; 2 Salk. 560; 1 Ld. Raym. 292. Gonstruction .... Rext;.Chester(Bishop) Reg., Feather Y 1786 1 T. R. 404; 1 R. R. 237 (See Feather v. Reg.) Mandamus .... 104 Rex V. Kempe 1694 4 Mod. 277 ; Garth. 350 ; Gomb. 334; Salk. 465; Skin. 446; 1 Ld. Raym. 50. Validity 272 Rex V. Kilderby .... 1669 1 Wms. Saund. 309 b, n. 5. Pleading 39, 140 Rex V. Massory 1738 Andr. 295 Gonstruction .... 270 Rex V. Mussary 1738 1 W. P. G. 41 ; App. V. p. 268. Gonstruction .... Recitals 113, 114 109 Reg. V. Neilson 1842 1 W. P. G. 673 l^ci. Ja Gonstruction .... 118 Rex V. Rochester and Clark. 1686 1 Mod. 195 ; 2 Mod. 1 ; 3 Keb. 412. 273 XXXll TABLE OF CASES. Title of Case. Date. Where reported. Point. Where cited in this Book. Rex V. Wyndliani .... .... 1 Cowp. 378 Mandamus . , , . 104 Rex V. JJ. of York . , 1834 1 Ad. & E. 834 Penal Statute . . 62 Eeynolds, Mitchell v. . , .... (See Mitchell v. Eeynolds.) Eichardson, Universities .... (See Universities of Oxford of Oxford and Cam- and Cambridge v. Eich- bridge v. ardson.) Eoberton^ Bailey v. . . — (See Bailey v. Eoberton.) Eohertson, Cadell v. . . .... (See Cadell v. Eobertson.) Eoburite Exp. Co. Ld., (See Lancs. Exp. Co. Lancs. Exp. Co. Ld. Ld. V. Eoburite Exp. Co. V. Ld.) Eoyle, Challender v. . . — (See Challender v. Eoyle.) Eussell, Bedell v — (See Bedell v. Eussell.) Russell V. Cowley .... 1835 1 C. M. & R. 864 ; 1 W. Procedure 150 P. C. 465. Rutland’s Case, Earl 1608 8 Co. Rep. 56 a Construction .... 114, 115 of. Sackville College, Case 1669 Raym. 179 Validity 109 of. Salt V. Cooper 1881 16 Ch. D. 549 ; 50 L. J. High Court .... 66 Ch. 579. Samuel, Fostcard Auto. • • • t (See Fostcard Auto. S. Co. S. Co. V. V. Samuel.) Sandys, E. India Co. v. — (See E. India Co.y. Sandy s.) Sharp V. Brauer .... 1886 3 R. P. C. 193 Procedure 97 Sharp, Brauer v (See Brauer v. Sharp.) Shew, Skinner v .... (See Skinner v. Shew.) Shrewsbury’s Case, 1611 9 Co. Rep. 47 Grant 116 Earl of. Validity 109 Siddell, Vickers v .... (See Vickers v. Siddell.) Sidehotham, Ex parte 1880 14 Ch. D. 465 ; 49 L. J. Grievance 41, 42 Bk. 41 ; 42 L. T. 783. TABLE OF CASES, XXXlll Title of Case. Date. Where reported. Point. Where cited in this Book. Simson v. New Bruns- wick Trading Co. Skinner v. Perry . . . . Skinner v. Perry . . . , Skinner v. Shew . . . . Skinner v. Shew . . . . Smith V. Hargrove . . Snell, Ward v Societe Anon. &c. v. Tilghman’s, &c. Co. Societe Anon., In re Trade Mark of. Solvo Laundry Co., Mackie v. So. Counties Bey. Bk., Tuck Y. Spence, Kurtz v. Spencer, Earl v. Swan- nell. Squire, Serrhurger v. Stationers’ Co. v. Car- nan. Steel, Otto V Sterne, Otto v Stone, Rawlinson v. , . G. 1888 1,892 1894 1892 1894 1885 1883 1894 1838 5 Times E,. 148 67L.T.696; lOR.P.C.l. (See Skinner v. Shew.) 63L. J.Ch.826; llR.P. C. 411. (1893) 1 Ch. 420. (See Skinner v. Berry.) (1894) 2 Ch. 581 16 Q. B. D. 184 (See Ward v. Snell.) 25 Ch. D. 11 ; 53 L. J. Ch. 1 ; 49 L. T. 451. (1894) 1 Ch. 61 ; (1894) 2 Ch. 26. (See Mackie v. Solvo Laundry Co.) (See Tuck v. So. Counties Bep. Bk.) (See Kurtz v. Spence.) 3 M. & W. 163 ; 6 Dowl. P. C. 326; 7L.J.N. S. Ex. 73. (See RerrhurgevY. Squire.) 2 Wm. Bl. 1003 (See Otto Y. Steel.) (See Otto Y. Sterne.) (See Rawlinson v. Stone.) Procedure Damages Injunction 32 nd section . . . . Threats Grievance Common law . . Injunction . . . . Licenses Monopolies . . . . Privilege 32nd section . , , . Threats Damages Procedure Injunction , . . . Licensees Grievance Penal Statute Prerogative 148 91 134 75 71 85 72 93 99 11 76, 79 75, 85 17,71,78, 80, 82, 84, 135 91 148 86, 88 131 43 53, 56 225 XXXIV TABLE OF CASES. Title of Case. Date. Where reported. Point. Stott, Tangtje v (See Tangye v. Stott.) SuEfST v. Bray 1885 2 E. P. C. 246 Common law Suggi JJngar v (See TIngar v. Sugg.) Swannell, E. Spencer v. .... (See Spencer Y. Swannell.) Sykes v. Eowarth. . . . 1879 12 Ch. D. 832 ; 48 L. J. Ch. 769 ; 41 L. T. N. S. 79. Grant Infringement Patent Grant Tangye v. Stott 1866 14W.E.386;W.N.(1866) 68. Forfeiture . . . , Tasmanian Co. v. 1879 27 W. E. 677 Procedure i Clarke. Taylor, Willoughby v. .... (See Willoughby v. Taylor.) Taylors'* Case, Ipswich .... (See Ipswich Taylors'* Case.) Thomas v. Hunt .... 1864 17 C. B. N. S. 183; Goodeve. Licensees . . . , Sole Privilege Thomas, Eenwarren v. . .... i^eePenwarrenY. Thomas.) Thompson, Sill v — (See Sill v. Thompson.) Thompson, Isaacson v. .... (See IsaacsonY. Thompson.) Thomson, Dudgeon v. . . .... (See Dudgeon v. Thomson and Another.) Tilghman* s, ^-c. Co., Societe Anon., %c. v. .... (See Societe Anon., ^-c. v. Tilghman* s, ^c. Co.) Tomlins, Wigley v — (See Wigley v. Tomlins.) Tuck V. So. Counties Bep. Bank. 1889 42 Ch. D. 477 ; 60 L. T. 885. Pleading , . . TJngar v. Sugg 1892 8E. P. C. 388; 9E.P. C. 113. Agency Damages . . . Threats Union Elec., &c. Co. v. Elec. Power St. Co. 1888 38 Ch. D. 327 ; 57 L. T. 791. Procedure , . . Enited Telephone Co., • • • • (See Barney v. Z7. T. Co.) Barney v. United Telephone Co. V. V/alker and 1887 4 E. P. C. 64; 56 L. T. 508. Forfeiture . . . Another. Where cited in this Book. 16 116 127 106 48 149 123, 128 122 62 77 90, 91 78,79,83 92 45, 51 TABLE OF CASES. XXXV Title of Case. Date. Where reported. Point. Where cited in this Book. Universities of Oxford 1802 6 Ves. 689 Grant 118, 119, and Cambridge v. 123, 225 Richardson. Pre j udicial Grant 130 Van VVssengen, Cald- • • • • (See Caldwell v. Van VUs- tvell V. senyen.) Vavasseur v. Krupp . . 1878 9 Ch. D. 354 ; 39 L. T. Forfeiture ...... 60 N. S. 437. Vernon’s Case 1572 4 Co. Hep. 5 Estoppel 57 Vickers v. Siddell .... 1890 15 App. C. 499 Validity. no Von Heyden v. Neu- 1880 14 Ch. D. 233 ; 42 L. T. Construction .... 115 stadt. K S. 300. Grant 125, 126 Patent Grant . . 106 Walker v. Clarke .... 1887 56 L. J. Ch. 239 ; 4 E. Grievance 85 P. C. 113. Injunction .... 86 Threats 81, 8i4 Walker, TT. T. Co. v. . . .... (See XT. T. Co.y. Walker.) Waltham v. Austin . . 1599 8 Co. Eep. 125 a. ...... Forfeiture 45 Walton V. Bateman . . 1842 1 W. P. C. 613 Grant 116 Infringement . . 128 Patent Grant . . 106 Walton V. Lavater . . 1860 8 C. B. N. S. 175; 29 Construction. . . . 120 L.J.C.P. 275; Goodeve. Patent Grant . . 106 Ward, Day v .... (See Day v. Ward.) Ward V. Snell . . ^ - t - 1788 1 Hy: Bl. 13 Penal Statute . . 62 Warter v. Warter. . . . 1890 15 P. D. 36; 62L.T.328. Joinder 137 Washburn & Moen v. 1884 1 E. P. C. 162 Forfeiture 60 Patterson. Waterloo, ^c. Co., Drif- .... (See Driffield, ^e. Co. v. field, ^c. Co. V. Waterloo, ^c. Co.) Watson V. Holliday . . 1882 20 Ch.D. 782; 30 W. E. Damages 129 747. Infringement . . 117 Weardale I. ^ C. Co., .... (See Eden v. Weardale I. ^ Eden v. C. Co.) Weild, Wren v .... (See Wren v. Weild.) Weld, Brewster v .... (See Brewster v. Weld.) Wells & Croft, Ex 1895 72 L. T. 361 Double Costs . . 68 parte 0. R. XXXVl TABLE OF CASES. Title of Case. Date. Where reported. Point. Where cited in this Book. 1824 3 B. & C. 186 Pleading 52 Whitaker^ Boyce v. . . (See Boyce v. Whitaker^ Whittingham, Cooper .... (See Coopersr. Whittingham.) Wigley, Bainbridge v. — Bainbridge Y. Wigley.) Wigley V. Tomlins . . 1834 3 Dowl. P. C. 7 Imparlance .... 64 Wilkinson v. Colley . . 1771 5 Burr. 2698 Penal Statute . . 52, 56 Williams, Minter v. . . .... (See Minter v. Williams.) Williams v. Williams . 1817 3 Mer. 160; 17 B. 11.49.. Bounty 107 Willoughby v. Taylor. 1894 11 R. P. C. 52 Certificate of 93 validity Damages 91, 93 Threats 76,79, 84 Wilmott, Betts v .... (See Betts v. Wilmott^ Wilson V. Walter E. 1885 2 R. P. C. 175 Injunction .... 85 Church Eng. Co., Limited. Wood, Easker v .... (See Easker v. Wood.) Wren v. Weild ...... 1869 4 L. R. Q. B. 730; 10 B. Ttona fides 39 & S. 51; 38 L. J. Q. B. Common law . . 12, 75 327; 20L.T.N.S. 1008. Threats 71 Wright, Eassall v .... (See Eassall v. Wright.) Wyndham, Bex v .... (See Bex v. Wyndham.) York, JJ. of, Bex v. . . .... (See Bex v. JJ. of York.) Young’s Patent Circa. Lawson, 105 Sci. fa 118 1859 Young, Biercy v .... (See Biercy v. Young.) MONOPOLIES BY PATENTS. CHAPTEE I. INTRODUCTORY. The present condition of tLe Patent law, with reference to those remedies which it provides for the public against the abuse of patent right, is capable of being stated only in the form of an historical summary. The difficulty of putting it into the form of theorem arises from the circum- stance that conflicting decisions, inconsistent Acts of Par- liament and long disuse of the principal remedy provided by law have brought it into a state of confusion which, apart from the historical causes leading to this result, would be quite unintelligible. A brief summary from this point of view of the history of the Patent law will there- fore be submitted as an introduction to the present work. The story takes its rise at a period rich in the begin- nings of English law, and may fitly enough be dated as of the year 1600. The singularly able monarch who at that date both reigned and ruled had stretched the prerogative of interference in the course of trade to the breaking poihP. The oppressions practised in her name, and under authority of her patents, had produced a reaction in the public mind which, with less skilful management than she brought to bear upon affairs of State, might easily have given occasion to a political convulsion. Queen Elizabeth, however, with her accustomed tact, staved off the evil hour. She compromised the dispute by means of fair words and a State function, and afforded some relief from the mischief complained of, by recalling a few of the most flagrantly iniquitous of her monopoly grants. It G. B Present state of the law. Beginnings of the Patent lawJ 2 INTRODUCTORY. Popular feeling about monopolies. Case of Monopolies. Darcy v. AVin. See p. 193. \_Chap, I. would be easy, judging from the facility with which she quelled the storm, to imagine that the whole agitation had been the work of a few unquiet spirits, and had no broad foundation in the general and popular indignation. So to judge would, however, be greatly to misunderstand the facts. The strength of the popular feeling is indicated by the strength of the measures which were adopted to repress the evil, and is justified by statements which have been left to us concerning the manner in which patent rights at that date were put in execution. The following passage from D ’Ewes’ Journal of the Parliament of 1601 is very instructive on this point : — “ Mr. Spicer, burgess of Warwick, stood up and said . . . The substitutes (a) for aquavitse and vinegar came not long since to the town where I serve, and presently stayed sale of both these commodities ; unless the sellers would com- pound with them, they must presently to the Council Table. Myself, though ignorant, yet not so unskilful, by reason of my profession, but that I could judge whether their proceedings were according to their authority, viewed their patent and found they exceeded in three points for where the patent gives months’ liberty to the subject that hath any aqua- vitae to sell the same, this person comes down within two months and takes bond of them to his own use where he ought to bring them before a justice of the peace, and they there be bound in recognizance, and after to be returned into the Exchequer, and so by usurpation retaineth power in his own hands to kill or save” {b). It was not in the House of Commons alone that the grievance of these monopoly grants found articulate ex- pression. In the year 1602 the celebrated Case of Mono- polies came before the Court of King’s Bench, and there the popular doctrine appears to have been stated with ad- mirable completeness by Croke, Doderidge and Fuller (c) {a) 7. ff., the patentee’s deputies. {b) D’Ewes, 644. (c) Coke says Croke, Altham and Tanfield, 11 Rep. 86b, but this is probably a mistake. See below, p. 201. THE CASE OF MONOPOLIES. 3 Chap, I.] arguing against the patent for the manufacture of playing cards. The judges evidently regarded this case as one of very unusual importance. In giving judgment they made an exhaustive statement of the common law upon the sub- ject and they did not limit themselves to the statement of the law ; they traced it to its foundations in the principles of economics and expatiated upon the inconvenience of monopolies in language which has become classic in this connection. The law which they then laid down has since become the law not only of England, but of America, of most of the British Colonies and of not a few foreign States. It is probably destined to become in the end a recognized principle of all civilized jurisprudence and con- stitutes in itself what is, perhaps, one of the most valuable contributions which British jurists have ever made to the theory of law. This judgment was not delivered until after the Queen’s death but the questions which had become so acute at this particular point of time were laid at rest by the line of conduct adopted by her during the short remainder of her reign. Nevertheless she bequeathed to her successor an open question concerning the extent of the prerogative, and, what for him was still more serious, a most seductive temptation to adopt an unpopular policy. The prerogative of inter- ference in matters of trade, which Elizabeth had so effectually asserted and so skilfully preserved, afforded to James an irresistible temptation to transgress the limits of prudence. It is not easy now to ascertain what precise attitude Policy of King James at first assumed towards the burning question of monopolies, but there is some reason for thinking that in the beginning of his reign he suffered himself to be advised upon the subject, and was content to abstain from transgression of what had been ascertained to be the limits of the prerogative in this particular. A significant but somewhat obscure observation by Sir Edward Coke, that the “ judgment in Lamfs Case (the Case of Monopolies) B 2 4- INTRODUCTORY. The Book of Bounty. See below, p 157. James’ Speech to Parliament. was a principal motive for tlie king’s book ” {d), points in this direction. It would seem to follow from this that the decision of the judges in that case had been brought pointedly under the king’s notice, and that he had signified bis willingness to recognize it as authoritative upon the question of the nature and extent of the prerogative in question. Quite consistent with this view is the language of the book itself, which, however, will be more conve- niently considered a bttle later on in the course of this review. But whatever the steps by which it was reached, a position was established in the year 1609 which can be easily described. In the first place, the king had resolved to assert his personal authority in a more peremptory manner than heretofore, and conveyed this resolution to the Parliament in “ one of his lectures at Whitehall ” in which he explained that the power of kings re- sembled the power Divine. “ For as Glod can create and destroy, make and unmake, at his pleasure, so kings can give life and death, judge all, and be judged of none. They can exalt low things and abase high things, making the subjects like men at chess, a pawn to take a bishop or a knight ”(e). And Wilson, who, if he does not quote his language, certainly ascribes to the king no sentiments but those with which he was supposed to be animated at this time, remarks, in con- nection with the dissolution of this Parliament, that “ being now seasoned with seven years’ knowledge of his profession here (/), he thought he might set up for himself, and not be still journeyman to the lavish tongue of men that pryed too narrowly into the secrets of his prerogative ” (^) . It is indeed true that he did not in set terms threaten to infringe upon the rights of his subjects. But there were many collateral circum- stances which gave a sinister significance to hints such as The Book of Bounty. See below, p 157. James’ Speech to Parliament. {d) 3 Inst. 182. (/) I.e., in England. {e) 2 Kennett, 682. (y) 2 Kennett, 684. 5 Chap, I.] DISTKUST OF THE KING IN 1610. these. In the first place, there were the notorious facts The King’s that the king was sorely pressed by want of money, and that his necessities arose from expenditure upon what was euphemistically called the royal ‘‘ bounty.’’ The king said that this expenditure was indispensable ; that the cere- monial incident to the royal progress from Edinburgh to London, the reception of embassies of congratulation, and the return of such compliments was costly and in- evitably so ; that he would be unworthy of his great position if he were parsimonious on such an occasion and in reference to such matters. His critics, on the other hand, asserted that he had most unwarrantably diverted the stream of English wealth into the channel of Scottish well-being and that since the king’s accession to the throne of England gold had become as plentiful in Edinburgh as it had been in Jerusalem in the days of Solomon and that silver, as under the Hebrew monarch, was “ nothing accounted of ” — that is to say, in the capital of Scotland. The grant of patents, being a source of royal bounty which it was singularly easy to set flowing, was naturally drawn upon for the purpose of satisfying in part what the king conceived to be his obligations in this respect and the English people, mindful of the extravagant pitch to which this abuse had been carried by Queen Elizabeth, were vigilant and insistent in their remonstrances. A second circumstance which made the people of 1610 suspicious of the king’s design to govern personally was the fact that he was supposed to have spoken disparagingly of the English common law in connection with an en- comium passed upon Hr. Cowell’s ‘‘ Interpreter ” {li). That Dr. Cowell’s this expression of opinion gave great offence is abundantly evident from the apologetic language employed by the king when explaining away his unfortunate deliverance in the lecture,” from which a quotation has been already made, delivered to the Parliament in 1609 {%). (A) 2 Kennett, 681. (i) See 2 Kennett, 682. 6 INTRODUCTORY. Popular feeling in 1610. \JJha]p, I. It was indeed a most reasonable apprehension that if the king were to become a personal ruler after the model of the Tudors, and withal to cast the English common law aside, no limit could be set to the revolutionary changes, in which such a departure might be expected to eventuate. Yet a third circumstance deserves to be mentioned in this connection. The year 1610 saw the proclamations of King J ames collected in a volume and published in book form and from this the inference was drawn that it was intended, by republication in a formal shape, to give to these proclamations a new validity and place them more or less, perhaps altogether, in the position of laws. It is not surprising that circumstances such as these should have produced in the public mind a profound feeling of unrest. The king’s necessities, the aggressive tone which he had assumed and the disloyal views which he was believed to harbour combined to produce a state of ajDprehension which easily gave rise to excessive and ungrounded fears. That there was real cause for alarm the history of the subsequent years abundantly proves but it is easy to believe that the alarm, as is its wont, was in excess of its cause and that the king did not at this time contemplate measures so extreme as were attributed to him by those whose opinions were largely moulded by their fears. If the facts corresponded in any measure to the sketch here given it will be abundantly clear that the king was deeply interested at this time in allaying the apprehensions which his own conduct had aroused and it is possible to acquit him entirely of conscious insincerity in the steps which he took to set the public mind at rest. One of these steps was the apologetic speech to the Parliament already referred to above. Another was the publication of the King’s Book of Bounty — a remarkable volume, re- markable chiefly, perhaps, for what may be termed its career. THE BOOK OF BOUNTY. 7 Cha]p. I.] The contents of this book need not be considered at The Book of large in this place, for the document itself, being now fe^bdow, republished as a part of the present volume, can be con- P- suited by the reader (^'). But it is, perhaps, not immaterial when considering it to bear in mind the motives which have been here conjecturally put forward for its publica- tion. If it be Correct to suppose that the king did not at this time intend to stretch the limits of the prerogative heyond the point to which it had been carried by the im- perious Queen who had preceded himself upon the throne — and even an aml^tious monarch might be well content to respect those limits — if, moreover, he honestly desired to convince his people that he did not contemplate any trans- gression of these recognized boundaries, then it would evidently be his endeavour to mould his declaration upon the recognized law of the land and it would be most natural that he should found upon the solemn deliverance of the bench of judges which decided the Case of Mono- polies. This agrees exactly with what Sir Edward Coke tells us (/), and it agrees also with what is said in the preamble of the Statute of Monopolies (y). In any case, the fact is undeniable that this declaration is drawn up with scrupu- lous regard to the common law and the doctrine of pre- rogative as ascertained in the year 1610. But notwithstandiog the happy auspices amid which it first saw the light, the king’s book did not achieve any notable success. The stream of royal bounty continued to fiow and suitors, under more or less plausible pretexts, continued to apply for the prohibited monopolies and to secure them. When next the Parliament met effectively, in 1621, this grievance had assumed serious proportions and a strenuous effort was made by the representatives of the people to deal in an effective manner with the whole subject. But the difficulty of legislating upon this subject in a popular sense was extreme. As trenching (/) 3 Inst. 182, and see above, p. 4, {g) See below, p. 23. {e) See below, p. 161. 8 INTRODUCTORY. Statute of Monopolies, See below, p. 21. \Clia]p, I. upon the prerogative, the discussion itself was disagreeable in the last degree to James as it had been to Elizabeth and if it should become a question of cutting down the kingly power only the pressure of an absolute necessity would extort the king’s consent. The promoters of the new statute were compelled there- fore to walk warily and they hit upon the ingenious expedient of erecting the king’s own declaration into a statute, thus securing for themselves the benefit of that statement of the law which he, in a moment of candour, had made many years before while they ^t the same time allayed his susceptibilities on the subject of the prerogative by exploiting his own language for the purposes of the new Act. This is apparently the significance of Sir Edward Coke’s observation that the book moved the King to give the royal assent to this Act of Parliament (A). As some considerable importance may attach to the circumstances which gave shape to this statute, it is proper here to draw attention to the fact that Dr. Grardiner appears to take a somewhat different view from that here developed of the king’s share in the preparation of the ‘‘ Book of Bounty.” His view will be found in a letter which I am enabled by his permission to publish in the Appendix (^). Perhaps, however, it does not make any very great difference whether the king was or was not per- sonally committed in his own opinion to the propositions of law contained in his declaration of 1610. If it were so, the task of persuading him to give his assent to the Bill would no doubt be all the easier for those who had to perform it. But whatever the difficulties were, the fact is that they were surmounted, and the interest of the histori- cal facts concerning the transactions by which the royal assent was procured lies almost entirely in the very notable use which is made of the word “monopolies” {k). The Act, in its main clauses, follows very closely the decisions (A) 3 Inst. 187. (i) See below, p. 158. (A) See below, p. 25. 9 Chap, I.] THE STATUTE OF MONOPOLIES. in the Cases of Monopolies and Penal Statutes, its scheme Statute of being first to authenticate the statement of the law which in those cases was made upon the authority of the judges and then to create machinery for giving effect to the law as so defined. From this point of view the most important parts of the statute are the second, third, and fourth sections. That these were regarded by the framers of the Act as its principal provisions might he inferred from the position which is assigned to them, even if we were not aware of the discussions which led up to them. For it is to he observed that these three sections follow at once upon the definition of the law, that they embody the immediate and practical consequences of that definition and that all that follows is only in the nature of saving and creates excep- tions to the rule which the first four sections comprise. A very curious commentary upon this view, that the first four sections are the essence of the Act, is, however, afforded by its history in the Courts, for almost all the discussion which has taken place concerning it has related to the interpretation of the sixth section. A slight examination, however, shows that much more than this may be set down to the irony of fate. Taking the first four sections in First section, order ; the first section incorporates the Book of Bounty in the English statute law and the Book of Bounty has for upwards of 200 years been to all intents and purposes a lost document. The second section probably, at the time at which it was Second passed, served a most useful and necessary purpose but it has long been completely obsolete. It provides that patent rights shall be tried and determined only according to the common law. This provision has, until recent years, been very strictly observed, not however, because of the statute, which does not indeed appear to have ever attracted notice, but because, prior to the changes in common law procedure which have been introduced within the last fifty years, the practice of the tribunals prevented Equity Courts from 10 INTRODUCTORY. \_Chap, I. statute of entertaining the substantive questions to which patent Monopolies. Even before that time Courts of Equity made no scruple about issuing injunctions in support of rights which had been vindicated at law or which were in course of being so established and at the present day it certainly would puzzle anyone to say in what sense patent rights can be said to be within the exclusive jurisdiction of the Common law. Third section. Passing to the third section, we find a provision disabling all persons to hold or exercise monopoly rights ; a provi- sion which probably in its inception was inserted as a matter of superabundant caution and was never expected to have any great practical significance. Certainly, what- ever its authors thought of it, legal practitioners have never been able to turn it to any account. is brings us to the fourth section of the Act which has had a history the most remarkable of all. There can- not be a doubt that this section was intended to be the great bulwark of the public right against the encroach- ments and oppressions of monopolists. It is penned with the utmost care. Nothing is omitted that could facilitate proceedings on the part of an aggrieved person in asser- tion of his rights. The causes of delay and hindrance in the prosecution of the action were, as far as possible, excluded by striogent provisions relating to procedure. Belief given to a successful plaintifi: was to be upon the amplest scale, and by virtue of the position into which the law had been brought by the form of its enuuciation in the first section the presumptions of law were all to be in the plaintifi’s favour. It is, perhaps, not over-rash to assert that never has ampler provision been made for the protection of an oppressed class against their oppressors short of enactments which convert the oppressive act into a crime. Of civil remedies this one might be adduced as an example of the utmost that it is in the power of Par- liament to do in the way of arming the weak against the strong. MONOPOLIES. 11 Chap, I.] It stands to reason that such extraordinary measures The mischief, could only have been taken for the purpose of dealing P- ^5. with a mischief of an egregious kind. And, indeed, it is hut a commonplace observation upon the history of that time that the mischief was egregious and, in the then existing temper of the public mind, insupportable. This mischief has never wholly ceased to exist ; patent rights are no longer a weapon in the hands of the Crown, they can no longer be used for the oppression of the public at large, they can no more give rise to serious constitutional difficulties. But, though shorn of their old terrors, they have never ceased to be matters of capital importance for good or ill in relation to trade and industry. Even at the present day a large importance must be assigned to the considerations embodied by Lord Justice Bowen in the following passage from his judgment in Skinner v. Shew (/), “ Now, every person of common sense knows what is in- volved in patent actions, and what the expense of them is, and everybody knows that to be threatened with a patent action is about as disagreeable a thing as can happen to a man in business and is the thing most calculated to paralyse a man in his business, even if he be innocent of any infringe- ment of patent law.’’ Moreover, it is not alone actions upon patents which are apt to embarrass the course of legitimate trade. The growing tendency of patentees to have recourse to threats of legal proceedings, and particularly to address their threats to customers and other persons whose interest in the threatened industry is comparatively small, has within our own times given to patent rights — indeed, to patent grants whether good or bad - a character and im- portance at once new and formidable. The interest of the public in an available remedy against the encroachments of patentees has, therefore, never ceased to be a matter of great and pressing importance. It has, of course, varied in importance from time to time ; it has derived its im- portance, now from one source, again from another, but it (0 (1893) 1 Ch. 424. 12 Action upon the fourth section. See p. 52. JFren v. Weild. See p. 71. INTRODUCTORY. [_Chap, I. has always been a matter in which vast interests were involved. All this, notwithstanding, there is no record that any action has ever been brought upon this section. The section itself remains upon the statute book, and is unquestionable law at this moment. The obsolete sections of the statute were pruned away by the Statute Law Eevision Act of 1863 (m), and the phraseology of sect. 4 was resettled by that of 1888 [n). It has received the official sanction of recent repubITcation in its present form in the second revised edition of the statutes. Yet it has suffered eclipse by a loDg series of decisions in the Courts which are irre- concilably at variance with its provisions and it was conspicuously ignored in the drafting of the Patents,. Designs and Trade Marks Act of 1883. To this point our narrative may now proceed. The source of the confusion in recent times can be distinctly traced. It starts from the action of Wren v. Weild (o). In that case the action was shaped as an action of slander of title and the slander complained of was a statement to the effect that certain spooling machines were infringements of the defendant’s patents. The statement was made to intending purchasers from the plaintiff and the case was argued and decided entirely upon the law of slander. It can hardly be doubted that the grievance complained of in this case fell within the very ample provisions of the fourth section of the Statute of Monopo- lies. The plaintiff, according to his declaration, was a person who had been “ hindered and grieved ” by occasion or pretext of a monopoly which is all "that is required to bring him within the protection of the Act. At the Inal he proved that his intending customers had refused to buy his machines by reason of the defendant’s threats. There was no dispute that the defendant had insisted upon his patent rights, and that it was by virtue of his patent that he had succeeded in preventing the plaintiff from selling (m) 26 & 27 Viet. c. 125. (n) 51 Viet. c. 3. (o) L. R. 4 Q. B. 730. WREN V, WEILD. 13 Chap. I.] his machines. It would seem, therefore, that_an action grounded upon the statute must h^elain and that in such an action the defendant would have been at the disadvantage of being compelled to br ing himself within the exception created by the sixth section of the statute ; in other words, that the validity of the patent must have come into question and that only by establishing that validity could the de- fendant make out his defence. Curiously enough, however, the action was not grounded upon the statute. It was considered to raise a new point and one which was recog- nized as being a point of capital importance in connection with Patent law. It was argued accordingly and with great wealth of authority drawn, some of it, from Croke’s Eeports and Coke’s ; that is to say, from dates anterior to the Statute of Monopolies. But the statute itself was not so much as mentioned either in the arguments or the judg- ments and the only question discussed was whether under the law of slander the plaintiff was entitled to recover damages for the inj ury that he had suffered. In accord- ance with this view the plaintiff pleaded that the defendant’s allegations had been falsely and maliciously made and throughout the case, both in argument and judgment, it seems to have been assumed that the false and malicious character of the allegations complained of was essential to the cause of action. Deciding upon this restricted ground, and without any reference to statutable rights, the Divisional Court held that, “ where a person claims a right in himself which he intends to enforce against a purchaser, he is entitled, and, indeed, in all fairness bound, to give the intending purchaser warning of such his intention ; and consequently no action can lie for giving such preliminary warning unless either it can be shown that the threat was made mala fide^ only with the intent to injure the vendor and without any purpose to follow it up by an action against the purchaser, or circumstances were such as to make the bringing of an action altogether wrongful” {p). (p) L. R. 4 Q. B. 735. Wren v. Weild. 14 INTRODUCTORY. Wren v. Weild. Ralsey V. Brotherhood. See p. 72. \_CJiap, I. And further that, “ as soon as it was shown in evidence that the defendant really had a patent right of his own and was asserting it the occasion privileged the communi- cation and the jdaintilfs were hound to prove such malice as would support the action.” . . . “ The advisers of the plaintiffs seem to have thought it was enough to maintain this action to show that the defendant could not really have maintained any action, and that, if well-advised, he would have been told so, so as in this action indirectly to try the question whether an action for the infringement of the patent could have been maintained ; whereas, as we think, the action could not lie, unless the plaintiffs affirma- tively proved that the defendant’s claim was not a hona fide ’claim in support of a right which, with or without cause, he fancied he had hut a maid fide and malicious attempt to injure the plaintiff by asserting a claim of right against his own knowledge that it was without any foundation.” In accordance with the view that malice was of the essence of this action, it was held that the plaintiff could not he allowed to dispute the validity of the patent. Tiie doctrine of Wren v. Weild was explained in Halsey V. Brotherhood [q). The facts in that case were not mate- rially different from those in Wren v. Weild and the only real distinction between the two cases seems to have been that in Wren v. Weild the relief sought was damages, whereas in Halsey v. Brotherhood, although a formal claim for damages was introduced, the plaintiff’s real object was to obtain an injunction. The importance of Halsey v. Brotherhood lies in the circumstance that the principles embodied in IT ren v. Weild are stated much more broadly and pushed farther than in the original case. In deciding Halsey v. Brotherhood the Master of the Holls (Jessel) held : — “ The plaintiff must make out, if he wants to maintain an action for damages, that the defendant has not been acting bond fide. If he wants an injunction he id) 15 Ch. D. 514. 15 Cliajp. I.] HALSEY V. BROTHERHOOD. must make out that the defendant intends to persevere in Bahey v. making the representations complained of, although his allegation of infringement hj the plaintiff is untrue’’ (r). In the Court of Appeal the decision of Halsey v. Brother- hood was made to rest principally upon the authority of Wren v. Weild, and there again the case was disposed of as being simply an action in the nature of slander of title (s). Lord Justice Baggallay states the law as follows (p. 3ti0) : — “ The defendant’s patent must be assumed to be valid, there having been no proceeding by scire facias to set it aside, and, assuming it to be a valid patent, he is entitled to all the rights and benefits which it conferred upon him and I take it to be the result of the case to which I have already referred that he was entitled to state that the engines manufactured by the plaintiffs were infringements of his patent and to threaten proceedings against any person in respect of such infringement, pro- vided he observed the rule that those threats must have been made by him with reasonable and probable cause.” Lord Justice Lindley (p. 392) summarises Wren v. Wei/d and adopts the decision in that case in the follow- ing terms : — “If I am a patentee, so long as I act honestly I am entitled to say, without running the risk of having an action for damages brought against me, that somebody is infringing my patent or that somebody else’s manufacture is an infringement of my patent. If I say that honestly, I am not liable to an action for damages. If I say it dis- honestly I am so liable and if I know that what I say is untrue, it would not take much to persuade a jury that I was acting dishonestly and then an action for damages would lie. The absence of reasonable and probable cause would be proved as against anybody who kept on making such allegations dishonestly ; but so long as the patentee makes such allegations honestly, Wren v. Wei/d shows that (r) 15 Ch. D. 523. (s) 19 Ch. D. 388. 16 INTRODUCTORY. [_Chap, I. Halsey v. Brotherhood. Patent Act, , i 1883, s. 32. I ‘ See pp. 71, 243. no action lies against him. It seems to me also that no in- junction will lie against him so long as he acts honestly. But if it is proved that his statement is false to his know- ledge and there is reason to suppose that he intends to repeat those false statements an injunction ought to lie because he would be about to do that which he has no right to do. That, however, is not the theory upon which this action is brought. This action is brought upon the theory that the question of honesty or dishonesty is immaterial. That appears to me a mistake and I think the Master of the Bolls was right in dismissing the action without prejudice to any other action based upon different prin- ciples.” It is worthy of notice that in both these leading cases the law was expressly stated with reference to slander of title and in Halsey v. Brotherhood a reservation was made in view of the possibility that the case might have been shaped so as to wear a different legal aspect. In later cases these principles have not always been stated in the language in which they were originally formulated; it thus happens that dicta may be found importing that the rights of a plaintiff grieved by the proceedings of a patentee are, at common law, even less than was conceded in Halsey v. Brotherhood, (t) The law having been settled by the Courts in this sense, it became necessary to provide some remedy for persons harassed in their trade by the threats of patentees to whom the decisions of the tribunals had afforded a much easier and more effective way of enforcing their claims than by an action at law and who were not slow to take advantage of the facility for encroaching upon the public right which was thus afforded to them. The new remedy was given by the thirty-second section of the Patents Act, 1883. It is quite plain that in the drafting of this clause the fourth section of the Statute of {t) See Sugg v. Bray, 2 R. P. C. 246. THE ACT OF 1883. 17 Chap. I.] Monopolies was entirely overlooked. The Act of 1883 Patent Act, "" — •' *. ssct 32 deals only with the single case of interference on the part of the patentee with the plaintiff’s trade by means of threats. This, as has been shown above in the discussion of the case of Wren v. Weild, is covered by the Statute of Monopolies and, so far as the action for damages is concerned, the relief obtainable under the earlier statute is much more ample than that obtainable under the Act of 1883. Had the Statute of Monopolies been present to the mind of the draughtsman he must either have limited the Act of 1883 to cases for which the Act of James did not provide or, more probably still, have repealed or materially a mended t he fourth section of the Statute of Monopolies. For this latter course good grounds of argument could Ea^ Jbeen adduced. The remedy given by the section which, so far as la w books show, ^s n ever been applied in pracfe!e'^ctfift'\^liMi*T^ ' plefefyTost to knb'v^'ffge^^BaTIJvnnmeTexS^I^^ £ reinedy couITTLarSyb^ consid Weci ' I o ' Se*^ matter of any public moment and there could not have been, upon practical grounds, much reason for hesitating about its repeal. If, however, it had been brought to the knowledge of the Legislature that such a remedy existed it is highly im- probable that Parliament would have consented to take it away without supplying some more adequate equivalent than is afforded by the thirty-second section. Although it is quite certain that the Legislature of to-day would not re-enact the" provisions in this respect of the Statute of Mdht^hffe&it Js more than probable , that Parliament would have gone much farther for the purpose of preserving the old remedy to the‘publi?than for The purpose of creating a new one. TP was at the Time supposed, and has repeatedly @ T!H^a ^ t ime keen si atei(i>that t'MA^ gives a new right of action {u). i (u) Combined f ^c. Go. v. Shew, (1893) 1 Ch. 420. Automatic, ^c. Co., 42 Ch. D. 668; Skinner \. 18 INTRODUCTORY. Statute of Monopolies and Patents Act com- pared. See below, p. 135. See below, p. 133. Sect. 4 and sect. 32 compared. See below, p. 134. \Chajp, I. In a sense this is quite true. The right of action given by that section is undoubtedly additional to the action for slander. In a formal sense it may be said to be additional to the action grounded on the Statute of Monopolies but in effect, having regard to the restrictions by which the thirty- second section is hedged about, it gives only a much more limited right to the public. In one respect, however, the Act of 1883 goes beyond the Statute of Monopolies. Under the earlier Act it is necessary to show damage ; under the Act of 1883 special damage need not be shown if an injunction only be asked for. In most other respects the thirty- second section serves only to abridge, Ty ■ the 'Til whether under sect. 4 an injunction can now be granted. At the time of the passing of the Statute of Monopolies the Common Law Courts had no power to grant injunctions and by the terms of this section no such relief is provided for. It would, however, seem that the power to grant injunctions in support of a legal right is now appurtenant to a power to enforce the legal right by damages in all the Divisions of the High Court and therefore it will probably be held that, though not expressly provided for, an injunction can be granted in supplement of the remedy by way of damages which the section expressly gives {cc). There being thus a choice of remedies questions will arise as to which is the more advantageous action to pursue. Probably in mo st cases the remedy given by the Statute of Monopolies will pfe’fS^ as ot only are' its costr such as to be much provisions more advantageous to the plaintiff if ^successful but he ha s th e great advantage in^jlj^. nctiojp.Ql to ^com pel the patentee ^ the yahdity of his patent. "The (x) See the judgment of Cotton, L. J., in H. L. Rail. Co. v. 0. N. Rail. Co., 11 Q. B. D. 41. 19 Chap. I.] OBSTRUCTIVE PATENTS. provisions introduced in tire Act of 1883 for the benefit of patentees have had the effect, to a very large extent, of destroying the remedy given to the public so that in point of fact it seldom happens that a threats action can he brought to a successful issue even in cases where the mischief contemplated by the statute has undeniably occurred. The fourth section of the Statute of Monopolies and the Obstructive thirty-second section of the Patents Act, 1883, deal with 98 . the principal grievances arising out of patents. But there is yet another statutable remedy to which attention must here be drawn. The Patents Act of 1883 made provision by its twenty-second section against a particular abuse of patent right defined in the following way : — “ That by reason of the default of the patentee to grant licences on reasonable terms : — “ (a) The patent is not being worked in the United Kingdom; or “ (b) The reasonable requirements of the public with respect to the invention cannot be supplied ; or “ (c) Any person is prevented from working or using to the best advantage an invention of which he is possessed.’’ To prevent this obstructive use of patent right it is pro- vided that in such a case the Board of Trade may settle terms upon which the patentee shall be bound to grant licences. Up to the present time, however, it would seem as if the same fate is in store for this section of the Act of 1883 which has overtaken the fourth section of the Act of 1624, for there is no record of any application made to the Board of Trade under this provision. A reference to it is necessary to the completeness of any account of the remedies available to the public against the abuse of patent right but the subject has at present only a theoretical importance. It results from the foregoing that the existing law upon c2 20 INTRODUCTORY. \_Chap. I. Recapitula- this subject IS not capable of being embodied in one con- sistent statement. Apart from the doubts which must of necessity arise concerning the practical effect of a statute in the very curious position of the fourth section of the Statute of Monopolies it is plain that there is some dis- conformity between the law as laid down in the old Act and as formulated and elaborated in recent decisions and in the Act of 1883. Indeed, when regard is had to the widely different point of view from which the older and more recent authorities have approached the topic, the wonder is that the disconformity should not be greater than it is. But no good could at present result from an attempt to attenuate it. In the present state of the autho- rities it must of necessity be left to the Courts to ascertain the law; until that has been done the utmost assistance that a writer on the subject can hope to render is to draw attention to the forgotten statutes and to offer, in the form of commentary and synopsis, such contributions as it may be in his power to make toward the elucidation of diffi- culties. ( 21 ) CHAPTER II. THE STATUTE OF MONOPOLIES. In the preceding chapter the influences have been traced which gave occasion for the Statute of Monopolies and impressed upon it the particular form in which it made its appearance. Two cases are referred to hj Sir Edward Coke as having been ‘‘ principal motives of the publishing of the King’s Book,” namely, the Case of Monopolies {a) and the Case of Penal Statutes {h ) . The reports of these cases, being now not altogether easy of access, have been reprinted in the Appendix of this book (c) . A comparison of the language of the Book of Bounty with the reported decisions abundantly bears out Sir Edward Coke’s state- ment. The king having once been induced to give a solemn recognition to these formal statements of the common law had placed in the hands of Parliament the most effective of all arguments in favour of the passing the Statute of Monopolies ; most effective, that is to say, with a person of the temper of James I., namely, the argumentum ad hominem. The Statute of Monopolies itself wears this form, and may be summarised to the following effect : — 1. Your Majesty, in 1610, published such and such a declara- tion. 2. Such declaration is truly consonant to the ancient and fundamental laws of this realm. (o) 3 Inst. 182. {b) 3 Inst. 187. (e) See below, App. I. p. 161, Synopsis of the Statute of Mono- pohes. See below, p. 67. 22 THE STATUTE OF MONOPOLIES. [_Chap, II. 3. Your Majesty expressly forbade suitors to presume to move your Majesty in reference to certain matters in the declaration mentioned. 4. Yet, notwithstanding that declaration and prohibition, many such suits have been put forward upon false pretences and successfully. Therefore let it be enacted : The Book of Bounty. See below, p. 157. Thereupon follow a number of enactments conceived, as to the leading provision of all, in the very terms of the King’s Book and, as to the rest, upon the notion of rendering the declaration effectual to suppress the evil at which it was aimed. The King’s Book upon which so much, both in connection with the origin and interpretation of this statute, turns, has by a singular fortu5ie*tiropped, since the days of Sir Edward Coke, almost com- pletely out of sight. The book is not to be found among the collected works of King James, nor is it in the Foedera, the State Papers, Clarendon, the Somers’ Collection or, so far as I have been able to discover, in any of the various collections to which a way can be found by the aid of bibliographies. The cursory references in Coke and the very vague allusion in the preamble of the Statute of Monopolies are all the materials for identification that now remain and only the industry of book collectors has preserved the few copies which still survive. Of these, the British Museum possesses three copies, two bearing date 1610, the other 1619. One of these I am able, by the courteous permission of the Museum authorities, to place before the reader in the form of a photo- graphic facsimile {d), and thus to complete the materials with which a student of the Statute of Monopolies may approach his task. ’ 21 Jac. 1, c. 3. An Act concerning Monopolies and Dis- pensations with Penal Laws and the Forfeiture thereof. Forasmuch as your most excellent majesty in your royal judgment and of your blessed disposition to the weal and quiet of your subjects, did, in the year of our Lord God 1610, {d) See App. I. p. 161 . PREAMBLE. 23 Chap. II.] publish in print to the whole realm and to all posterity, that Preamble, all grants of monopolies and of the benefit of any penal laws, or of power to dispense with the law, or to compound for the forfeiture, are contrary to your majesty’s laws, which your majesty’s declaration is truly consonant and agreeable to the ancient and fundamental laws of this your realm: And whereas your majesty was further graciously pleased expressly to command that no suitor should presume to move your majesty for matters of that nature ; The reference here is to the Book of Bounty ; republished in the Appendix to this volume (e). *^-^4 - • yet nevertheless upon misinformations and untrue pre- tences of public good, many such grants have been unduly obtained and unlawfully put in execution, to the great grievance and inconvenience of your majesty’s subjects, contrary to the laws of this your realm, and contrary to your majesty’s royal and blessed intention so published as aforesaid: For avoiding whereof and preventing of the like in time to come, may it please your most excellent majesty at the humble suit of the lords spiritual and tem- poral and the commons in this present Parliament as- sembled, that it may be declared and enacted, and be it declared and enacted by the authority of this present Par- liament, that The declaration which follows is somewhat intricate and it may be convenient to the reader to have it exhibited in a tabular form. The declaration is threefold; that is to say, that the following things are — (1) “ altogether contrary to the laws of this realm ” ; (2) “ are and shall be utterly void and of none effect ” ; (3) “ in no wise to be put in ure or execution.” (e) See below, p. 157. 24 THE STATUTE OF MONOPOLIES. [_Chap, II. Synopsis of 1st section. See below, p. 236. GQ •2 «« S ® ® 2 alli- ed p ® i 2 O fcOr^ O p2h 25 Chap. II.] SYNOPSIS OF THE STATUTE. It will be observed that the four classes of mischiefs here struck at constitute a double system springing from the twin abuses of monopoly and dispensing power. First. Monopolies; Second. The instruments by which monopolies are created ; Third. Abuses of the dispensing power ; I (Fourth. The administrativ e Acts by which the Govern ment Iff could m i:erfere with the course of patM^ or of the power of dispensation. ustice in aid oF altogether con- l.e., mala in se (/), nowise to be put in The two evils are attacked — 1. Directly; by a declaration that they are trary to the laws of this realm,” i.i utterly void and of none effect and ure or execution. 2. Indirectly ; by declarations striking at the instrumentalities by which they are called into existence and maintained. This alone might fairly be considered sufficient to eradicate the evil but the Legislature, not content to leave the matter there, has supplemented it with three other provisions designed to secure the same end. Thus, section 2 gives exclusive jurisdiction to the Courts of Common Law, section 3 disables all persons to hold or benefit by monopolies and section 4 penalises any attempt to give effec t to them. Not without reason has Sir Edward Coke observed that this Act “ is forcibly and vehemently penned for the suppres- sion of all monopolies ” (g^). all monopolies and It is noteworthy that the word “monopolies” is used in this Definition of statute without synonym or paraphrase and this is the more remark- monopoly, able because amplification for the purpose of closing every con- ceivable door upon evasion or misunderstanding of the Act is a conspicuous feature of the style. This is very manifest in the analysis of this section in tabular form given above {h) and the contrast afforded by the use of this word “monopolies ’Ms therefore most suggestive. No doubt the reason is to be found in the fact, above noted, that this section of the Act is in substance taken from the Book of Bounty and that it was the object of the promoters of the Bill to follow as far as possible the king’s language in the enunciation of the law in order to give as little room as possible for cavilling on the king’s part and to take away from him motive and excuse for refusing the royal assent. Still, the use of the term (/} 3 Inst. 181. {g) 3 Inst. 182. {h) See p. 24. 26 Davenant v. Hurdis. See below, p. 206. Book of Bounty. See pp. 13 and 21 . In Parlia- ment. Ipswich Taylors'* case. See p. 117. Sir Edward Coke’s defi- nition. THE STATUTE OF MONOPOLIES. \_Chap, II. in this manner suggests, or indeed implies, that a perfectly definite meaning was attached to it. Definition of “ Monopolies.'** The authorities upon this point are some of them ancient but not on that account obsolete since they are connected more or less closely with the very text which they are cited to expound. There is first the case of Davenant y. Hurdis {i), tried in the Court of Queen’s Bench in Trinity Term, 1599, where it was held that “ every subject, by the law, has freedom and liberty to put his cloth to be dressed by what clothworker he pleases, and cannot be restrained to certain persons, for that in effect would be a monopoly.” And in the same case, the word “monopoly” is interpreted by its derivation as follows: — “Monopolium dicitur xiro rov p.6vQv act) vuXeu, quod est, cum unus solus aliquod genus mercaturae universum emit, pretium ad suum libitum statuens.” And the poet saith “ Omnia Castor emit, sic fit ut omnia vendat.” The next authority is the Book of Bounty itself, published in 1610, where the word is used clearly with a definite meaning and one, moreover, which is contrasted with patent rights granted for new inventions (j). The word is constantly met with, about this time, in the Pro- ceedings of Parliament, and when it is next met with in the Eeports, it is used with greater freedom and familiarity. Thus in the Ipswich Taylors’ case [h), which was tried in 1613, it was held ‘ ‘ that at the common law no man could be prohibited from work- ing in any lawful trade, for the law abhors idleness and therefore the common law abhors all monopolies which prohibit any from working in any lawful trade and that appears in 2 H. 5, 5 B. : A dyer was bound that he should not use the dyer’s craft for two years [1), and there Hull held that the bond was against the common law, and, by G — d, if the plaintiff was here he should go to prison till he paid a fine to the king.” These authorities are before the statute. Of later date we have, first, the formal definition given by Sir Edward Coke in his third Institute (w) in commentary upon this section. There he says : “A monopoly is an institution or allowance by the king by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of or for the sole buying, selling, making, working, or using of any thing whereby any person or persons, (i) Moore, K. B. 576; 11 Co. {k) 11 Co. Pep. 63. Eep. 86. (^) The Year Book says half a [j) Book of Bounty, p. 13, and year. p. 21 ; see below, pp. 173, 181. (m) 3 Inst. 181. 27 Chap, II.] MONOPOLIES DEFINED. bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade.” Great weight would, in any case, attach to a dictum of this nature by Sir Edward Coke ; but it cannot be uninteresting to remark, as has been previously pointed out that Sir Edward Coke was himself the chairman of the committee of the House of Commons to which the bill was referred which afterwards became the Statute of Monopolies (?^). A long interval of time separates these authorities from the next, Boulton v. which is to be found in the judgment in Boulton v. Bull (o). There Eyre, C. J., says: “Deriving so little assistance from our books, let us resort to the statute itself, 21 Jac. I. c. 3. We shall there find a monopoly defined to be the privilege of the sole buying, selling, making, working, or using any thing within this realm.” all commissions grants licences charters and letters patents .... of or for the sole buying, &c. This list of instruments by which monopolies could be created was, no doubt, intended to be exhaustive and upon a careful examination it appears so to be, subject to the condition that the kind of monopoly here contemplated was only such as had received the sanction of the Crown. In the case of John, the dyer already referred to {p), Sir John Hull seems to have thought that a bond given by one private person to another when put in execu- tion by the obligee might become a monopoly but it probably will not be contended that any such contracts in restraint of trade, however vicious in the eye of the law, are contemplated in this section. Taking only the case then of monopolies originating in the act of G-rants, how the sovereign, that act must be authenticated by the Great Seal or made, now, by virtue of the Patent Act (g-), by the seal of the Patent Ofidce. So strictly was this rule observed in ancient times that the ^ accounts of the king’s butler, Fulham, were disallowed in the time of Edward III. in respect of certain parcels of wines given by the king to certain persons by word of mouth without writing (r). (m) Commons Jl. 26 Feby. 1623. I have lost, and cannot now recover, the reference to the writer who has mentioned this circum- stance. (o) 2 H. Bl. 463, seep. 491. \p) Year Book, 2 H. 5, 5 B. (26); and see 11 Co. Eep. 53. See also preceding page. (g) 46 & 47 Viet. c. 57, s. 12, sub- 8. (2). (r) Close Roll, 4 Edw. 3, m. 19. See also Vin. Ah. Tit. Prserogative of King (C. b.) 1 and (Z. c.) 4. 28 Grants how made. Commissions. THE STATUTE OF MONOPOLIES. \Cha'p, II. We are thus able to enumerate the classes of instruments which satisfy the requirements of the case. They fall under three categories — 1. Close writs; 2. Letters patent ; 3. Charters (s). This, however, is a modern classification and although the references to letters patent and charters suggest this principle of classification it does not appear to have been in the draughtsman’s mind for there is no allusion to the remaining category of close writs. Whether close writs were ever used for the creation of monopolies may be doubted. The description of the Close EoU prefixed to the first volume as printed by the Eecord Commission does not suggest that it contains any instances. The probability is that close writs were not so used for they were directed to indi- viduals not to all into whose hands they should come and were, therefore, quite unsuitable in point of form for creating an obli- gation which should bind the public at large. Be the fact as it may, they are not mentioned in this place, for the first three cate- gories — commission, grant and licence — will cover open writs as well as close. In point of fact, we have cross -divisions here. The first three categories contemplate only the substance of the in- criminated instrument, the last two only its form. all commissions It is probable that commissions were sometimes issued for the purpose of creating monopolies in the king’s name. Sir E. Coke’s definition of a monopoly as “ an institution or allowance by the king by his grant, commission or otherwise,” &c., seems to imply so much. But they were probably never common and certainly are not now easy to discover. More than one commission issued by King James relating to the sale of the queen’s jewels and such like matters is to be found in the Foedera [t). But these, of course, do not in any sense tend to monopoly. The nearest thing to a monopoly created by commission that I have been able to discover is a special commission to seek for treasure trove [u). But in this case, the treasure belonging to the Crown by virtue of the prero- gative, the commission did not tend to abridge any existing trading or industrial rights. It invaded the property of the subject only by conferring powers of entry and search which, however inconsistent with individual liberty, trench upon rights of a different nature from the liberty to work and carry on trade, which the monopolist attacks. (s) 1 Eol. Pat. 1. ... pro venditione gemmarum: \t) See Commissione Special! . . . Ey. 17 Feed, 176. concernente jocalia: Ey. 17 Feed. (w) Ey. 17 Feed. 101. See also 138, and, De Commissione Special! fo. 12. FORMS OF MONOPOLIES. 29 Chap, II.] Probably the reason why monopolists did not much affect com- missions was that the commissioner, acting not in his own name but in the name of the Crown, was held more strictly accountable for his mode of executing his commission and for its pecuniary fruits than was agreeable and for that reason much preferred to take his benefit in the form of a grant than of a commission. Commissions furthering a monopoly by creating a special Court to take cognizance of infringements are extinct. Two such have been published by Dr. S. E. Gardiner (v). But they do not strictly answer to the description in the Statute of Commissions for sole buying, &c. grants The grant of a monopoly needs no illustration. But it may be Grants, pointed out that the word as here used denotes the substance and not merely the form of the transaction : that is to say, the word is not to be understood as meaning a conveyance made or power con- ferred by specialty as against some less solemn procedure ; but, on the contrary, as indicating a transaction by which the donee takes an interest and not merely an authority. It stands thus in due contrast with “ commfssfo7i.” If it were understood in the special sense denoting a sealed deed it would be pointless for it has never been suggested that the Crown could create a monopoly otherwise than by a deed under seal. licences Trading charters have very commonly taken the form of Eoyal Licences, licences to trade the object of the licence being to avoid some law imposing disability upon the trader. Thus, in the case of foreign To carry on trade, it was held, in the E. India Co, v. Sandy s (cc), that all such foreign trade, trade was prohibited to the king’s subjects except so far as it had been “ opened” by Act of Parliament or licensed by the king. So also a Statute of Elizabeth (y) prohibited the use of any To foUow manual occupation except to persons who had undergone appren- handicrafts, ticeship thereto, a disability from which it must have been very important for the early inventors to obtain dispensation since in many towns throughout England there were, and indeed still are, chartered guilds of merchants and craftsmen whose privileges at To answer the date of the Statute of Monopolies were effective and jealously privilege, guarded. On this account royal licences were sought by those who (i;) See 41 Arch. pp. 251 and 266. (y) 5 Eliz. c. 4, s. 24 {x) Skin. 223. 30 Licences. To excuse nuisance. Charters. Patents. THE STATUTE OF MONOPOLIES. \Chajp, II. desired to set up new industries in order to countervail the earlier patents ( 2 ). Another purpose for which the royal licence appears to have been given is that of enabling the licensee to set up a nuisance, in the form of a noxious trade, to the annoyance of his neighbours (a). charters A charter is an open writ (letters patent) and differs from mere letters patents in this respect that it emanates not from the king alone but from the king and Privy Council. It is, indeed, analogous to an Act of Parliament, the difference between the two being that, whereas the Act is passed by the king in Parliament, the charter is passed by the king in Council (&). Monopolies created by charter are too familiar to require illustration by examples. Such mono- polies are always conferred upon the “ chartered companies,” but are not within the purview of this statute because they do not confer an exclusive right to be exercised within “ this kingdom or the dominion of Wales.” letters patent Here again we are on familiar ground. Letters patent, strictly so called — that is to say, open writs emanating from the king alone, not from the king in Council — are peculiarly apt for the creation of monopolies or any other privilege because, being authorized by the sign manual or privy seal merely, they do not necessarily come into discussion^ before the Privy Council and, according to ancient practice, the language in which they are expressed is variable to suit various occasions and can therefore be adapted to the require- ments, whatever they may be, of an individual case. heretofore made or granted, or hereafter to he made or granted to any person or persons bodies politic or corporate whatsoever of or for the sole buying selling making working or using Sir Ed. Coke observes (c) that the word “ sole” in this clause is applied to five several things four of which are special and the last (viz., sole using) is so general as no monopoly can be raised ( 2 ) See Mansell’s Glass Patent, 1 W. P. C. 20, 21. See also the dispute between the Brovm Bread Bakers and the White Bread Bakers, Rememb. 92. (a) Rememb. 94. (i) 2 Inst. 77, 78. (c) 3 Inst. 182. 31 Cha;p, II.] SUBJECT-MATTER OF MONOPOLIES. but shall be within the reach of this statute. This, as bearing upon the construction of the word “using” in this place, is a very im- portant observation, regard being had to its authorship, but it is, perhaps, even more important for the interpretation of the statute as a whole, to observe that these “ five things ” fall into two clearly distinguishable groups. Two of them — that is to say, “buying” and “ selling ” — relate to commerce, or the industry of distribution ; the remaining three relate to manufacture, or the industry of pro- duction. The distinction is not unimportant but its bearing is on general patent law rather than on the special subject of this book, and therefore it must not be pursued here. of any thing Upon this expression Sir E. Coke’s comment is (d), “ As the Sh Edw. words before were general so these words [of any thing] are of large extent. Res enim generalem habet significationem quia tarn corporea quam incorporea, cujuscunque sunt generis, naturae sive speciei, comprehendit.” Apart from the authority of the writer, this observation would not be very convincing for it must surely be easier to deduce from the context the exact shade of meaning which, in any particular instance, attaches to a familiar word than from an abstract definition of its Latin sjmonym. And indeed it may be doubted whether even Sir Ed. Coke’s authority will suffice to fix upon this word in this place the unrestricted significance which he here attributes to it for the difficulty of so doing may well be regarded as insuperable. An instance will make this plain. If the word “thing” covers “incorporeal things of whatever kind, nature, or species,” it must include leases and possession under a lease. Does the provision that “ all letters patent ... for the sole using of anything within this realm are and shall be utterly void and of none effect” make leases from the Crown invalid? The lessee undoubtedly has the sole use of the land and has it by virtue of the patent, yet it needs no argument to show that Crown leases are not within the purview of the Act. So obvious indeed is this, that, notwithstanding the exact and careful drafting of the statute there is no saving of such leases or of other grants made by letters patent which were in similar case. Nor can this omission be attributed to mere inadvertence. In the same session of Parlia- ment an Act was passed for the relief of patentees, tenants and farmers of Crown lands in cases of forfeiture (e). The case put is therefore by no means fanciful or far-fetched. The precarious id) 3 Inst. 182. {e) 21 Ja. 1, c. 26. 32 THE STATUTE OF MONOPOLIES. [_Chap. II. The definition reconsidered. nature of title to land derived by patent from the Crown was one of the grievances which the Parliament was at this very time going about to redress. Is it conceivable that the draughtsman of this statute, who was certainly a most accomplished master of the art of draughtsmanship, could have used words apt to destroy the title of these very tenants of the Crown without adding a saving clause to protect them ? Fortified by such considerations, I shall make bold to examine anew the question. What does “any thing” in this place denote? and with great diffidence to submit that the key to its meaning is given by the instance just alluded to. It is manifest that the grant of a sole user by lease is unobjectionable because such a grant does not create a monopoly. The tenement was mono- polised before — if the word monopoly may be properly used in this sense. The lease only transfers to the lessee the right of sole user which already existed in the hands of the lessor. Now it is the privation of the public of subsisting rights by means of royal grants which the statute is designed to prevent and there- fore the mere passing of undisputed rights from one to another, however effectuated, does not fall within the mischief. This may be collected from the preamble, where the “quiet of your subjects” is assigned as the king’s purpose in publishing his book and, by implication, as the object of the legislature in enacting this law. It cannot, therefore, be intended to bring undisputed titles into question. The same may also be inferred from the scope of the declaration itself now under discussion as illustrated by the general words with which it draws to its conclusion: — “ All other matters or things whatsoever any way tending to the instituting, erecting, strengthening, furthering, or countenancing of the same or any of them.” “ Instituting” is the key-note of this phrase and nothing akin to “ conveying” finds any place there. Finally, the same inference might be drawn from the character of the ancillary provisions enacted in the fourth, fifth, sixth, and some other sections of the Act, if the proof were not sufidciently, or even superabundantly, laboured in what has been already said. Assuming, then, that this point has been made good, it will be convenient to recur to the statute and inquire concerning the pro- vision that “ all . . . letters patents for the sole . . . using of anything within this realm . . . shall be utterly void — How can it be read with the necessary limitations ? Now this may be done without violence to the text by putting a reasonable construction on the meaning of the word “thing.” This word, notwithstanding its vast comprehensiveness, indeed, by reason of it, always takes a DISPENSING POWER. 33 Chap. II.] colour from its surroundings. “Anything to the contrary” was never known to denote a corporeal substance, and instances to the like effect might be multiplied without end. There is therefore no literary impropriety involved in breaking away from the control of Sir Edward Coke’s dictum in this place, and contending that “thing ’’here comprehends only things of such character and so circumstanced as to be liable to become by reason of the incrimi- nated patent subject-matter of some new monopoly. within this realm or the dominion of Wales, “ This realm” is, of course, England, a point which must not be Geographical lost sight of in discussing the remedies given by this statute. It will be considered more at large in a later chapter (/). or of any other monopolies, It may be noted that the use of the preposition “of” in this place, in contrast with “of or for ” in connection with the “ sole buying,” &c., limits the context in the opening phrase to the two words “grants” and “charters.” It would seem that the single word “grants” conveys the whole meaning. It is not apparent what other monopolies can have been in contemplation. Probably the phrase was introduced only in case some new thing of this description should be invented in later times and so to provide against something unknown and unforeseen. or of power liberty or faculty to dispense with any others These words introduce the second subject, namely, dispensations Dispensa- struck at by this declaration. They are not to be considered merely tions. as ancillary to the creation of monopolies, or mischievous for that reason only. It may, on the contrary, be noted that the title of the Act puts dispensations on the same footing as monopolies, reading as follows : “ An Act concerning Monopolies and Dispensa- tions with Penal Laws, and the Forfeiture thereof.” The present phrase therefore deals with the second subject concerning which the statute was made. But although grants of the dispensing power constituted an independent grievance, they were also in fact subservient to the creation of monopolies, as the judgment in the Case of Mono'polies suffices to show {g). The connection between the two things is therefore very intimate, since they are not only closely similar in origin and mischievous effect, but also adapted to serve the one to the institution and maintenance of the other. (/) See p. 126. see also App. IV. p. 263. {g) See below, App. II. p. 230 ; G. D 34 Dispensing' power in the hands of the king, and of a subject. See App. II, pp. 230, 232. THE STATUTE OF MONOPOLIES. \Chajp. II. to dispense with any others This idiom is now entirely obsolete, but it found a place in the earlier editions of Johnson’s Dictionary. The Doctor interprets it as signifying to set free from an obligation, and observes : ‘ ‘ This construction seems ungrammatical.” He cites, by way of illustra- tion, the following phrase from Addison : “I could not dispense with myself from making a voyage to Capua ” (A). or to give licence or toleration to do use or exercise any- • thing against the tenor or purport of any law or statute, In this way the dispensing power was manipulated to confer monopolies. A grant of some portion of the dispensing power was made to a subject, who exploited it for his own profit by selling indulgences. This topic has now a purely antiquarian interest and must not therefore be pursued in this place. But it is worthy of remark that the abuse aimed at in this section was not the now exploded doctrine of a dispensing power in the hands of the king. This the ablest and most independent common lawyers recognized at that date. But not content with claiming the dispensing power as a branch of the prerogative, Elizabeth and the Stuarts claimed the power to divide it up into parcels and bestow it upon their suitors. It was this enormity which the Statute of 1624 was passed to retrench {i). or to give or make any warrant for any such dispensation licence or toleration to be had or made, This was mere machinery by which the delegated dispensing power was exercised. or to agree or compound with any others for any penalty or forfeitures limited by any statute, or of any grant or promise of the benefit profit or commodity of any for- feiture penalty or sum of money that is or shall be due by any statute before judgment thereupon h^d. This relates only to the second purpose of the statute, and was not, so far as I have been able to discover, at any time used to buttress a monopoly. (A) Johnson’s Dictionary, 6th ed. (i) See the case of Penal Statutes, 1785, word “ dispense.” 7 Co. Eep. 36, and below, p. 232. 35 Chap, II.] ARBITRARY AUTHORITY. and all proclamations These words introduce a new class of mischiefs, namely, instru- ments for promoting monopolies or dispensations. They were em- ployed not usually to make title, but to facilitate the maintenance of the monopolists’ claims. An instance of a proclamation issued in corroboration of a patent, is the proclamation made in aid of the Earl of Berkshire’s patent for kilns (A:), which, for convenience of re- ference, is printed in the Appendix (Z). In the case of gold wire how- ever King J ames attempted to create a monopoly by proclamation. The proclamation has been published in extenso by Dr. Gardiner (m). inhibitions An instance of an inhibition is to be found in the present form of a patent grant (??). restraints The practice of issuing injunctions to restrain litigants from pursuing their remedies at common law has only recently ceased, and that by virtue of the Judicature Act, 1873 (o). Even that statute did not touch the prerogative rights of the Crown {p), and it would, therefore, be rash to assume that this clause, avoiding all restraints, is even now obsolete. It is pointed out in the Insti- tutes ( 2 ) that these words comprehend not only the Acts of the Crown but also of the Privy Council, or of any Privy Councillor or other person. The extent to which the magnates of the realm assumed to interfere with the course of justice in furtherance of their own interests and those of their clients in the age of mono- polies may be gathered from the articles exhibited against Cardinal Wolsey, where amongst other things the following were laid to his charge : — That he had ‘ ‘ examined divers and many matters in the Chancery after judgment thereof given at the common law . . . and made some persons restore again to the other party condemned that that they had in execution by virtue of the judgment at the common law (r). . . . Also when matters have been near at judgment by process at your common law, the same Lord Cardinal hath not only given and sent injunctions to the parties, but also sent for your (s) judges, and expressly by thi’eats commanding them to defer the {k) Ry. 20 Peed. 191. (l) See below, App, IV. p. 262. (m) See 41 Arch. 247 and 260. (n) See below, p. 127. ( 0 ) 36 & 37 Viet. c. 66, s. 24, sub-s. 5. (p) Att.-Gen. v. Constable, 4 Ex. D. 174. G) 3 Inst. 182. (r) Art. 20. (s) Z.e., your Majesty’s judges. Proclamation. See App. IV. p. 262. Restraints by subjects. 36 "Warrants of assistance. See App. IV. p. 264. Nature of the tort. THE STATUTE OF MONOPOLIES. \_Clia]), II. judgment, to the evident subversion of your laws, if the judges would so have ceased (^). . . . Also he hath divers times given inj unctions to your servants that have been for causes before him in the Star Chamber, that they, nor other for them, should make labour by any manner way, directly or indirectly, to your grace to obtain your grace’s favour or pardon” (it). Moreover, in Articles 41 and 42, specific instances are given of the Cardinal’s having proceeded in one case by writ of subpoena, and in the other by injunction, to oust the lawful possessors of tenements from their property without even the form of a trial. His proceedings seem to have been exorbitant, but not highly original. It is clear from contemporary documents that the Lords of the Council assumed large dispensing powers quite naturally at this date. Thus, the proclamations issued by James I. to encourage the fisheries by enforcing the prohibition of killing meat in Lent contain the fol- lowing recital: — “It apjDeareth that the chiefest cause of these disorders hath grown from the licences that have been granted to butchers to kill and utter flesh contrary to law, and that it is plain that no mayor or other person of what degree or quality soever can grant any licence in this kind, and that the lords and others of our Privy Council do by our direction forbear to grant any such licence or to give way thereunto ” (cc). warrants of assistance These are probably perfectly obsolete now. Illustrations of some of the forms in which these instruments were prepared are given in the Appendix [y). and all other matters and things whatsoever any way tending to the instituting erecting strengthening fur- thering or countenancing of the same or any of them, These words were probably added ex abundanti cauteld rather than with respect to any specific mischief. At this place Sir Edward Coke observes ( 2 ), “This Act herein and in the residue thereof is forcibly and vehemently penned for the suppression of all monopolies, for monopolies in times past were ever without law but never without friends.” are altogether contrary to the laws of this realm, Therefore it is not malum prohibitum but malum in se (a). {t) Art. 26. also pp, 447, 528 and 661. (w) Art. 37. See 4 Inst. 91 et {y) See below, p. 264. seq. \z) 3 Inst. 182. {x) Ky. 17 Feed. 131, 132. See {a) 3 Inst. 181. Chap, II.] TRIAL BY THE COMMON LAW. 3 and in no wise to be put in ure or execution This clause seems to go beyond the mere declaration of invalidity, and to prohibit the exercise of invalid powers. This provision of the statute has been entirely overlooked in those decisions which have asserted the right of a patentee to put even an invalid grant in ure and execution if he can do so hond fide. See the case of Wre7i V. Weild, and Halsey v. Brotherhood (&). 2. And be it further declared and enacted by the authority Second aforesaid, that all monopolies and all such commissions grants licences charters letters patents proclamations inhibitions restraints warrants of assistance and all other matters and things tending as aforesaid, and the force and validity of them and every of them ought to be, and shall be for ever hereafter examined heard tried and determined by and according to the common laws of this realm and not otherwise. Sir Edward Coke, commenting upon this passage, says (c) : — Triable by “This Act . . .hath provided by this clause that they” {i.e., common law Monopolies, &c.) “ shall be examined, heard, tried and determined in the Courts of the Common Law according to the common law, and not at the Council Table, Star Chamber, Chancery, Exchequer Chamber, or any other Court of like nature,” &c. This commen- tary has now only an antiquarian interest so far as all the Courts enumerated (except the Court of Chancery) are concerned, which See p. 56. last is considered below. But probably Sir Edward Coke, whose style is seldom fastidiously precise, intended to be understood as referring in this place to the Court of Chancery only when exercising its equitable jurisdiction. The Court of Chancery always was a Court of Common Law, as well as a Court of Equity ((i). Indeed, its common law jurisdic- tion is its ordinary jurisdiction, and its equitable jurisdiction is extraordinary (e). But there is nothing in the language of this section to exclude the ordinary jurisdiction of the Court of Chancery, and when the circumstances of the case are carefully considered, it seems quite certain that this jurisdiction was intentionally preserved. Eor, in the first place, it was a part of the common law jurisdiction of the {b) See above, pp. 12 — 16. Jud. Act, 1873, s. 16, sub-s. (c) 3 Inst. 183. (1) ; 4 Inst. 79. (e) See 4 Inst. 79. 38 THE STATUTE OF MONOPOLIES. \Cha]p, II. Scire facias. Jurisdiction of the Pala- tine Court. Lord Chancellor to hold plea of sci. fa. for repeal of the king’s letters patents (e), and this jurisdiction is, in the nature of it, exclusively his, since if the patent be found invalid, he alone has power to cancel it — a function so high in point of jurisdiction in the estimation of our forefathers that the greatest officer of the Court took from it his title of Cancellarius (/). Accordingly, a sci. fa. to revoke a patent was always made re- turnable in Chancery and this was the established practice at the time of the passing of this Act. It is quite inconceivable that the Legislature intended by this section to abolish the practice and introduce some new procedure for trying the validity of a patent grant, for which no provision of any sort was made either at this time or since. The conclusion, therefore, seems irresistible that this passage in the Institutes must be read as referring only to the Chancery Court of Equity and not at all to its proceedings in sci. fa. for the repeal of a patent. And it may here be noted, in order to make an end of this topic, that this exclusive jurisdiction of the Court of Chancery in a case of sci. fa. to repeal a patent has been continued in the Chancery Division of the High Court by the Judicature Act of 1873, which provides that there shall be assigned to the Chancery Division, inter alia, all causes or matters for the cancellation of deeds or other written instruments {g). It is, perhaps, worthy of consideration whether the existing Palatine Court of Lancaster has, under this section, jurisdiction to try a patent action. It may, no doubt, be said that the law ad- ministered by the Vice-Chancellor is the common law applicable to patents and therefore that his jurisdiction satisfies this section. That is probably true. But, prior to 1873, it is clear that, being common law matters, patents were within the jurisdiction of the Court of Common Pleas at Lancaster. That jurisdiction was, by the Judicature Act, 1873, s. 16, sub-s. 9, transferred to the High Court, and with it, apparently, the cognizance of questions of patent right arising in the County Palatine. (e) Jud. Act, 1873, s. 16, sub-s. (1) ; 4 Inst. 79. (/) 4 Inst. 88. \g) Jud. Act, 1873, s. 34, sub-s. (3). The reader who may desire to ascertain the state of the law on this point before the Judicature Act, will find it very fully stated in Hindmarch on the Law of Patents, pp. 381 et seq. Chap. II.] MONOPOLISTS DISABLED. 39 3. And be it further enacted by the authority aforesaid, that all person and persons bodies politic and corporate whatsoever, which now are or hereafter shall be, shall stand and be disabled and uncapable to have use exer- cise or put in ure any monopoly or any such commis- sion grant licence charters letters patents proclamation inhibition restraint warrant of assistance or other matter or thing tending as aforesaid, or any liberty power or faculty grounded or pretended to be grounded upon them or any of them. This again cuts at the root of the modern doctrine of privilege attaching to invalid claims of patent right put forward hond fide [li). Eor it is manifest that no person can plead privilege to set up a claim which an Act of Parliament disables him from putting forward. It would seem that this section might usefully be pleaded, therefore, in a case within the exception of the thirty-second section of the Act of 1883 and in which the absence of special damage shuts out the fourth section of the Statute of Monopolies. 4. And be it further enacted by the authority aforesaid, that if any person or persons at any time after the end of forty days next after the end of this present session of Parliament, shall be The session terminated on the 2nd Nov., 1624. It is not now necessary to plead the fulfilment of this condition (^■). hindered grieved disturbed or disquieted. These words are manifestly chosen with the obj ect of making the remedy given by this section very comprehensive, and they accord- ingly are words of large significance. It may be reasonably as- sumed that few, if any, abuses of patent right, or pretended patent nght, will be found to es^pe through their^eshes. But they are, nevertheless, words of definite meaning andTherefore it is a matter of no small importance to ascertain how that meaning is illustrated by use and exposition. And as this is eminently one of those cases in which “ Contem'poranea expositio est optima fi the authorities submitte d in this connection will be as far as possible coeval with the statute. {h) See Wren v. JVeild, Halsey v. (i) Bex v. Kilderhy^ 1 Wms. Brotherhood, above, pp. 12 et seq. Saund. 309b, n. 5, Third section. Disability. Fourth section. 40 THE STATUTE OF MONOPOLIES. \_Cliap. II. Statute of Jeofails. Hindrance. Instances. hindered The most accurate use of this word that I have been able to , discover occurs in one of the Statutes of Jeofails (^'), where the I hindrance of the plaintiff is contrasted with the vexation of the \ defendant. The preamble of that statute having set out the fact that the parties to actions and suits have been “ greatly delayed and hinder ed^^ by reason of crafty, subtle, and negligent pleadings,! proceeds that these things tend “to the great hurt delay and hind-\ ranee of the said plaintiffs or demandants or to the vexation of the defendants or tenants.” The idea which here is conspicuous, that_ a “hindrance ” is an obstacle which the hindered party must needs surmount in the pursuit of some lawful purpose, is also present in the following examples of the use of the word. ' In 1636, the tobacco patentees complain to Charles I. that they are “ hindered ” by the competition of unlicensed persons (^). In 1640, divers of the king’s “loving subjects” complain that they are “hindered” by the unlawful exercise of the preroga- tive (m), for giving a preference over other creditors to persons pretending to be debtors to the Crown. The word receives a somewhat wider meaning in the following instances : — In the Act against discontinuances of writs of error (n), the abating of appeals due to the absence of the Lord Chancellor and Lord Treasurer from Court on the appointed day of hearing is described as causing the hindrance of justice. In a statute of the year 1623 (o), the taking of usury is said to occasion “ hindrance ” to the Commonwealth. In a patent of the year 1618 (p), the word “ hindrance” is used in a very vague sense to describe misconstructions of the grant tending to diminish the privilege granted. Hindrance defined. These instances establish, it is submitted, the point that the word as here used is used in precisely the same sense in which it would be used at the present day and covers a class of interferences with the rights of the individual sufficiently distinct but at the same time of large extent and in point of fact of a nature to include alm ost al l attempts on the part of patentees to gi ve effect tomonopoHes by imposing restraints upon the action of others. {k) 32 Hen. 8, c. 30. (o) 21 Ja. 1, c. 17. (l) Hy. 20 Feed. 116. (p) Rmnsey Wildgoff^s Patent, (m) Ry. 20 Feed. 401. Ry. 17 Feed. 122. (n) 31 Eliz. c. 1, 8. 1. PERSONS GRIEVED. 41 Chap. II.] grieved This word has been frequently made the subject of judicial consideration although not in connection with this enactment. There is, however, one very notable instance of its use to which preeminent value must be assigned by reason alike of the definite significance which is to be attributed to the word, the high authority by which it is used and the deliberate choice which stamps it for use in the given connection. This instance occurs in the definition of the functions of Parliament, which assembles according to a well- known formula “ for the redress of grievances.” This formula has now been consecrated by common use and was undoubtedly already in common use at the date of the Statute of Monopolies. Its solemn employment in a statute of the year 1640, passed to regulate the sittings of Parliament, has stamped it once for all as being the suffi- cient and authentic expression of the purposes for which the Parlia- ment is convoked. As the statute has long been repealed, it may be convenient here to quote the phrase in which this clause occurs (2). “ Whereas by the laws and statutes of this realm the Parliament ought to be holden at least once every year for the redress of grievances,” &c. Another instance of the use of this word in the same sense, which is peculiarly apposite to the present discussion, occurs in the Lords’ Remonstrance presented to Charles I. in the year 1640 (r). Taking particular examples, the following “ grievances” may be instanced : — Billeting of soldiers on inhabitants (s). Extortion by the sheriff ip). False affidavit leading to a writ (w). The meaning of the word “ aggrieved” has been very much dis- cussed in the Courts, and principally in connection with the three subjects of Bankruptcy (v). Licensing (w), and Trade Marks. In all these cases the discussion has arisen about the meaning of the word, or of the phrase “ aggrieved person ” in an Act of Parliament, but it cannot be said that any conclusion has been reached which is of universal application. In one or two cases, however, the force of the words has been considered with a view to accuracy of definition and from this point of view especial importance must be attributed to the dictum of James, L. J., in the case of Ex jparte Side- botham{x). He there says, “But the words, ‘person aggrieved’ {q) 16 Cha. 1, c. 1, s. 1. (r) Ry. 20 Feed. 436. (s) Petition of Right, Chap. VI. (0 29 Eliz. c. 4. (u) 21 Ja. 1, c. 8. (v) 32 & 33 Viet. c. 71, s. 71. (w) 35 & 36 Viet. c. 94, s. 62. (z) 14 Ch. D. 4^6. Grievanee. See below, p. 42. 16 Chas. 1, e. 1. Instanees. Ex parte Sidebotham. 42 “ Grievance ” instances. PowelVs Trade Mark. Beg. V. JJ. of Andover. Ex parte Billon. In re Beed. Bowen (7o., Ex parte Official Beceiver. Grievance defined. Seepp. 41, 84. THE STATUTE OF MONOPOLIES. \_CliaiE II. do not really mean a man Tvho is disappointed of a benefit which, he might have received if some other order had been made. A ‘ person aggrieved ’ must be a man w ho ha s sufiered a legal grievance^ a man*Tgainst whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to some- thing.” Similarly, Lord Watson, in the matter of PoiuelVs Trade Afar/? (y), referring to the use of the expression in sect. 90 of the Patents, Designs and Trade Marks Act, said, “Any trader is in the sense of the statute aggrieved whenever the registration of a particular trade mark operates in restraint of what otherwise would have been his leg al righ ts ” The sanih result hasfin effect been reached in those decisions by which the meaning of the phrase has been restricted. Thus, in The Queen v. JJ. of Andover (z), it was held that the owner of licensed premises was not an aggrieved person in respect of the indorsement of a conviction upon the licence held by the occppier, because the owner’s interest was not directly affected by the deci- sion in question. Again, in Ex parte Dillon (a), it was held, to substantially the same effect, that an “ aggrieved person” must be a person aggrieved by the particular order complained of. Simi- larly, in In re Eeed, Bowen & Co., Ex parte The Official Receiver (&), in which the majority of the Court of Appeal held that the official receiver was an “aggrieved person” because a decision had been given against him touching a matter in respect of which he was entitled to put a case before the Court, Fry, L.J., dissented, upon the ground that the official receiver had no interest in the decision, but was functus officio as soon as he had performed the duty of placing the Court in possession of his case and argument. Upon a comparison of these various decisions, one point comes out with great clearness, jt i s plain that the man who has an interest which is immediately and adversely affected is an aggrieved ]^rson. This position has never been doubted. It may perhaps be contended, on the authority of the majority of the Court in Ex parte Sidebutham, that it is not necessary that the aggrieved person should be beneficially interested. If he represents an interest, it is sufficient (c). There must be an interest attacked. (f/) 11 R. P. C., p. 8. (z) 16 Q. B. D. 711. {a) 11 Ch. D. 56. b) 19 Q. B. D. 174. c) 14 Ch. D, 465. Seethe obser- vations of the M. R. upon this decision in Ex parte The Official Beceiver, 19 Q. B. D. 178. The foIlo-wing cases may also be men- tioned in this connection ; — In re Bayne, Ex parte Castle Mail Packets Co., 18 Q. B. D. 154, Bankruptcy Act; Balph's Trade Mark, 25 Ch. D. 194 ; Garrett v. JJ. of Marylebone, PERSONS DISTURBED. 43 Chap. II.] and not merely an interest prejudiced by an attack upon other interests with which it may be more or less loosely bound up. disturbed The words “ hindered” and “ grieved,” which precede this word Disturbance in the clause, point probably to acts of oppression in which there is at least apparently an interference with the legal rights of the aggrieved person. This word “ disturbed ” would seem to have an ampler meaning, and to include cases in which the amenities of existencej^xather than legal rights of the aggrieved individual, are the o bject of attack. And it may fairly be conjectured that the power of search, with which it was the common practice to arm the patentees of the Tudors and the Stuarts, was the principal source of the annoyance which this word was intended to convey. That the word “disturb” does not connote any invasion of a right, is shown by its use in an Act concerning forcible entries, passed in the year 1588 {d), in which, after reciting that certain of the of trespassers, queen’s good and loving subjects, who have acquired a good title by possession to tenements, have had “entries” {i.e., unlawful entries) “made upon their possessions,” and have been proceeded against by indictment of forcible entry, ‘ ‘ for disturbing of such entrors.” The Act then proceeds to remedy this mischief by a declaration that restitution given upon an allegation of forcible entry in such circumstances is not according to law, and to make suitable enactments to prevent its occurrence in future. Taking the word disturbance in this wide sense, we may find a particular reason for its use here in the power of search already alluded to. The power was given in a veiy formidable form, as may be seen from any contemporary patent for a monopoly (e). That it was often used to the great disturbance and inconvenience of the party upon whom the visitation was made can be well understood. Yet although so seriously inconvenient, a search being made under ^lour of aT royal grant and warrant" was 'no foW’^andTEere^ no^ grievance. The wbrcf “ (fisturbance7’^"lh^efore,"wlii ^ 3oes no*^ Disturbance connote a T ort or a damage even in the shape of hindrance y^s defined, necessary to cover tEs case and cases like it. disquieted This word bears a meaning very like to that of disturbance but Disquieted 12 Q. B. D. 620, Licensing Acts ; In re Trade Mark of the Soc. Anon., (1894) 1 Ch. 61 ; (1894) 2 Ch. 26 ; In re Lamb, (1894) 2 Q. B. 805, Bankruptcy Act. {d) 31 Eliz. c. 11. {e) See, for example, Gilbert's Latent, App. IV., p. 249. 44 by theological discussion. “ Quiet,” by limitation of Crown suits. Disquieted by common informers, by limitation of actions. The sheriiff’s quietus. Petition of Right. THE STATUTE OF MONOPOLIES. [_Chap, II. makes allusion, perhaps, in particular to disturbance by process of law. This is, of course, a result of use and wont, not of definition, and indeed it would not be difiicult to produce contemporary ex- amples of its employment in a sense which has no reference to litigious proceedings. Thus, for example, in the Archbishop of Canterbury’s report to the king for the year 1637, the people of Bristol are said to be “disquieted” by theological discus- sion (/); and no doubt many such examples could be found with a little diligence. Nevertheless, its use, and especially in legal documents, is often pointed at disturbance by litigation. Thus, in a statute made in this same Parliament for limiting Crown suits, the object of the limitation is stated to be the “general quiet of the subject ” (g^). Similarly, in a statute of the year 1589 for suppressing the evU of blackmailing actions by com- mon informers (A), the mischief is described thus: “Divers of the Queen’s Majesty’s subjects be daily unjustly vexed and dis- quieted by divers common informers upon penal statutes.” Similarly, the original Statute of Limitations (?') is declared to be passed for the “ quieting of men’s estates.” By another statute of this same Parliament (A;), the sheriff’s “quietus est” is to be a discharge from all legal liability for acts done by him in the dis- charge of his office. The word occurs twice in the Petition of Eight (Z). In the first place — Clause II. — the context is “many of them” (Le., your people), “upon their refusal so to do” (t.e., to contribute to a forced loan), “have had an oath administered to them not warrantable by the laws or statutes of this realm, and have been constrained to become bound to make appearance and give attendance before your Privy Council and in other places, and others of them have been therefore imprisoned, confined, and sundry other ways molested and disquieted . In the second place — Clause X., which contains the prayer — a demand is made, inter alia^ ‘ ‘ that none be called to make answer or take such oath or to give attendance or be confined or otherwise molested or disquieted concerning the same or for refusal thereof.” (/) Ey. 20 Feed. 198. [k) 21 Ja. 1, c. 5. (ff) 21 Ja. 1, c. 2. (1) 3 Car. 1, c. 1 (precedes c. 1 (A) 31 Eliz. c. 5. inEuffhead). (i) 21 Ja. 1, c. 16. Chap. II.] SEIZURE OF GOODS. 45 or his or their goods or chattels any way seized attached dis- trained taken carried away or detained by occasion or pretext of any monopoly, or of any such commission grant licence power liberty faculty letters patents proclamation inhibition restraint warrant of assistance or other matter or thing tending as aforesaid, Thesewords merit attention. The old patents purported to give the Seizure of patentee, as has been already stated, power to seize infringing goods goods, and it was, no doubt, the exercise of this power which was par- ticularly contemplated in these words, as also in the use of the general word “ disturbed ” — and possibly the word “ disquieted ” — which precedes them. The power to seize is no longer included in a patent grant but, this notwithstanding, it is at the present day common form in pleading to ask for the delivery up of infringing goods as a part of the relief sought and the Courts do not shrink from granting this relief in certain cases (m). This is , howe ver, a comparatively recent innovation in practice, and it is not easy to discover on what prin^le j^has Jbeen sanctioned. That such an innovation shouI^Tnot be admitted^SE^'f good 'cause may surely be assumed when it is borne in mind that it is an ancient maxim of the common law that no forfeiture of goods can grow by letters No forfeiture patent (n), and that this maxim has been acted upon consistently grow by from the date of Magna Charta (o) down to within the last thirty years. The his ^tory o f -th e introduction a nd growth of the new practice is interest iuo- and may be told in a few words. First, then, to get a date from whicn to start, it may be presumed Modem doc- that this practice had not been thought of prior to the year 1846* trine of In that year Mr. Hindmarch’s book on Patent Law was published, ^ and in that book, although the remedies given to a patentee are discussed very fully, there is no hint that the Court could in any circumstances order the defendant’s goods to be given up to the plaintiff (p). The case in Mr. Hindmarch’s book nearest to those Hindmarch. in which delivery up of infringing goods has been ordered in recent years is that of Crossley v. Beverley [q). In that case the patent Crossley v. was near its term and the infringer had manufactured a large stock Beverley. (m) United Telephone Co. v. WaU her and another, 4 R. P. C. 64 ; see also p. 67 ; Lancashire Expl. Go., Limited v. Roburite Expl. Co., Li- mited, 12 R. P. C. 483. [n] Waltham v. Austin, cited in the City of London's case, 8 Co. Rep. 125a, 127b ; 2 Inst. 47 ; Horne v. Ivy, 1 Sid. 44 1 ; 1 Vent. 47 ; Hastings' latent, Noy, 183. See below, p. 220. (o) Mag. Ca., ch. 29; and see Coke’s commentary hereupon, 2 Inst. 47. {p) Hindmarch, 251 — 366. (j) 1 Russ. & Myl. 166. 46 Doctrine of forfeiture. Norman. Needham v. Oxley. THE STATUTE OF MONOPOLIES. \_Chap. II. of infringing goods and lield them in readiness to he put upon the market immediately after the expiration of the patent grant. Yet, even in this case, there was no question of delivering up or even of destroying the goods, and the order made was only a perpetual injunction to restrain the defendant from selling or disposing of any of the goods piratically made during the continuance of the patent. This order was made in the year 1829, but being cited by Mr. Hindmarch in 1846, maybe taken to indicate the utmost length to which the Court would go at that date in the way of interfering with an infringer’s rights of property in the infringing goods. The earliest authority that I have been able to find for the new doctrine is contained in Norman’s New Law of Patents, published in 1853. The author of that little book says (s), “The articles manu- factured and things used in the manufacture may be ordered to be given up and destroyed.” For this statement he cites three autho- rities, namely, Crossley v. Beverley (t), already noticed, Crossley v. Derby Gas Co. (m), and MacEae v. Holdsworth{x). The first of these cases is, however, no authority for the proposition laid down, but, as has been already shown, is an authority against it in both its members. The second, Crossley v. Derby Gas Co., is entirely off the point, and its citation is apparently due to a mere inadvertence. The third, MacRae v. Holdsworth (a?), is a case under the Copyright of Designs Act of 1842 (y), and is therefore not at all in point. For there is no question that a forfeiture may accrue by Act of Parliament, and consequently the rules of law respecting the for- feiture of goods produced in contravention of a statute are wholly different from the rules applicable to a case of infringement only of a patent grant. Moreover, MacRae v. Holdsworth is not even an authority for the power to order the destruction of articles which infringe upon a statute, for the order was taken by consent, and as the result of a compromise between the parties. Mr. Norman appears to say, that both delivery up and destruction may be ordered ; but possibly he should be understood to mean only that the infringing articles may be ordered to be given up for the purpose o/ being destroyed. Yet even so, it seems to be clear that he was mistaken in supposing this to be at that time the law in a case of patent grant. The next case in which the question arose appears to be that of Needham v. Oxley (z), tried in the year 1863 ; but this seems to have been argued upon the analogy of The Emperor of Austria v. (s) At p. 189. note above. [t) 1 Russ. & Myl, 166. {x) 2 De G-. & Sm. 496. {u) 3 Myl. & Cr. 428. But see (y) 5 & 6 Viet. c. 100. 1 Russ. & Myl. 166, and Erratum, (z) 8 L. T. N. S. 604, SEIZURE OF GOODS. 47 jCha^p, II.] Kossuth (a), and it will be convenient therefore to notice that case State of the in passing. In that case the plaintiff sought to restrain the 1863. defendant from producing notes purporting to be currency, and designed to circulate in Hungary, and to be used in promoting a revolution in that country. The rights in question were therefore as far removed as possible from patent right, and although in the end it was decided that the notes must be destroyed and the plates defaced from which they had been printed, the argument there does not throw any light whatever on the point now under dis- cussion. Coming back, then, to the case of Needham v. Oxley {b), it is to be observed that here the relief asked for was that the infringing articles — the issue of infringement having been found by a jury in favour of the applicant — “ might be delivered up to he destroyed, or that the plaintiff might he allowed to purchase them for the value of the materials.’’^ This, therefore, represents at that date (1863) the high-water mark of professional opinion as to how far the Court could interfere with the property of a peccant defendant in his own goods, and the reference in this case to the far-fetched analogy of the Emperor of Austria v. Kossuth — the only authority cited — fully bears out the result of the foregoing investigation into the then existing state of the law upon this point. The Vice- Chancellor (Wood) did not grant the relief moved for, but adopted the less stringent course of directing that the plaintiff should be at liberty to place a mark on the infringing goods. The reason for his so deciding would seem to have been that the articles in ques- tion might be used so as not to infringe. Whatever the reason, the fact is that at this date the Court shrank from ordering the destruction of goods and a successful patentee did not even venture to propose the delivery of them up to himself except upon terms of purchase. The earliest report in which which I have been able to find an order for destruction is Betts v. Be Vitre (c), decided by Wood, V.-C., Betts v. in 1864. In that case there seems to have been some confusion in T itre. the drawing up of the order. The hearing was concluded on the 3rd Dec., 1864, and the Vice-Chancellor then intimated that he would follow the precedent of the order made in Hill v. Evans. But there would seem to have existed some misapprehension as to the terms in which Hill v. Evans had been decided, for the case was men- tioned in Court upon minutes on the 25th January following, and the order was then settled by the judge who, inter alia, directed an inquiry as to whether the defendants or any of them had in their {a) 2 Giff. 628 ; and on appeal, 3 De G. F. & J. 217. {b) 8 L. T. N. S. 604. {c) 34 L. J. Oh. 291. 48 The first instance of forfeiture by patent. Tanqye v. Stott. Delivery up of goods. THE STATUTE OF MONOPOLIES. \_Chap, II. ^ possession or power any and what articles manufactured in violation of the plaintiff’s patent and ordered that all articles which should he certified to have been so manufactured and to be in the possession of the defendants or any of them should he destroyed in the presence of the persons named, being the managers and solicitors of the plaintiffs. For this part of the order there does not appear to have been any authority in Hill v. Evans or anywhere else. The report of Hill v. Evans [d) in De Gex, Fisher and Jones, is quite explicit on the point. The Lord Chancellor there says : — “ I grant the injunction and an account as prayed.” He makes no reference to any forfeiture of goods. It would seem then that this enormous jurisdiction to order the forfeiture of goods contrary to express and weighty authority and in defiance of the clearest constitutional doctrine can be traced no higher in its origin than to an order made, so far as appears, with- out argument, without consideration of the authorities or of the legal principles involved and upon an application to settle the terms of an order upon which no discussion of the substance was even likely to arise. The next case carries the doctrine a great step farther. In Tangye v. Stott (e), a prayer was introduced into the bill for “ delivery up of the pulleys made in infringement of the patent,” and the Vice-Chancellor (Wood) made the order “ as prayed.” The destruction of the goods ordered in Eetfs v. Ee Vitre might be regarded, perhaps, as a mandatory injunction and if it infringed no constitutional right of the defendant party it might, perhaps, be defended on that ground. But this order, divesting the de- fendant of his property and vesting it in the plaintiff, was not even sustainable upon any analogy to a rule of law and can only be supposed to have originated in the false analogy to pirated copies of a copyright work. This analogy seems, as has been above pointed out (/), to have misled Mr. Norman. It cannot, indeed, be said that this actually happened in Tangye v. Stotty for it does not appear from the reports that any argument was directed to the point. So little does it seem to have been brought to the minds of the persons present in the Court that a great departure was being taken, that of the two reporters who have placed the proceedings on record, one has whoUy omitted to mention the order for delivery up and reports the decision concisely as a decree for a perpetual injunction and costs (y). {d) 4 De G. F. & J. 309. {e) 14W.R. 386. (/) See above, p. 46. (y) See W.N. (1866), p. 68. SEIZURE OF GOODS. 49 Chap, II.] The point next arises in Plimpton v. Malcolmson in 18Yo [h), and Plimptons. here it would seem that the power to order the destruction of infring- ing goods was for the second time asserted. But whether it was exer- cised upon the authority of Betts v. Be Vitre does not at all appear. It does not indeed seem that any argument was directed to this point, or even that the point itself came at all under the notice of the Court in the course of the hearing. It is worth while to exa- mine the reports of the case from this point of view. To take them in order: — The Law Reports give the reasoned judgment, but as the order of the Court was not to be drawn up until after a subse- quent mention of the case, its provisions are not given in this report. The “Law Journal” and “Law Times” both give the effect of the order, but neither of them alludes to this direction about the delivery up and destruction of the infringing articles. To find this the inquirer must turn to “ Seton on Judgments,” where the text of the order, as ultimately drawn up, is published in full. There appears in addition to clauses giving effect to the reported judgment a further clause in the following terms: — “ And let the defendant forthwith upon oath deliver up to the plaintiff, or break up or otherwise render unfit for use, all roller skates or parts of roller skates so manufactured or let for hire by or by the order of or for the use of the defendant in infringement of the said letters patent as aforesaid, which are in the possession, custody or power of the defendant or his servants or agents.” The case was heard in January, 1876, and the order was drawn up in the following March ; so that it is at least conceivable that the Registrar, rather than the Master of the Rolls, should be credited with having added this weapon to the effective armoury of the Court of Chancery. However the practice originated, it soon became established. Frearson v. In Frearson v. Loe (1878) (^) the same judge (Jessel, M. R.) made and • • SccdzscJic an order in similar terms, and in 1883 Pearson, J., made a similar y order in Badische Anilin v. Levinstein {U) expressly upon the autho- Levinstein. rity of Plimpton v. Malcolmson. It should be observed, however, that so far as we have gone the Courts, save in the case of Tangye v. Stott, which appears to have been more or less overlooked in the later cases, have only assumed to order the destruction of infringing articles. The defendant had the option of delivering up or destroying his incriminated goods, so that there is no definitely recognized doctrine so far that the pro- (A) 3 Ch. D. 531 ; 45 L. J. Ch. 605 ; 34 L. T. N. S. 340 ; Seton on Judgments, 6th ed., p. 566. G. (i) 9 Ch. D. 67. (A) 24 Ch. D. 176. 50 THE STATUTE OF MONOPOLIES. II. perty in them may pass to the patentee. This point is clearly made in the last-cited judgment, Badische Anilin v. Levinstein, But it ■would seem that already, at the date of Frearson v. Loe (1878), patentees were enlarging their pretensions although they Vavasseury. had not yet received judicial recognition. Thus in Vavasseur y. Krujpp. Krupp (1878) [1) counsel for the patentee contended that there was no property in shells made in infringement of a patent, for the Court would order them to be destroyed. This doctrine was, how- ever, emphatically repudiated by the Court of Appeal. In giving judgment, the present Master of the Bolls said (m) : “ It is argued that if he,” «'.e., the Mikado, “were a private individual, then, although he has purchased these shells and paid for them, yet inasmuch as there has been an infringement of the patent the pro- perty is not in him, because the Court may order the shells to be destroj’-ed. Is that argument good or not? ^To my mind it is utterly fallacious. The patent law has nothing to do with the pro- perty.” And Cotton, L. J., at p. 360, says: “I think one argu- ment was very much this, that if the foreign sovereign had been a private individual he could have had no property in these goods, because they were violations of the plaintiff’s patent Now there, I venture to say, is a fallacy. The property in articles which are made in violation of a patent is, notwithstanding the privi- lege of the patentee, in the infringer if he would otherwise have the property in them. The Court, in a suit to restrain the infringe- ment of a patent, does not proceed on the footing that the defen- dant proved to have infringed has no property in the articles ; but assuming the property to be in him, it prevents the use of those articles either by removing that which constitutes the infringe- ment or by ordering, if necessary, a destruction of the articles, so as to prevent them from being used in derogation of the plaintiff’s rights, and does this as the most effectual mode of protecting the plaintiff’s rights— not on the footing that there is no property in the defendants.” Thus, in 1878, Sir Edward Coke’s maxim, that no forfeiture can accrue by letters patent, was in substance re- stated by the Court of Appeal, though re-cast in respect of form and perhaps somewhat qualified in point of substance. From this point, however, the development of the doctrine is rapid enough. Indeed, development is perhaps an inapt word to describe what happened, for when next it comes to light in the Washhurn and reports it is abeady fully developed. The case was Washburn and Moeny. Moen v. Patterson {n)y tried before Bacon, Y.-C., in 1884. There Patterson. { 1 } 9 Ch. D. 364. (m) See p. 357. {n) 1 K. P. C. 162. SEIZURE OF GOODS. 51 Cha'p, II.] the order made was “ a further order that the defendant should deliver up to the plaintifPs the infringing machines and such barbed wire as the defendant had manufactured by means of the infringing machines.” This case, although it marks such a startling departure from the then existing practice, does not much assist the reader to discover the source of the new jurisdiction for the only reason assigned for granting this particular relief is that the plaintiff had asked for it. An appeal from this judgment was notified but not prosecuted. It was little likely that the new weapon, when once forged, would be suffered long to lie by unused and in point of fact, instances of its use have greatly multiplied within the past few years and now a prayer for this form of relief has become common form of pleading in actions for infringement of patents. The reports, however, are nowise instructive as to the principle upon which the Courts have assumed this enormous power over an infringer’s property. Strangely at variance as it is with all the traditions of the law and, with great humility be it added, with all sound principle, it has been over and over again asserted and in the most absolute terms and always without challenge during the past ten years. Thus in The United Telephone Co. v. Walker (1887) (o), there was an order directing an inquiry as to damages and delivery up of infringing instruments. Upon a review of the chief clerk’s certifi- cate, Chitty, J., said: “It was said by the defendants that there ought to be a set-off, as against these damages, of the value of the instruments which had been given up under the judgment. That appears to me to be absolutely untenable. The judgment is that those instruments should be delivered up, and the plaintiffs have not to pay for them in any form. That is one of the penalties which the patent law imposes on the infringer.” Other examples might be quoted from the recent reports but they would serve no useful purpose for the doctrine in question has now been exhibited in its full proportions. Indeed it does not admit of any more peremptory statement than is found in the dictum just cited. Such being the state of the law, or rather of the authorities, it is certainly a matter meriting consideration what rights a plaintiff would have under this provision of the Statute of Monopolies whose goods had been, seized, carried away and detained by virtue of this new jurisdiction and under colour of a patent subsequently found to be invalid and, say, repealed. It is also a matter meriting Modern doctrine, United Tele~ phone Co. v. Walker. {p) 4 R. P. C. 67. E 2 52 THE STATUTE OF MONOPOLIES. \_Chap. II. consideration in what circumstances, if at all, a successful plaintiff can be safely advised to seize and appropriate the property of the defendant under this new practice. and will sue to be relieved in or for any of the premises, that then and in every such case the same person and persons shall and may have his and their remedy for the same at the common law, by any action or actions to be grounded upon this statute. Action on the statute. See pp. 12 and 96. Kemedial or penal statute. Therefore the statute must be pleaded [p). But it would seem that a merely formal defect in the pleading need not shut out the statute if the statutable remedy has actually been present to the minds of the parties, but may be remedied by an amendment made at the trial, or even then directed to be made (g). These words should be carefully considered in connection with any proceedings taken under this section. The whole subject, as has been already said, is entirely bare of authority, and therefore any observations which may here be put forward are made only by way of suggestion. But subject to this reservation it is conceived that this clause will be found very materially to affect the form and even the substance of any proceedings which may be taken under the section. The question of form will be separately dis- cussed in connection with the subject of pleadings in an action (r) of this kind. The question of substance may be more conveniently considered here. In point of substance the main question that arises is, “Is this a penal or a remedial statute ” ? That the whole Act in its general scope is remedial admits of no doubt. It is made in furtherance of the common law(s) and for the purpose of giving relief to parties aggrieved {t) it gives no penalty to a common informer, but only to an injured party (m), and it may perhaps be considered to be made in furtherance of trade [v). But although the statute, considered as a whole, is remedial, it does not follow that this particular enactment may not be con- sidered to be penal {w), and it falls apparently within the definition {p) Wells V. Igulden, 3 B. & C. 186 ; TucTc v. Southern Counties Dep. Bank, 42 Ch. D. 477. ( q) Herrburger v. Squire, 5 R. P. C. 589. (r) See p. 143. (s) Co. Lit. 76, a; Seydonh Case, 3 Co. Rep. 7, b. {t) 2 Inst. 572; Lord Hunting tower v. Gardiner, 1 B. & C. 299 ; Wil- kinson V. Colley, 5 Bur. 2698 ; Fife V. Bousjield, 2 D. & L. 481, 483. (m) Ward v. Snell, 1 H. Bl. 13 ; Rex V. Justices of York, 1 Ad. & E. 834. {v) Milne v. Graham, IB. & C. 192. See judgment of Denison, J., in Rawlinson v. Stone, 3 Wils. 4. {w) Hyde t. Cogan, Doug. 705. PENAL STATUTES. 53 Chap, II.] that a penal statute is a statute which imposes a penalty (*). It is even arguable that it creates the offence for which the penalty is given, for although a monopoly was a grievance at common law, as appears from the preamble of the Act and the declaration of the Book of Bounty, yet this is ajDparently something more than a new remedy for the old grievance. At least the action is to be “ grounded upon this statute,” and if that signifies, as well it may, that the statute is a part of the meritorious cause of action, then it is clear that the cause of action is something more than the common law grievance. The case may perhaps be illustrated by an analogy from the criminal law. Larceny by a bailee is a statutable felony but at common law it is not larceny at all but merely detinue. By the Larceny Act {y) the common law tort has become a statut- able crime. So here the common law tort of monopoly has become a statutable grievance penalised by treble damages and double costs. If this view be correct, it is not easy to deny that the action given by this section is a penal action and if the Courts are still disposed to follow the old rule that penal statutes must be strictly construed it may be that important consequences materially affecting the rights of the parties in the action will ensue. But will the Courts now observe the old rules ? The drift of recent authorities makes this doubtful although it may not be possible to cite a decision in which the old doctrine has been noticed to its discredit. But expressions like that of Lord Selborne in the Caledonian Raihuay Co. v. North British Railway Co., show a tendency to assimilate statutes to other written docu- ments, and put them all, as far as possible, under one comprehen- sive rule of construction in accordance with the grammatical sense : — “ There is always some presumption in favour of the more simple and literal interpretation of the words of a statute or other written instrument ” ( 2 :). To the same effect is Lord Blackburn’s dictum “ . . . there is not much doubt about the general principle. Lord Wensleydale used to enunciate that which he called the golden rule for con- struing all written engagements. I find that he stated it very clearly and accurately in Grey v. Pearson {a) in the following terms ; — ‘ I have been long and deeply impressed with the wisdom of the rule now, I believe, universally adopted at least in the Courts of Law in Westminster Hall, that in construing wills and Penal sta- tutes, how construed. Caledonian Rail. V. Rorth British Railway. Grey v. Pearson. ix) Earl Spencer v. Swannell, 3 (z) 6 App, Cas. 121. M. & W. 163. {a) 6 H. L. C. at p. 106. {y) 24 & 25 Viet. c. 96, s. 3. 54 THE STATUTE OF MONOPOLIES. \_Chap, II. Dudgeon v. Thomson. Hay V. Lord Drovost of Perth. 21 Ja. 1, c. 4. indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to he adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so far as to avoid that absurdity and inconsistency but no farther.’ I agree in that completely ” (&) ; and by Lord Cairns in Dudgeon v. Thomson and another {c), who there says, “There used to he a theory in this country that persons might infringe upon the equity of a statute.” A mere comparison of these dicta with the numerous instances in which Lord Coke discusses the question whether a case within the letter of the law is within the meaning {d), and other niceties upon the construction of statutes (e), serve to show how widely divergent is the new point of view from that of earlier days. But perhaps the reconciling word is to be found in the dictum of Lord West- bury in Hay v. The Lord Provost of Perth {f), that “ it was per- fectly competent to the Courts in Scotland to extend their decision beyond the letter of ‘the enactments, proceeding upon that which we are accustomed to call in England the equity of the statutes, a mode of interpretation very common with regard to our earlier statutes and very consistent with the ^principle and manner according to which Acts of Parliament were at that time framed P Having regard to the principle and manner of framing, the Statute of Monopolies can hardly be distinguished, save as excelling in the precision of its language, from the most modern legislation. Upon the whole, therefore, it would seem that the Courts will probably apply the statute without straining either towards a benevolent or a strict construction, but following the grammatical sense and leaving to the Legislature any modifications of the severity of its provisions which may be necessary to bring it into harmony with modern views on the subject of the rights of patentees. There is, however, another question beside the question of benignant or strict construction which is of great importance to litigants. By the Act 21 Jac. 1, c. 4 (An Act for the ease of the subject concerning the informations upon Penal Statutes), s. 4, it is provided that “ if any information, suit or action shall be brought or exhibited against any person or persons for any ofience com- (i) 6 App. Cas. at p. 131. (c) 3 App. Cas. 44. (d) See, for example, 2 Inst. 106, 110, 386, 427, &c. (e) See, for example, 2 Inst. 152, 242, 572, &c. (/) 4 Macqueen, Sc. App. 544. 65 Chap, II.] IS THE FOURTH SECTION PENAL ? mitted or to be committed against tbe form of any penal law General issue either by or on behalf of the king or by any other, or on the behalf statute. of the king and any other, it shall be lawful for such defendants to plead the general issue that they are not guilty or that they owe nothing, and to give such special matter in evidence to the jury that shall try the same, which matter being pleaded had been good and sufficient matter in law to have discharged the said defendant or defendants against the said information, suit or action, and the said matters shall be then as available to him or them to all intents and purposes as if he or they had sufficiently pleaded, set forth or alleged the same matter in bar or discharge of such information, suit or action.” The question is whether a monopoly is an offence against the fourth section of the Statute of Monopolies within this law and, if so, whether the fourth section is a penal law within the meaning of this clause. It is not easy to believe that the legislature intended this to be the construction of the present clause. Indeed when it is borne in mind that these two statutes, the one relating to monopolies and the other to relief from the prosecution of penal laws, were passed in the same Parliament and are actually consecutive the one to the other upon the Statute Book, it is inconceivable that the one was intended to control and modify the operation of the other. Another consideration which makes for the same view is that it was so plainly the intention of the legislature to treat monopolists with severity that it cannot in reason be credited with a disposition to extend to them the privilege conferred by this section of the Act for the ease of the subject, and these two arguments are strongly cor- roborated by a third, which is furnished by Sir Edward Coke in his Commentary upon the Statute of Monopolies. He says that the reason of it “ is notably expressed by the resolution of all the judges of England in the Ca&e of Penal Statutes'^g)^ and to that case he gives a reference. Turning now to the Case of Penal . 704 ; JBlair v. Eisler, 21 Q. B. D. 185. ib) R. S. C., Ord. XXI. r. 20. (c) 36 & 37 Viet. c. 66, s. 24, 8ub-8. 5. {d) See above, p. 35. ie) 19 Hen. 7, c, 21. (/) Rememb. 521. {g) Ibid. 64 Imparlance. Writ of error. Of attaint. THE STATUTE OF MONOPOLIES. \_Chap. II. nor any more than one imparlance After the declaration and before the defendant can be compelled to plead, many times there is an imparlance '^hich is a longer and further day given by the Court, and usually till the first day of the next term, upon a petition made by the tenant or defendant ^Thereby he craveth respite (A). The doctrine of imparlances need not be pursued, for it has been held that they were altogether abolished by the Uniformity of Process Act, 1832 (?). and if any person or persons shall, after notice given that the action depending is grounded upon this statute, cause or procure any action at the common law grounded upon this statute to be stayed or delayed before judgment, by colour or means of any order warrant power or autho- rity, save only of the Court wherein such action as aforesaid shall be brought and depending, or after judg- ment had upon such action, shall cause or procure the execution of or upon any such judgment to be stayed or delayed by colour or means of any order warrant power or authority, save only by writ of error or attaint, that then the said person and persons so offend- ing shall incur and sustain the pains penalties and forfeitures ordained and provided by the statute of pro- vision and praemunire made in the sixteenth year of the reign of King Richard the Second. or after judgment The preceding clause does not extend to the judges who try the cause, for before judgment days must be given by orders of Court. But the clause following upon these words is more general, and extends to the judges of the Court where the action is depending. So determined by a Joint Committee of Parliament (/). writ of error or attaint The writ of error lay for an error in law apparent on the record (A) or where an exception was disallowed by the Court (?). The writ of attaint lay from a false verdict by a jury whom it (A) 14 Vin. Ab., tit. “ Impar- [j) 3 Inst. 183. lance” (B), 336. (A) 2 Inst. 426. (i) 2 Will. 4, c. 39, s. 11 ; Kurse Statute of Westminster the V. Geeling, 3 Dowl. P. C. 158 ; Second, c. 31. Wigley v. Thomas^ 3 Dowl. P. C. 7. 65 Cha^. II.] PEJEMUNIRE — SAVING CLAUSES. charged with perjury (m). The writ of attaint was abolished by the Juries Act of 1825 {ri), the pains, penalties, and forfeitures ordained and provided by the Statute of Provision and Praemunire made i6Eic. 2, c. 5. in the 16th year of the reign of King Richard the Second Mr. Christian, in a note to Blackstone’s Commentaries, wrote so long ago as 1809: “The terrible penalties of a praemunire are Frcemunire. denounced by a great variety of statutes, yet prosecutions upon a praemunire are unheard of in our Courts. There is only one instance of such a prosecution in the State Trials, in which case the penalties of a praemunire were inflicted upon some persons for refusing to take the oath of allegiance in the reign of Charles II.” (o). It is fortunate in this state of the practice that the offences against which these penalties are here denounced have in the progress of events become as obsolete as the penalties themselves. Section 5. This section, which saved subsisting patents for new inventions Section 5. from the operation of the Act, does not call for notice in this place, being in all material respects identical for present purposes with Section YI. It was repealed by the Statute Law Revision Act, 1863 (i?). Section 6. provided also The repeal of Section Y. has reduced this opening phrase of the Section 6. sixth section to nonsense. The meaning, of course, is — “provided nevertheless.” any declaration before mentioned shall not extend The form of this saving clause is very remarkable and seeing The general that it is the corner-stone of our existing patent law it would have saving clause, been nowise surprising if it had received more attention than has in fact been bestowed upon it by judges and other expositors of the law. In the first place it is remarkable that the saving has refer- ence only to the declaration, not to the enactments of the statute. No doubt the statute is in the main declaratory of the common law; that appears from the first clause following upon the preamble, and {m) Blake^s case, 6 Co. Rep. 44 ; Eortescue De laud. Ang. ch. 26. (w) 6 Geo. 4, c. 50, s. 60. \o) Trial of Jno. Crook and G. others, 2 Harg. St. Tr. 463 ; Yol. 6, p. 226 of the octavo edition ; 4 Bl. Com. 118 (15th ed.). {p) 26& 27 Yict. c. 125. F 66 Form of the saving clause. The declara- tions pointed at. THE STATUTE OF MONOPOLIES. {Chap, II. accordingly many of its enactments might in a sense be designated declarations. But this will not meet the case, for the third and fourth sections are certainly not declaratory of the common law, but statutory provisions superadded in furtherance and corrobora- tion of the common law, which had been found insufficient to prevent the growth of the mischief of monopoly. In terms then this clause does not exempt patents for new inventions from the purview and penalty of those two clauses, and if the language be very narrowly scanned it will appear that the exemption does not in fact extend to anything except the king’s declaration mentioned in the preamble. This is the only declaration which can aptly be spoken of as “before mentioned.” The declaratory enactments of the first and second sections are not mentioned, they are uttered in the foregoing text of the statute, and cannot therefore with strict propriety be identified with “ any declaration” in this phrase. It is not possible to attribute the strangeness of this expression to mere ineptitude on the part of the draughtsman, nor indeed will anyone who has read the statute through with care be in the least disposed to attribute to him such a lapse from the admirable style of the whole context. This however is not a question of literary criticism, for we see by reference to the next section (7) of the Act how perfectly effectual the language of the legislature was when it was intended to express a saving without reserve. Moreover we know fi’om Sir Ed. Coke that the Parliament deliberately refrained from affirming the goodness of patents saved by the fiith and sixth clauses of the Act because it was thought that the times limited to them were too long for the retention of the privilege in private hands and that the commonwealth should become a partaker with the patentees within a shorter space of time and, in particular, it was feared that apprentices who came to learn their manufactures from patentees might be compelled, even after the expiry of a seven years’ apprenticeship, to continue as apprentices or servants still during the residue of the privilege and that consequently such numbers of men would not apply themselves thereunto as should be requisite for the commonwealth after the privilege ended. “ And,” adds Sir Edward, “this was the true cause wherefore both for the time passed and for the time to come, they were left of such force as they were before the making of this Act” (g-). It may still be thought that the phrase “any declaration” cannot very aptly be applied to an individual statement individually iden- tified in the context ; but a reference to the statement itself will set (g) 3 Inst. 184. 67 Chap, II.] EFFECT OF THE SIXTH SECTION. any such doubt at rest. The declaration, as embodied in the preamble of the Act, comprises four different matters and in- validates (1) grants of monopoly, (2) grants of the benefit of penal laws, (3) grants of dispensing power and (4) grants of power to compound. The declaration as cited in the preamble is somewhat abridged from its original form as may be at once seen upon refer- ence to the King’s Book (r). There is, therefore, perfect propriety in referring to it as a group of declarations respecting which the expression “any declaration before mentioned” would most naturally be used in this place. What then is the precise effect of this saving which has been so carefully phrased with the view of excluding any operation of the statute upon the common law ? This point, singularly enough, is at the present time quite bare of authority but, even so, there are certain considerations which must be material whenever it comes to be considered and some of these may, with great respect, be here submitted for the consideration of those to whom it may hereafter fall to argue the point. In the first place it will be material to consider what effect has been given to the declaration defeated by this proviso and for that purpose to examine the form of the Act. This subject has been approached in a former chapter (s) from a somewhat different point of view and not to go over ground already trodden, I will here assume that the Act is framed so as first to endorse the king’s declaration and pro- mulgate it anew and then to add certain enactments for rendering it more effectual in the future than in the past it had proved to be. Now, putting aside penal laws — which are somewhat less directly connected with the present subject — we are left with the proposition ALL GRANTS OF MONOPOLIES ARE CONTRARY TO LAW. This is the fundamental proposition, this the declaration par excellence. That of course includes patents for new manufactures and in Noy’s report of Darcy's Case they are expressly alluded to by the words “ monopoly patents ” (i). And they, equally with the playing card monopoly, are within the mischief of the statute so defined and therefore within the provisions made for its suppression. To avoid this conclusion the sixth section provides that the de- claration shall not extend to certain classes of grants of privilege in respect of new manufactures and thus it ipso facto becomes a statutable definition of the word monopolies, for it puts a statutable limit upon the extent of the meaning of that word. The limitation so imposed applies of course wherever throughout the Act the word Analysis of the Statute of Monopolies. See above, p. 21. {t) Noy, 182. See below, App. II. p. 219. F 2 (r) See App. I. p. 161. (s) See above, p. 21. 68 The sixth section. THE STATUTE OF MONOPOLIES. \_Chap. II. monopoly is used in the sense of the declaration. In the statutable sense a patent or other grant of privilege within sect. 6 is no monopoly and against such grants sects. 3 and 4 are inoperative because these sections by their terms can only take effect upon “ monopolies ” or the grantees of “monopolies.” That the word “ monopoly ” is used in a wider than this statut- able sense in sect. 2 may be readily conceded. And here it may be pointed out that there is no difficulty whatever involved in ascrib- ing the two senses to the one word. The sixth section is not in form a defining section, it operates directly on the declaration and indirectly only on the ivords of the declaration. When therefore a definition of the word “monopoly” is deduced from it, that defini- tion will apply only to the word as used in that context, or else- where in the same sense. Now it is very plain that in sects. 3 and 4 the sense is the same for they, like the declaration, proceed upon the premisses that the monopoly is invalid. Sect. 2, on the other hand, contemplates an inquiry into the validity of the monopoly and hence to the word “ monopoly ” as there used the larger mean- ing must necessarily be attributed. Assuming then that no difficulty remains as to the meaning of the words, the construction of the Act may proceed as fol- lows : — 1 . It declares that all monopolies are contrary to law. 2. It asserts that certain monopolies have been procured in defiance of the law. 3. It provides with a view to the avoiding of these illegal mono- polies and for the preventing of the like in time to come — (a) for the republication of the law by Act and authority of Parliament. (Sect. 1.) (b) for trying the validity of all claims to monopoly by common law. (Sect. 2.) (c) for disabling all persons for the use or exercise of any monopoly. (Sect. 3.) (d) for giving a new and effective remedy to persons , aggrieved by any monopoly. (Sect. 4.) But it provides also that certain specified patents shall not fall under the terms of the declaration. Therefore upon the principle cessante ratione cessat ipsa lex (w), the republication of the law (a), the (w) For precedents of the application of this rule to the construction of statutes, see 2 Inst. 11. 69 Chajp. II.] GENERAL PATENT LAW. disabling provisions (c) and tbe new remedy (d) must all be in- operative as against tbe excepted grants. In effect therefore it would seem to have been but an unimpor- tant difference between the form of saving clause adopted in the sixth and that in the seventh sections. This conclusion is, how- ever, the result of experience and could not have been reached with equal certainty, perhaps not at all, by those who had no experi- ence to go upon save their own bitter experience of the manifold inconveniences to which monopolies, conferred upon favourites of the court and suitors of the king, gave rise. That they should have drawn the distinction between the best royal grants and grants conferred by Parliament is far less surprising than that the course of subsequent events should have obscured their point. for the term, &c. At this point we reach the beaten track of patent law. The General remaining provisions of this section have been so fully discussed in law. reported decisions and text books that the only service which the present commentator can now do his readers is to refer them to the elaborate works of Goodeve, Lawson, Higgins, Terrell, Edmunds, Cunnynghame, Erost, Griffin, Hampson (Digest of Patent Office Reports), and many other contemporary writers — too many indeed for individual mention. 8. Provided also, That this Act shall not extend to Sections, any warrant or privy seal made or directed, or to be made or directed by his majesty, his heirs, or successors to the justices of the courts of the king’s bench or com- mon pleas, and barons of the exchequer, justices of assize, justices of oyer and terminer and gaol delivery, justices of the peace and other justices for the time being, having power to hear and determine offences done against any penal statute, to compound for the forfeitures of any penal statute depending in suit and question before them, or any of them respectively, after plea pleaded by the party defendant. Warrants of this kind to mere busy bodies are struck at by the Common declaration and the enactments of the first section of the Act. That informers., such persons had become very pestilent in the time of Elizabeth and the first James may well be credited. A striking instance is the case of Sir Giles Mompesson, one of the charges against whom 70 THE STATUTE OF MONOPOLIES. [_Chap» II. Sections 9, and ttie rest. Special savings. was that he had procured a warrant to compound for the penalty of obsolete laws touching the price of horse meat (cc). The remaining sections of this Act do not call for commentary since they relate only to exceptions created in favour of monopolies that have long since ceased to have any force. They will however repay careful perusal in connection with the parliamentary debates and detailed history of the time for they are the direct outcome and therefore expression of the compromise with powerful and not seldom mischievous interests by which the bill was navigated through a troublous passage in the House of Lords and probably elsewhere in the verge of the Court. {x) 1 Pari. Hist. 1201. ( 71 ) CHAPTEE III. COMMENTARY ON THE 32nD SECTION OF THE PATENTS ACT, 1883 (a). This section has been construed by the Courts with refer- ence to the common law concerning threats of the enforce- ment of patent rights (b ) , which has been taken to be embodied in the two cases of JFre n v. Weild{c), and Halsey v. Brotherhood (d)^ and may be extracted from those authorities in the following passages : — “ As soon as it was shown in evidence that the defendant really had a patent right of his own and was asserting it, the occasion privileged the communication, and the plaintiffs were bound • to prove such malice as would support the action The advisers of the plaintiffs seem to have thought it was enough to maintain this action to show that the defendant could not really have maintained any action, and that if well advised he would have been told so, so as in this action indirectly to try the question whether an action for the infringement of the patent could have been main- tained, whereas, as we think, the action could not lie unless the plaintiffs affirmatively proved that the defen- dant’s claim was not a bona fide claim in support of a right which (with or without cause) he fancied he had, but a maid fide and malicious attempt to injure the plaintiffs by asserting a claim of right against his own knowledge that it was without any foundation ” (e), and “ a patent so long {a) 46 & 47 Viet. c. 57. (J) See Challender v. Royle, 4 B. P. C. 370 ; Barrett and Elers, Limited v. Bay, 7 B. P. C. 58 ; Skinner v. Shew, (1893) 1 Ch. 420 ; Skinner v. Perry, 10 B. P, 0. 5. {c) L. B. 4 4 B. 730^ {d) lg :C£Ijj...5i4jT9 Ch. D. 386. Wren v. Weild, L. B. 4 Q. B. 737. Wren v. Weild. See p. 12. 72 COMMENTARY ON 32ND SECTION. \_Chap. III. Sdlsey v. Brotherhood. See pp. 14,73 Skinner v. Shew (or Perry). as it subsists is prima facie good, and therefore a patentee who issues notices against purchasing from a vendor alleging infringement of his patent is not hound to follow up his notices by taking legal proceedings, and provided he issues the notices hona fide in assertion of what he believes, though erroneously, to be his legal rights under his patent, he does not render himself liable to an action by the vendor for damages for injury caused by issuing them, though he may be liable, notwithstanding his hona fides^ to be restrained by injunction from continuing to issue the notices if it is proved in the action for an injunction that his allegation of infringement is untrue” (/). ‘‘ Therefore .... the plaintiff must make out, if he wants to maintain an action for damages, that the defen- dant has not been acting bond fide. If he wants an in- junction he must make out that the defendant intends to persevere in making the representations complained of, although his allegation of infringement by the plaintiff is untrue ” {g). The result of these cases was compendiously stated by Bowen, L. J.. i n Skinner v. Shew_{h), to the following effect : — “ At common law there was a cause of action whenever one person did damage to another wilfully and intentionally and without just cause or excuse. Under the head of that class of action came the action of slander of title, whether the subject of the slander was real or per- sonal property. If a man falsely and maliciously — because the malice would show there was no just cause — made a statement about the property of another which was calcu- lated to do and which did do damage to the other in the management of that property, an action would lie at common law and damages would be recoverable, and in Chancery, I suppose, that even if you could not prove that (/) Halsey v. Brotherhood, 15 (y) Halsey v. Brotherhood, ubi Ch. D. 514. Headnote quoted by suj)., p. 523. Lindley, L. J., in V. {h) (1893) 1 Ch. D. 422. See 10 R. P. C. 6. also Skinner y. Perry, 10 R. P. C. 6. 73 Cha^, III.] THREATS APART FROM STATUTE. actual damage had occurred, the Court might, if actual damage was likely to occur, prevent the wrongful act by injunction It is to be observed that in order to make good such a cause of action at common law or to make good such an application for interference by a Court of Equity you must show that the statement was false and malicious, a wilful act done without just cause or excuse. And in the case of a person putting forward in the maintenance of what he conceived to he his rights a false statement which was not in itself defamatory, believing it to be true, even if the statement did damage to another person, an action would not lie at common law and the Court of Equity would not interfere. Why ? Because he would be acting upon his rights in putting forward his own case. The law would not accordingly interfere, and a threat about infringement or alleged infringement could not therefore be made the subject of an action or a suit unless the plaintiff was prepared to show that it was made mala fide and that there was no reasonable excuse for it.” It will be observed that the statement concerning the The rule in law as to injunction made here by the Lord Justice differs somewhat from the dictum above quoted from Jessel, M. E,., inHaUeyY. Brotherhood {i), inasmuch as malice, which is in Halsey y. the last-mentioned judgment only connected with the gee^botr^' right to recover damages, is here made a condition of the p- 72. right to an injunction. But it is probable that the M. E.’s somewhat gnomic rule is not quite accurate, for in dis- missing the claim to injunction in Halsey v. Brotherhood he himself said, “I have read the whole statement of claim through almost verbatim, because I want to show .... that there is no allegation .... that the defendant in- tends to continue the same course of conduct, although he was aware that there had been no infringement on the part of the plaintiff” (k). In the passage here printed in italic type the judge himself suggests an allegation of express (i) See above, pp. 14, 72. ik) 15 Ch. D. 524. 74 COMMENTARY ON 32ND SECTION. [_Chap, III. malice as being indispensable to tbe statement of the plaintifi’s case. This view was expressly adopted by tbe Court of Appeal in affirming tbe decisions of tbe M. E»., Coleridge, L. C. J., observing, “ It seems to be clear that if a statement is made in defence of tbe defendant’s own property, altbougb it injures and is untrue, it is still wbat tbe law calls a privileged statement ; it is a statement that tbe defendant bas a right to make, unless, besides its un- truth and besides its injury, express mabce is proved ; that is to say, want of hona fides or presence of mala fides^\k) ; and Lindley, L. J., “It seems to me that no injunction will lie against him so long as be acts honestly. But if it is proved that bis statement is false to bis know- ledge, and there is reason to suppose that be intends to repeat those false statements, an injunction ought to lie, because be would be about to do that which be bas no right to do”(/). And tbe same view bas been generally adopted in our Courts (m). But in tbe case of Sousehold Household V. and Rosher v. Fairhurn and Mallin), Kay, J., considered Fairburn. although an injunction ought not to be granted tbe patentee might be put under terms to prosecute an infrin^ ment action. Subsequently on bis failure to observe tb * terms and prosecute tbe action with due diligence, tbe injunction was granted (o). Object of tbe This section in tbe Patent Act was introduced after 32iid section. partly in consequence of tbe decision in Salsey v. Brotherhood. Tbe object was to cure two blots; first of all, to give an action for damages where there was not one before ; and secondly, to enable an action to be brought against a man who uses threats unless be will or does follow up bis threat by commencing an action himself. Tbe substance of tbe section is that you are not to threaten ; {k) 19 Ch. D. 388. V. Tarnell, 13 R. P. C. 394. See Ibid. p. 393. also with reference to the common (m) See Brauer v. Sharp, 3 R. P. law as to threats, Challender v. C. 197 ; Eng. andAmer. Machinery Boyle, 36 Ch. D. 425. Co., Limited v. Gare Machinery Go., (n) 1 R. P. C. 114. Limited, 11 R. P. C. 681 ; Dredge (o) 2 R. P. C. 142. 75 Cha;p, III.] THE MISCHIEF OF THREATS. you are not to do it even in a general kind of way which might not be regarded as a threat to any particular person. You are not to do it even by a circular or advertisement, but if you do threaten no action is to lie against you if you will prosecute the person aimed at by your threats (/;)• It must here be observed that the common law as ex- The mischief, pounded in Wren v. Weild and in Halsey v. Brotherhood threw on parties aggrieved an onus which made almost nugatory the remedy given by law in cases of asserted patent right. For it must necessarily be extremely difficult to prove that the persons complained of had made their assertions of patent right maliciously and without just cause or excuse. “ What is the subject-matter in the first part of the section ? It is a threat about a patent action. Now, every person of common sense knows what is involved in patent actions, and what the expense of them is, and everybody knows that to be threatened with a patent action is about as disagreeable a thing as can happen to a man of business, and is the thing most calculated to paralyse a man in his business, even if he be innocent of any infringe- ment of patent law. . . . The Legislature desires that threats of patent actions shall not hang over a man’s head — that the sword of Damocles in such a case should either not be suspended or should fall at once, and it is with that view that the section seems to be framed” {q). This section im- poses an absolute prohibition against a person’s threatening unless the threatener can bring himself within either of the two saving clauses at the end of the section. A man shall not threaten legal proceedings unless the manufacture to which the threat applies infringes the legal right of the threatener or unless the threatener is about to bring forth- with an action to show the validity of his threats. If he cannot bring himself within either of those two saving clauses, then the section absolutely forbids his threatening {p) Per Lindley, L. J., in Shin- {q) Ibid, per Bowen, L. J., pp. nerv.Shew, (1893) 1 Ch. 421. (See 423—425. also Skinner v. Ferry ^ 10 R. P. C. 5.) 76 Bona fides. Privilege. See pp. 14, 79. New remedy not penal. See below, pp. 85, 143. “ Threats ” action. Corporation. COMMENTARY ON 32ND SECTION. III. legal proceedings with regard to a patent action at all and it is nihil ad rem to say that what he did was bond fide, or that what he did was on a privileged occasion because the section enacts that a man shall not threaten unless he comes within either of the two provisoes at the end of the section (r). The action given by this section is a new remedy, and has been held to be based on a new cause of action (s). Whether it is in the nature of a penal action has been considered and, apparently, with the result that it has been held not to be such {t), and indeed it would seem to be clear upon principle that this is not in any sense a penal statute (?^). The action founded upon this section is now familiarly known as a “ threats ” action — a convenient term for which we are apparently indebted to Mr. Justice Kekewich, who seems to have invented the expression, or at least to have given it currency and judicial sanction, in the course of his judgment in Combined, 8^c. Co. v. Auto- matic, ^'c. Co. (x). The section is as follows : — 32. Where any person Tke action lies against a corporation. This has been expressly decided in one case {y) and has been acted upon in many cases ( 2 ). (r) Skinner v. Shew, (1893) 1 Ch. 426, per A. L. Smith, L. J. With further reference to the mischief of threats aimed at in this section see the judgment of Day, J., in Willoughby v. Taylor, 1 1 'R. P. C. 52, and of Field, J., in Crampton v. Patents Investment Co., Limited, 5 R. P. C. 392. (s) Challender v. Royle, 36 Ch. D. 440 ; Combined Weighing and Advertising Co. v. Automatic Ma- chine Co., 42 Ch. D. 668. {t) Driffield, i'C. Co. V. Waterloo, ^c. Co., 31 Ch. D. 642. The judgment here, which is perhaps ambiguous, should be read in con- nection with the argument of Aston, Q.C., on p. 641, which it appears to indorse. (w) See above, p. 52. (a;) 42 Ch. D. 671. (y) Combined Weighing, ^-c. Co. V. Automatic Weighing, ^-c. Co., 42 Ch. D. 669. (ri See Fusee Vesta Co. v. Bryant % May, 4 R. P. C. 194; Ken- sington, %c. Co. V. Lane- Fox Flee. Co., Limited, (1891) 2 Ch. 579. Others might be cited ; the fore- going have been selected because in these cases judgment went against the corporations. 77 Chap, III.] THE CLAIM TO PATENT RIGHT. The threat may be uttered by an agent (a). But the issuing of Agent, the threat must be within the scope of the agent’s authority (6). A solicitor is an authorized agent for this purpose (c), but in the case Solicitor. of threats by commercial travellers the authority must be expressly Commercial , , traveller, proved {a). claiming to be the patentee of an invention The claim may be unfounded in fact. The 46th section of the Act provides that “In and for the pur- Not a patentee poses of this Act. . . . ‘ Patentee ’ means the person for the time being entitled to the benefit of a patent,” and that “ ‘ Invention’ means any manner of new manufacture the subject of letters patent and grant of privilege within section six of the Statute of Monopo- lies. . . . and includes an alleged invention.” These words “ any person claiming to be the patentee of an invention” therefore mean any person claiming to be entitled to the benefit of the patent and include the case of the assignee of a patent and of any person in a similar position having an interest in the patent within the 46th section (e). Thus the words “ by whom all Mr. Lane-Fox’s patents for his system of electric light distribution are now held” in a circular issued by the Lane-Fox Electrical Company brought that company within these words of the section although the com- pany was not in fact the registered owner of the patents (/) nor within the definition of a patentee as given in the patent itself (g), and in Barnett and another v. Barrett it appears to have been taken for granted that the action would lie against a licensee [h). In that case however the report does not show that the question of the action’s abating against the parties defendant was at all discussed, and perhaps the correct view of that case is that as they had written in the circular complained of “ a direct infringement of our patent ” they were persons claiming to he patentees, and therefore within the 32nd section under the rule subsequently enunciated in Kensington V. Lane-Fox (/) and mentioned above. (a) TJngar v. Sugg, 9 R. P. C. 120 ; Combined Weighing, ^e. Co. v. Automatic Weighing, ^c. Co., 42 Ch. D. 669; Driffield, ^e. Co. v. Waterloo, ^c. Co., 31 Ch. D. 638 ; Dow son, Taylor Co. v. The Drosophore Co., Limited, 11 R. P. C. 636. [h) TJngar v. Sugg, 9 R. P. C. 120 . {c) Barrett v. Day, 43 Ch. D. 439. {d) TJngar v. Sugg, 9 R. P. C. 118. {e) Kurtz v. Spence, 3 R. P. C. 371. (/) Kensington, ^-c. v. Lane-Fox, ^c., 8 R. P. C. 280. {g) See p. 108. (h) 1 R. P. C. 9. 78 Rubbisliy patent. Agent not personally liable, by circulars, “ or other- wise.” Object of the 32nd section. See above, p. 74. Oral threats. See below, p. 82. Equivocal threats. General warning. COMMENTARY ON 32ND SECTION. [_Chap. III. The section applies although the patent in respect of which the threat is issued be a rubbishy one (/). But the agent of the person claiming to be the patentee, although he (the agent) personally utters the threats complained of, is not primarily liable under the section. But he may be restrained by the injunction (^’). by circulars, advertisements or otherwise threatens The explanation of the insertion of these words “circulars or advertisements” is that they are to enlarge the words “ or other- wise ” rather than to cut them down. It might well be doubted whether a threat which was not addressed to a particular person, or to a particular customer, could be said to be a threat if it was couched in the general form of an advertisement issued to the world, or a circular issued to the trade. It might be said that it was not a threat at all. “I am only informing the world” — ^the defendant might have argued — “ as to the way in which I intend to do my business.” The statute says circulars and advertisements nevertheless may contain threats, and uses those words ‘ ‘ or other- wise ” so as to sweep into its net every kind of threat the result of which might be to paralyze a man in his trade by holding an action on a patent suspended before his eyes without affording him the opportunity of determining the suspense at once, and bringing the question raised by his antagonist to a speedy and immediate issue (?). Oral threats were held by Bristowe, Y.-C., to be threats within the section in Challender v. Boyle (m). And it seems to have been assumed in the case of Ungar v. Sugg [n), both in the Court below and in the Court of Appeal, that words used by commercial travel- lers in the ordinary course of their business might, if authorized by the person claiming to be the patentee, be threats within the mean- ing of the Act. Threats which upon their grammatical construction are ambigu- ous may be restrained if so framed as to lead people to believe that they are complaints of what the plaintiff is doing as being an infringement of the defendant’s rights (o). A threat may be restrained even if it be expressed in very general terms, although it is no threat within the section merely [j) Johnson v. Edge, (1892) 2 Ch. 9. (^) Overton v. Burn, 13 R. P. C. 455. (Z) Skinner v. Shew, (1893) 1 Ch. 425, 426 ; Crampton v. Pat. Invest. Co., Limited, 5 R. P. C. 393. {m) 4 R. P. C. 366. {n) 9 R. P. C. 118, 120. (o) Burt V. Morgan ^ Co., 4 R. P. C. 281. 79 Chap. III.] WHAT ARE THREATS. to say that whicli the patent itself implies, namely, that anybody in- fringing must expect legal proceedings to be taken against him. It is merely saying what everybody knows already. That is not a threat against anybody in particular. But the question to be considered is — in the case of a circular addressed to the trade for example — ‘ ‘ What can that mean to people in the trade ? ” “ What would they understand by it ? ” If the warning amounts to an intimation that certain things are infringements, and would be so understood by people in the trade, that takes the given warning out of the class of cases alluded to in Ghallender v. Royle (p), and there designated “general warnings ” by Bowen, L. J. {q). Everybody has still a right to issue a general warning to pirates not to pirate, and to infringers not to infringe, and to warn the public that the patent to which the patentee is entitled, and under which he claims, is one which he intends to enforce. But it does not fol- low that because a threat is so worded as grammatically to apply only to the future, therefore it may not in any particular case be in substance and in fact applicable to an actual case of infringe- ment (r). Suppose that a manufacturer is making and issuing machines which the patentee considers to be an infringement of his patent, and the patentee issued a threat really directed against the manufacture and sale of those machines, he could not escape from the section by wording his notice in such terms that according to the letter it was only a general warning to persons not to infringe his patent (s). A threat within this section cannot be justified upon the ground that it was uttered on a privileged occasion. There is nothing in the language of the thirty-second section which invites or allows the consideration of such a question as privilege (i). An intimation does not cease to be a threat because it is addressed to a third person in answer to an inquiry or because it is addressed to the supposed infringer himself. We are not dealing here with libel or questions of publication we are dealing with threats. If I threaten a man that I will bring an action against him I threaten him none the less because I address the intimation to himself, and Understand- ing of the trade. General warning {Ghallender v. Royle). Privilege. See above, p. 76. Addressed to third person. See below, p. 84. {p) 36 Ch. D. 441. \q) Johnson v. Edge^ (1892) 2 Ch. 9, 11 ; Ungar v. Sugg, 8 R. P. C. 388. (r) The words “ applicable to what has been done,” used by Bowen, L. J., in this connection, were very much discussed in John- son V. Edge, (1892) 2 Ch. 10, 12. It is hoped that the Lord Justice’s meaning as ascertained by the Court of Appeal in the later case has been correctly represented in the text. (s) Ghallender v. Royle, 36 Ch. D. 441 ; Willoughby Taylor, 11 R. P. C. 53. {t) Skinner v. Shew, (1893) 1 Ch. 422. 80 COMMENTARY ON 32ND SECTION. {Cliaf, III. Injunction goes against continuance. Evidence of intention to continue, and contra. Threats. Instances. See above, p. 75. Circular to the trade. I threaten him none the less because I address the intimation to a third person (u). The injunction goes against the continuance of the threats com- plained of, and therefore evidence of an intention to continue the threats is necessary (cc). A threat uttered and not withdrawn is continued and from such continuance an intention to continue threatening can be inferred (y). In the closely analogous case of an advertisement issued by the plaintiff in a patent action during the pendency of the action announcing that the action had been brought in consequence of “ continued infringement” and threat- ening the commencement of actions against all persons, &c., an undertaking not to issue, pending the action, any advertisement stating that the defendants had infringed was accepted and the injunction refused (z). But it is to be noted that in this case the motion was not made under the section but upon the ground that the advertisement complained of tended to prejudice the trial of the action. The offence therefore was contempt, not a threat. The following are examples of intimations which have been held to be threats within the section. “ Noticing that you are exhibiting at the above show a ‘ Ealli ’ car mounted on Gee springs, a direct infringement of our patent, we have to request that you will immediately remove same from the show, dismount same, and render us some explanation as to your infringement of our patent rights. Your compliance with our just and reasonable request to avoid any unpleasantness will greatly facilitate matters” (a). “ It having come to our knowledge that certain of our patents are being infringed. ... we hereby caution our numerous friends against purchasing these imitation goods. It cannot be too gene- rally known that all parties who handle a patented article from the maker to the user, including also importers, are liable to the patentee. Our patent solicitor has instructions to take proceedings against all infringers ” (b). This threat was issued in the form of a circular and appears to have been considered by Kekewich, J., not (u) Skinner v. Shew., (1893) 1 Ch. 423, 424 ; Burt v. Morgan^ 4 R. P. C. 280. (ic) Eng. andAmer. Machinerg Co. V. Gare Machinery Co., 11 R. P. C. 632 ; Fusee Vesta Co. v. Bryant % May, 4 R. P. C. 193 ; Brauer v. Sharp, 3 R. P. C. 197- In Burt v. Morgan, 4 R. P. C. 281, an under- taking was accepted in place of an interim injunction. (y) Driffield, (^-c. Co. v. Waterloo, ^•c. Co., 31 Ch. D. 643; Barrett y. Day, 43 Ch. D. 449. (z) Gaulard and Gibbs v. Lindsay, 4 R. P. C. 190. («) Burt V. Morgan Co., 4 R. P. C. 280. (p) Challender v. Eoyle, 36 Ch. D. 426. THREATS. 81 Chap, III.] to have been a threat within the section. See his comments upon this case in Kurtz v. Spence (c). “ Mr. E has handed me your letter of the 15th of April, and in referring to it I beg to state that I am instructed by Mr. E to take proceedings against all infringers ” (c^). This was in a letter addressed by the defendant’s solicitor to the plaintiff’s solicitor, and is commented on by Kekewich, J., in Kurtz Y. Spence [c). “Caution. — Beware of spurious imitations. None are genuine but those sold under Bell’s Patent and Trade Mark. Infringers and those dealing in these spurious imitations are liable to legal proceedings.” In this case the judge appeared to attach some importance to the use ot the present tense “ are liable.” The advertisement in which this threat appeared was issued during the pendency of proceedings to amend the specification (e). “ Caution. — Walsh’s glow-worm lamps are an infringement of my patent, and agents are now going through the country to get all the evidence they can to take legal proceedings against the vendors, that being the course decided upon by my solicitors ” (/). ‘ ‘ It was only Saturday last that my client was enabled to procure a copy of Messrs. Barnett (meaning Barrett) and Yarley’s specifica- tion. It is clearly an infringement upon his patent. I thought it right to have this matter investigated before proceeding. I have now only to notify to you that in the action against your clients claims will be made in respect of this patent. I think it is only right to inform you of this before the writ is issued ” [g). This example is cited because the threat is made in respect of what is palpably no infringement — i. e. a description in a subse- quent specification — and does not allege any “manufacture, use, sale or purchase to which ” the threats relate. It was therefore not within the category of threats enumerated in the section (7i). The point, however, does not seem to have been taken in argument and was probably not present to the mind of the judge when deciding the question. “We have been advised that you as one of the users of the said system of distribution are liable for the infringement. We beg therefore to caution you of the fact and to offer you an indemnity {c) 5 R. P. C. 171. {d) Challender v. Eoyle, 36 Ch. D. 427. {e) Fusee Vesta Co. v. Bryant ^ May, 4 R. P. C. 193. (/) Walker v. Clarke, 4 R. P. C. 113. {g) Barrett v. Bay, 43 Ch. D. 439. (A) See below, p. 84. Threats — instances of. Letter to plaintiff’s sohcitor. Advertise- ment. Letter to plaintiff’s customer. Defendant’s solicitor to plaintiff’s customer’s solicitor. Defendant to plaintiff’s customer. G. G 82 COMMENTARY ON 32ND SECTION. III. Circular issued with goods. Answer to inquiry. Letter to plaintiff’s customer. Admitted threats. Oral threats. See above, p. 78. upon the terms contained in the enclosed circular. Those terms, however, are to be considered as withdrawn if not accepted by the 28th inst.” (k). “ Notice to grocers and others. Information of extensive viola- tion of Mr. W. E.’s patent rights has been received. All parties are warned not to infringe these rights ” (0- “We beg to confirm our opinion previously expressed that the camera in question is an infringement of our patent No. ... We have taken further advice in the matter and are prepared to stop the sale of this camera if placed upon the market. If you are willing to do so, it would save time and trouble if you would give us the name of the manufacturer, and we will communicate direct with him ” (m), “ I am in receipt of your letter of yesterday’s date, and am very sorry to hear what has happened. I think at any rate you might have asked me a price for my gas-buoy lanterns. I am very much afraid that this matter will lead to a great deal of difficulty and some unpleasantness and ill-feeling, and you must not be surprised if this company applies for an injunction against Mr. D. ... to restrain him from selling his gas -buoy lanterns” [n). This threat was contained in a letter to the purchasers of the lanterns in question. Thei-e are numerous reported cases in which the threat of legal proceedings has been so express and pointed that the question threat or no threat did not admit of argument (o). The foregoing threats are all contained in written communica- tions. In Cliallender v. Royle complaint was made of oral threats, in addition to a threat expressed in writing. The facts deposed to were that a gentleman, known to be a traveller or agent represent- ing the defendant, came into the deponent’s place of business and asked for one of C ’s patent tap unions. He was supplied with one and thereupon left the shop, but returned in a few min utes and ik) Kensington, ^c. Co. v. Lane- Fox Elec. Co., (1891) 2 Ch. 574. {1) Johnson v. Edge, (1892) 2 Ch. 2. {m) Skinners. Shew, (1893) 1 Ch. 414. in) I)oi(qlassY. Pintsch, 13 R. P. C. 675, 680. (o) The following may be enu- merated : — Barnett and Foster v. BarreWs, ^c. Co., Limited, 1 R. P. C. 9 ; Lriffield, ^-c. Co. v. Waterloo, ^•c. Co., 31 Ch. D. 638; Eerr- burger v. Squire, 5 R. P. C. 584 ; Combined Weighing, ^c. Co. v. Automatic, ^c. Co., 42 Ch. D. 666 ; Colley v. Hart, 7 R. P. C. 106; Mackie v. Solvo Laundry Co., 9 R. P. C. 466 ; Edlin v. Pneumatic Tyre Co., 10 R. P. C. 312; Eng. and Amer. Machinery Co. v. Gare Machinery Co., 11 R. P. C. 628 ; JJowson, Taylor Co. v. Prosophore, ^•c. Co., 12 R. P. C. 96 ; Overton ^ Co. Y. Burn and others, 13 R. P. C. 455. 83 Cha]p, III.] WHAT IS NOT A THREAT. stated tliat tlie tap union sold to him was an infringement of a tap union of which Mr. E was the inventor, and which was duly- protected by letters patent, and that Mr. E contemplated legal proceedings in respect of the infringement, and cautioned the de- ponent’s firm not to sell any more of 0 ’s patent tap unions. A second instance of a threat made in conversation was also given in evidence, and Bristow, V.-C., held that these threats were covered by the words “ or otherwise ” in the section ( p). An intimation not a threat. It does not appear from the reports that the defence of no threat has ever yet been made good in any contested case. But the following dicta indicate what in the view of the Courts are intimations that do not amount to threats : — By Bowen, L. J., in Challender v. Boyle [q): “Everybody, it seems to me, has still the right to issue a general warning to pirates not to pirate and to infringers not to infringe, and to warn the public that the patent to which the patentee is entitled and under which he claims, is one which he intends to enforce.” By Wright, J., in Ungar v. Bugg (r) : “The section of the Act is limited to threats, and I do not think that it subjects a patentee to an action for publishing a general statement that he claims to be the owner of a valid patent which covers all articles of a particular description ; nor do I think that it makes him liable for a statement such as that he has an action pending against a third party for infringement, unless that statement is in fact meant or calculated to operate as a threat.” ' By Bindley, L. J., in Johnson v. Edge[s): “I cannot suppose that the section prevents a patentee from saying that which the patent itself implies, namely, that anybody infringing must expect legal proceedings to be taken against him. ... It is merely saying what everybody knows already. That is not a threat against any- body in particular.” The Lord Justice then proceeded to consider the case of a threat issued with reference to an intended infringe- ment but before any infringement actually committed with refer- ence to the dictum of Bowen, L. J., in Challender v. Boyle {t), and was of opinion that such a threat issued in advance of the infringe- ment in question would nevertheless be within the section. But he qualified the expression of opinion with a doubt. By Kay, L. J., in the same case. . . . “ If a man stated ‘ I have got a patent and I mean to protect that patent by enforcing all my legal rights under it,’ a general warning of that kind, not pointed [p) 4 E. P. C. 366. is) (1892) 2 Ch. 9. {q) 36 Ch. D. 441. (if) 36 Ch. D. 441. (r) 8 R. P. C. 388. G 2 What is not a threat. Opinion of Bowen, L. J. Opinion of Wright, J. Of Bindley, L. J. Of Kay, B. J. 84 Of Day, J. Threats addressed to a third person. See pp. 79, 85. Nature of threat. See above, p. 75. Limit of section. Aggrieved person. See above, p. 41. COMMENTARY ON 32ND SECTION. \_Chap, III. against any particular person, and which would not be by the public understood to apply to any particular person, might not be within the 32nd section at all By Day, J., in Willoughby y. Taylor [x), “The section, generally, must be taken as intended to apply not to all cases of threats but to cases of threats where there is some colour or foundation for the threat. I do not know that I can put it much better than that. I have not time to consider expressions at present, but that conveys generally what I mean that there must be some colour or founda- tion for the suggestion of an actual infringement or some colour or foundation of a right to maintain an action — and such would be the more correct way of putting it — there must be some pretence for suggesting that an action might be brought.” any other person The person threatened is not necessarily the person to whom the intimation is addressed. An intimation does not cease to be a threat because it is addressed to a third party [y). And it seems to be the better opinion that the party threatened need not be charged with actual infringement (z). with any legal proceedings or liability The reference in the threat complained of to legal proceedings or liability may be quite vague. “All parties are warned not to infringe these rights ” was held sufficient in Johnson v. Edge (a). in respect of any alleged use, sale, or purchase of the invention It would seem that these words limit the scope of the section, and that threats not founded upon an “alleged use, sale, or pur- chase,” or perhaps upon an ‘ ‘ alleged intended use, sale, or purchase,” are not contemplated (6). any person or persons aggrieved thereby A person is aggrieved who shows that the threats complained of (u) (1892) 2 Ch. 12. (z) 11 R. P. C. 53. (y) Walker v. Clarke, 4 R. P. C. 114; Skinner Y. Shew, (1893) 1 Ch. 423. {z) Johnson v. Edge, (1892) 2 Ch. 9, 12. {a) (1892) 2 Ch. 2. (b) Challender v. Royle, 36 Ch. D. 440, 441 ; Johnson v. Edge, (1892) 2 Ch. 12; Willoughby Y. Taylor, 11 R. P. C. 53. But see Barrett v. Bay, 43 Ch. D. 445; and above, p. 75. 85 Chap, III.] AGGRIEVED PERSON — INJUNCTION. interfere with his business operations, and prevent them from being so effectively conducted as they otherwise would be (c). The patentee of a rival machine would necessarily be a person aggrieved within the meaning of the section (cf). With reference to the nature of the grievance contemplated by the statute, see above, p. 75. A corporation can be an aggrieved person within this section (e). The “person aggrieved” is not necessarily the person to whom the threat is addressed (/), nor, apparently, the person whom the threatening party intends to attack [(j). But if a threatened action for infringement is commenced and prosecuted with due diligence after such threat, there is no ground upon which an action under sect. 32 in respect of such threat can subsequently be commenced at all. To put it in another way, if a threat to bring an action for infringement is followed up by the tond fide commencement and prosecution with due diligence of the threatened action, there is no “person aggrieved” by the threat, and therefore no person who can bring an action rmder sect. 32 [h). may bring an action against him This has been held to be a new cause of action. The object of the enactment was to give an action for damages where there was not one before. Such is the dictum of Bindley, L. J., in Skinner v. Shew {%). And the same thing has been said in many other cases. But it must be borne in mind that in none of these cases had the fourth section of the Statute of Monopolies been brought to the notice of the Court. and may obtain an injunction against the continuance of such threats Interlocutory Injunction . — An interlocutory injunction may be obtained, but it must be upon notice ; it is not a case for ex parte application {k). But in a case in which solicitors, the agents of foreign patentees, had issued threats and had been made co-defen- dants and served with notice of motion, the Court allowed the [c) Kensington, ^c. Co. v. Lane- Fox, ^c. Co., (1891) 2 Ch. 577; Challender v. Boyle, 36 Ch. D. 434, 442. {d) Per Cotton, L. J., in Chal- lender v. Boyle, 36 Ch. D. 439. ie) DriMeld, &c. Co. v. Waterloo Co.'zi Ch. D. 642. (/) Walker v. Clarke, 4 R. P. C. 114. [g] Skinner v. Berry, 11 R. P. C. 411. (A) Barrett v. Bay, 43 Ch. D. 447. {%) (1893) 1 Ch. 420. (k) Wilson V. Walter E. Church Eng. Co., Limited, 2 R. P. C. 175. Rival patentee. Corporation. Third party. See above, p. 84. When no aggrieved person. See below, p. 94. New cause of action. See above, p. 76. Interlocutory injunction. Proceeding ex parte. 86 Interlocutory injunction. Evidence. Scope of the inquiry. Balance of convenience. Discretion, how exercised COMMENTARY ON 32ND SECTION. f Cha]p. III. aggrieved party to move ex parte against the foreign principals, and to have an interlocutory injunction against them and their agents, the order being made in particular against the co- defendants as agents of the principal defendants. But in that case the applicant was put under terms to accept short notice of motion by either de- fendant to dissolve the injunction (Z). The applicant upon motion for an interlocutory injunction must make out a case of non-infringement (m), or alternatively a primd facie case of invalidity of the patent so as to make it appear pro- bable that at the hearing of the action he will get a decree in his favour. The Court ought not on an interlocutory injunction to attempt finally to decide the question whether the act complained of is an infringement, or (if the question of validity is raised) whether the patent is a valid one or not ; yet it ought to be satisfied that on one or both of those two points the plaintiff in the action has made out a primd facie case. An injunction ought to be granted only on a case made out entitling the plaintiff to that par- ticular remedy, and not upon a mere consideration of the balance of convenience or because it cannot do the defendant any harm [n). The principle laid down in Walker v. Clarke [o), if it imports that the Court has only to look at the balance of convenience, and need not be satisfied that a primd facie case for relief upon the merits has been made out by the applicant, must be considered to have been definitely disapproved by the Court of Appeal in Challender v. Boyle [uhi supra) {p). The Court exercises a discretion in granting or withholding the interlocutory injunction {q). In .Barnett & Foster v. Barrett'' s, &c., Co., Limited (r), the earliest reported case under the statute, it was ordered that the motion should stand over till after the trial of the infringement action, liberty being given to apply. In Kurtz v. Spence (s) no order was made on the motion except that the costs of the motion be costs in the action, and that the action be set down at once for trial, directions being at the same time given for expediting the proceedings. In Mackie v. The Solvo Laundry Co., Limited {t) the defendants’ undertaking to prosecute [T) Overton Co. v. Burn and others, 13 R. P. C. 456. (w) Barney v. United Telephone Co., Limited, 28 Ch. D. 397. (w) Challender v. Boyle, 36 Ch. D. 436. (p) 4 R. P. C. 114. {p) See also Societe Anon., ^c. V. TilghmarHs, ^c. Co., 25 Ch. D. 11 . if) Edlin V. Bneumatic Tyre Co., 10 R. P. C. 316. (r) 1 R. P. C. 10. (s) 5 R. P. C. 165. {t) 9 R. P. C. 467. Chap. HI.] INTERLOCUTORY INJUNCTION. 87 the infringement action diligently was accepted and no order for an interim injunction made. It does not at all appear from tlie report what was the state of the evidence in this case but from the sum- mary of the argument it would seem that the question of diligent prosecution was the point chiefly discussed at the hearing of the application. In Douglass v. Phdsch (u) the motion was ordered to stand to the trial, the threats complained of being expressed in ambiguous terms and it being made to appear to the Court upon the defendant’s evidence that upon one construction of the letters which the defendants set up as their case they did not convey a threat and that the defendants did not intend to continue to threaten. The interlocutory injunction was granted in Gulley v. Hart (x) upon Interlocutory evidence of non-infringement ; ^. e. upon the weight of evidence ^anted°^ which in that case was conflicting ; and upon the consideration weight of inter alia that the defendant had refrained from asserting his rights evidence, by an action for infringement. The evidence is summarized in detail in the report. The form of the interlocutory order was carefully considered in Form of Colley V. Hart [x) and settled apparently as follows : — injunctioiT^^ That the defendant be restrained personally or by his servants, See below, agents and workmen from issuing the circular dated the . . . and P- 89- from, by means of circulars, letters or otherwise, threatening any person with legal proceedings or liability in respect of the following {here follows an identifijing reference to the 'plaintiff^ s papers the subject-matter of the dispute) manufactured by the plaintiff till trial or further order. The order in this case was framed upon the report of Challender v. Royle {y). The form in that case is collected from the judgment, in which it is directed that the injunction shall go in terms of the notice of motion (z). The notice of motion is not set out in the report, but it is taken to have been identical in terms with the writ of which the material part of the indorsement is set out on p. 427 of the report. It would indeed appear from a remark made by the Vice- Chancellor and reported in the Patent Office Reports (a) that there was something more in the notice of motion which presumably was therefore not precisely in terms of the writ. In any case the form in Colley v. Hart was settled in view of the report of Challender v. Royle, and with conspicuous care by the judge who heard the application. {u) 13 R. P. C. 62. (x) 6 R. P. C. 21. iy) 36Ch.D.427; 4R.P.C.368. (z) 36 Ch. D. 430. {a) Vol. 4, p. 368. 88 COMMENTARY ON 32ND SECTION. \_Chap. III. Interim injunction granted for a definite period. See Form of Perpetual Injunction, below, p, 89. Evidence in support of application for interim injunction. Application in a patent action. See below, p. 89, as to perpetual injunction. Vacation business (?). Laches. Perpetual injunction. A very carefully elaborated notice of motion for an interim in- junction is set out in the report of Barnett v. Barrett, &c. Co., Limited (c). When an interim injunction is granted for a definite period of time as “ until trial,” its terms should be settled with great pre- cision and, apparently, upon the same principles as those upon which a perpetual injunction is settled [d). The evidence to support the application must show Ou'^rimd facie case either of non -infringement or of invalidity (e). The evidence given in Colley v. Hart — a successful application upon conflicting evidence — is summarized in the report (/), and extracts from the evidence relating to the threats complained of in Challender v. Boyle are given in the official report of that case ((/). The application can be made by the defendant in a patent action by way of motion in the action, and this notwithstanding that pro- ceedings in the action are stayed {h). The application is not proper to be dealt with as vacation busi- ness {sed qucere). The matter is so stated in Colley v. Hart {i), but it is to be observed that this statement occurs in a report of the trial of that case, at which the dictum of the vacation judge could only be obtained ex relatione and it is curious, if that were his view, that he should have required reciprocal undertakings from the parties not to continue the threats until the hearing of the motion thus in effect granting the injunction until that date. The doubt so suggested receives confirmation if reference be made to the earlier report of the hearing of the motion for the interlocutory injunction [k) for, although the report of that proceeding is very full and a detailed reference is made to the order of the vacation judge, there is no allusion in that place to his having ruled the application not to be proper vacation business. Delay in bringing the action may disentitle the plaintiff to an interim injunction (/). The perpetual injunction . — The section contemplates a final (c) 1 R. P. C. 10. See also Fusee Vesta Co. v. Bryant ^ May, 4 R. P. C. 192, and Kensington, ^c. Co. V. Lane-Fox Co., (1891) 2 Ch. 579. {d) Colley^ v. Hart, 6 R. P. C. 22. [e] Societe Anon., v. Tilgh- man's, ^-e. Co., Limited, 25 Ch. D. 11 ; Challender v. Boyle, 36 Ch. D. 436. (/) 6 R. P. C. 19. {g) 4 R. P. C. 366. (A) Fusee Vesta Co. v. Bryant May, Limited, 4 R. P. C. 193. (i) 7 R. P. C. 103. \k) 6 R. P. C. 18. If) Edlin (?• Co. v. Pneumatic Tyre, ^c. Co., 10 R. P. C. 316; Lsaacson V. Thompson, 41 L. J. Ch. 101. 89 Chap, III.] PERPETUAL INJUNCTION. judgment (m). The perpetual injunction will be granted or with- held on very much the same principles, speaking generally, as the interim injunction, since even on the application for an interim injunction the party moving must show a case for this form of relief (w), but the granting of the perpetual injunction is not a matter of discretion but a matter of course if the legal right be proved to exist. Hence delay, that is to say, mere lapse of time apart from acquiescence or other equitable ground of defence, is no bar to the granting of the perpetual. in junction (o). The form of the perpetual injunction should follow as far as possible the language of the section. In Douglass v. Pintsch the order settled after consideration restrained the defendant ‘ ‘ from threatening the plaintiff by circulars, advertisements, or otherwise with any legal proceedings or liability in respect of any manu- facture, use, sale, or purchase of the gas-buoy lanterns referred to in the statement of claim,” the judge refusing to add the words “or his customers ” (^). These words appeared in the form of the injunction asked for in the action, and were omitted out of regard for the words of the section. It may however be submitted, with great respect, that as the section gives the plaintiff an injunction to restrain “ such threats” as he is grieved by, it gives an injunction to restrain threats addressed to customers in a case where such threats constitute the grievance. Reference may in this connection be made to the reported form of the interlocutory injunction [q). A perpetual injunction should be settled with great precision as to its terms, and demands more exactitude in this respect than an injunction made only until further order. This remark applies even to an interim injunction granted for a definite period, as until trial (r). It would seem that a perpetual injunction, unlike an interlocutory injunction (s), cannot be asked for in a patent action by the de- fendant, for the action, if diligently prosecuted, would itself bar the defendant’s right to the injunction; and hence it has been held that an action under this section commenced after the commence- ment of the threatened patent action is ill-conceived and may be dismissed as vexatious (^). The same considerations would of course See above, p. 85 (interim injunction). Not discre- tionary. Delay. Form of perpetual injunction. To be settled with great precision. See above, p. 88. Application by way of counter- claim. See above, p. 88, as to interim injunction. (m) Challender v. Moyle, 36 Ch. D. 434. {n) Ibid. p. 436; and see above, p. 86. (o) Fullwood V. Fullwood, 9 Ch. D. 179 . (p) 13R.P. C. 681. (q) See above, p. 87. (r) Colley v. Part, 6 R. P. C. 22. (s) See above, p. 88. it) Barrett v. Bay, 43 Ch. D. 450 ; Dredge v, Parnell, 13 R. P. C. 394. 90 COMMENTARY ON 32ND SECTION. \Chajp. III. apply to proceedings under this section by -way of counterclaim in a patent action which was being diligently prosecuted. If on the other hand it be not diligently prosecuted and the defendant should seek to take advantage of that fact to avoid the saving clause in the section he will lay himself open to the answer that he is able, if so minded, to press the plaintiff on (it). It is difficult therefore to imagine circumstances in which the defendant in a patent action could effectually put forward a demand for a perpetual injunction under this section. But it has been said that the Court has jurisdiction to deal with such an application if raised by way of counterclaim in a patent action, and in the Fusee Vesta Co. v. Bryant and May, Ltd. [x), Webster, A.-G., offered at the hearing of a motion for an interim injunction, made pending a stay of proceedings, an undertaking to put in a counterclaim to that effect so soon as the stay was with- drawn, which offer was accepted by the Court. It does not appear what became of this proposal in the end. The inj unction may be enforced by attachment but the breach to ground ‘attachment must be very strictly proved [y). and may recover such damage (if any) as may have been sustained thereby Damages, how to be assessed. Remoteness. The proper way to assess damages in these cases is to estimate them upon a fair view — not an exact view — of the facts. It is often not within the bounds of possibility that the exact amount should be ascertained by evidence ( 2 ). But where a case of sub- stantial damage is shown, the difficulty and impossibility of stating the precise ground for assessing the damages at any particular figure is no sufficient reason for giving only a nominal sum. Any other sum than a mere nominal sum must only be a guess, and that kind of guess which it is the daily business of juries to make [a). It is better for the judge at the trial to form an esti- mate of such problematical damages than to send them to a chief clerk to try (&). The damages given must not be too remote. The defendant is liable for his own acts, for the damage caused by his own threat which he has caused to be made known to the persons to whom his circulars, &c., are given; but he is not liable for damage which is [u) Combined Weighing, ^e. Co. v. Automatic Weighing, ^c. Co., 42 Ch. D. 672. (a;) 4 R. P. C. 193. (ji) Bich V. HasJam, 8 R. P. C. 197. (z) Ungar v. Sugg, 9 R. P. C. 118, 119. {a) Ibid. 8 R. P. C. 388. {b) Ibid. 9 R. P. C. 117. 91 Chap, III.] MEASURE OF DAMAGES. the result of a mere rumour which is not his act(c). But the Aggravated amount must be estimated with a view to consequential loss, such as the effect upon the plaintiff’s general business of a reduction in its leading line, as well as to the direct loss. And damages are aggravated by the repetition of threats {d\ Where the question is Measured by what damage the plaintiff has sustained by reason of his failure to profits, obtain a contract which but for the threats he would have secured, the profit which he would have gained if the contract had been carried through is the measure of his damages (e). In Willoughby v. Taijlor[f) the amount of the damage was not Award where proved, but ten guineas was awarded upon the judge’s view of the damage case. In Kurtz v. Spence {g) no special damage was proved, and the loL circumstances were such as to preclude the notion that serious p’orty damage was sustained. Forty shillings was awarded as general shillings, damages. On the other hand in Driffield, &c. Co. v. Waterloo, &c. Co. [h). Nothing, where no special damage was proved, the Court refused to award any sum for damages, and ruled that the fact that the defendants had been put to trouble in looking over their machinery and ob- taining the advice of expert persons as to their patent and its terms, was no such ground of damage {i). And in Skinner v. Inquiry Perry [k) an inquiry as to damages was ordered, but stayed until ordered, the beginning of the ensuing term, for the prupose apparently of giving the defendant an opportunity of commencing an action upon his patent when amended. if the alleged manufacture, use, sale or purchase to which the threats related was not in fact an infringement of any legal rights of the person making such threats The plaintiff may show either non-infringement or invalidity. Validity and therefore the question whether the patent of the person making raisable. the threat is a valid patent must come into consideration if the plaintiff in the action seeks to have it considered, because if the patent is invalid there cannot be any act done in infringement of a legal right of the patentee [1). The contrary doctrine originally laid down in Kurtz y. Spence {m) that only non -infringement and not [c) TJngar v. Sugg, 9 R. P. C. 118. [d) Ibid. 8 R. P. C. 389. [e) Skinner Co. v. Shew, (1894) 2 Ch. 597. (/) 11 R. P. C. 55. {g) 5 R. P. C. 177, 184. (h) 31 Ch. D. 644. (i) 3 R. P. C. 48. (k) 10 R. P. C. 9. (/) Challender v. Royle, 36 Ch. D. 435, 443 ; Kurtz v. Spence, 36 Ch. D. 774. (m) 33 Ch. D. 584. 92 COMMENTARY ON 32ND SECTION. \Chap, III. Raisable in reply. Particulars of objections. Particulars of breaches. The right to begin. See below, p. 136. validity could be raised in this action has been expressly overruled. The question of validity may in a proper case be raised by reply (o) but it is conceived that it would be an abuse of the right of reply to suppress the issue of validity in the statement of claim and raise it de novo in the reply, since this might well be held to amount to raising a new case(p), or to pleading a new ground of claim ( 5 -). In Dowson v. DrosopJiore, cited above, the defendant pleaded validity in the defence and the issue was taken in reply by way of traverse thus bringing this case within the express terms of the decision in Hall v. Eve ( 0 ). The section makes no provision for the delivery of particulars of objections in a threats action even if the validity of the patent be brought into question and it has been said that in such an action the plaintiff must begin (r). This was indeed one of the grounds upon which it was at first thought that the issue of validity could not be raised in such an action, for it is plain that under such arrangements very important safeguards which the legislature has considered necessary for the protection of patent rights would be wanting (r). But apart from express enactment on the point, par- ticulars may in all cases be ordered under the rules of Court (s), and it may now be considered to be an established practice that if the issues of validity and infringement are raised in a threats action particulars of obj ections and particulars of breaches will be ordered as in a patent action [t). Whether plaintiff or defendant shall have the right to begin at the trial must of course depend entirely upon the state of the pleadings. The issues upon the plaintiff are, speaking generally, three, namely, ( 1 ) The threats, ( 2 ) Non-infringement or invalidity and (3) Damages. With regard to the threats it is not generally difiicult so to shape the case as to discharge the plaintiff from the onus of proof. The facts as to the threats are not usually really in dispute, the only question debated being whether an admitted communication is or is not a threat in contemplation of law. Then with regard to damages, the proof of these, if substantial, is generally sent to a referee (chief clerk or other) to try and if not ( 0 ) Hall V. Eve^ 4 Ch. D. 341 ; Eowson, Taylor ^ Co. v. JDrosopTiore Co.^ Limited, 12 R. P. C. 100. {p) Kingston v. Corker, 29 L. R. Ir. 364. {q) R. S. C., Ord. XIX. r. 16. (r) Kurtz v. Spence, 33 Ch. D. 583. [s) R. S. C., Ord. XIX. r. 7. (/) Kurtz V. Spence, 36 Ch. D. 774 , 776 ; JJnion Electrical, ^c. Co. V. Electrical Power Storage Co., 38 Ch. D. 327, 329 ; Law v. Ashworth, 7 R. P. C. 88 ; Lowson v. Droso- phore, 11 R. P. C. 655; 12 R. P. C. 101. DAMAGES. 93 Chajp, III.] substantial nG6d not b© givon at all (w). In any cas© tb© burd©n of proving damagos do©s not alon© giv© th© right to b©gin (x). With rogard to th© oth©r issu©s, r©lative to non-infring©m©nt, it s©©ms to b© th© prop©r cours© to allow th© d©f©ndant to undortak© th©m in substanc© substituting th© formal ©quivalonts of validity and in- fring©m©nt. And this also may now b© r©gard©d as an ©stablish©d practic©(y). Th© r©port of CramptouY. The Patents Investment Co., Limited, do©s not mak© it app©ar how th© qu©stion of damagos was doalt with th©r©, or in what position as to that point th© plaintiff was loft at th© oponing of th© cas© by th© dofondants. Mr. Eogor Wallac©, who appoarod for th© defondants in that action and opened th© case, tolls m© — but speaking from recollection and therefore under some reserve — that his impression is that a sum was agreed between th© parties for th© amount of damages if any should be recoverable. Th© attitude which th© Courts have adopted on this question of th© proof of damages in threats actions will greatly facilitate such arrangements between parties in the future (a). If the patent be invalid, although the defect be curable by Invalid amendment of the specification, the patentee cannot possibly justify P^-tent. his threats, and therefore he may be restrained from threatening pending proceedings to amend (a) ; for if the patent is invalid there cannot be an act done in infringement of a legal right of the patentee (ft). Other relief. It seems to have been thought that the analogy Certificate to a patent action might be pushed to the extent of giving a cer- under sects, tificate that particulars were reasonable under sect. 29 of the Patent Act, 1883, and that validity came in question under sect. 31. Such a certificate was given “ without prejudice to the validity of it if it should come into operation ” in Crumpton v. The Patents Investment Co., Limited (^c). It was refused in v. Spence {d). A certificate that particulars of objections were reasonable was granted apparently in Willoughly v. Taylor (e), but the report is ambiguous, and perhaps means only that certain costs were given. {u) Willoughby v. Taylor, HE, P. C. 55 ; Kurtz v. Spence, 5 E. P. C. 177 ; and see above, p. 90. {x) Bedell v. Russel, Ev- & M. 294. (y) Kurtz V. Spence, 36 Ch. D. 774, 776; Crumpton Patents In- vestment Co., Limited, 5 E. P. C. 391. (z) See above, p. 90. (fl) Fusee Vesta Co. v. Bryant May, Limited, 4 E. P, C. 193; Skinner v. Shew, (1893) 1 Ch. 419.’ [h] Challender v. Royle, 36 Ch. D. 435 (c) 5 E. P. C. 404. {d) 5 E. P. C. 184. {e) 11 E. P. C. 65. 94 Declaration of invalidity. King^ Brown ^ Co. V. Anglo- Amer. No grievance after action for infringe- ment brought. See above, p. 85. Must be honest action. Must test validity or infringement. COMMENTARY ON 32ND SECTION. III. In Herrhurger, Schwander & Cie. v. Squire {g), a declaration that the patent relied upon was invalid was part of the relief originally asked, but was abandoned after discussion at the trial by Willis, Q.C. A declaration of invalidity was made in King, Brown & Co. V. Anglo-American Brush Cor][>.[h), which is stated in the head- note to have been an action for threats. But at p. 416 of the report it is described as an action for revocation, and this from the whole report of the case and judgment appears to be the correct description. The reference to threats in the headnote is almost certainly an error. Provided that this section shall npt apply if the person making such threats with due diligence commences and prosecutes an action for infringement of his patent If a case comes within this proviso it must be dealt with as if the section did not exist, that is to say it must be dealt with under the old law (i) ; and accordingly, if a threatened action for in- fringement is commenced and prosecuted with due diligence after such threat, there is no ground upon which an action under this section in respect of such threat can subsequently be commenced at all ; there is no “ person aggrieved” by the threat by force of the section [k). The action contemplated in this proviso is an honest not a collu- sive action [1). It must be brought to test the validity of the patent or the fact of infringement, whichever may be in question (/). If the action does this in effect it satisfies the proviso and need not be in the ordinary form of a patent action at all. Thus in Barrett v. Day (m) the defendant had brought an action in pursuance of his threat against F. — a licensee — for royalties, and an injunction to restrain the manufacture save under the licence. Alleged by way of defence that what he was manufacturing was not within the patent right at all and therefore not within the licence. It was held that this was an action for the infringement of his patent within the section. Hence the fact that a defendant is estopped {g) 5 R. P. C. 595. {h) 6 R. P. C. 414. (i) Challender v. Royle, 36 Ch. D, 434 ; Brauer v. Sharp, 3 R. P. C. 196. (^) Barrett v. Bay, 43 Ch. D. 447 ; Eng. and Amer. Machinery Co. V. Gare Machinery Co., 11 R. P. C. 631. (l) Challender v. Royle, 36 Ch. D. 438. (m) 43 Ch. D. 446. DUE DILIGENCE. 95 Chap. III.] from calling validity in question does not take the action out of the proviso (w). An action duly commenced and prosecuted, even though unsuc- Unsuccessful cessful or discontinued upon a well-advised view that it will pro- action, bably fail if prosecuted to a result, is available to oust the statutable right of action (o). But the action to be available to oust the section must be brought Must be in in pursuance of the threat, and therefore against the person or any pursuance of of the persons to whom the threats have been made in respect of the act to which the threat referred, though not necessarily against the aggrieved person (p). It must also relate to all the patents, if Must cover more than one, on which the defendant is making his threats (<2). whole An action by a third party cannot oust the statute. In lu nsing- ton and Knightsbridge Electric Lighting Co. v. Lane-Fox Electrical Co. the defendants were not the legal owners of the patent in respect of which the threats were made, but an infringement action had been commenced by the patentee who was a trustee of the patent right for the defendant company. Held that as the damages if any in the threats action would be recoverable not against the trustee but against the company itself — a company with 100/. paid up capital — the trustee’s action could not be considered sufficient to satisfy the proviso and an interim injunction was granted (r). The action must be commenced and prosecuted with due dili- Due diligence, gence. Due diligence in commencing must be determined with ^ ^ reference to the date at which the threat was issued (s). But it is action p 96 not possible to fix any definite limit of time within which such an action must be brought. Circumstances can easily be imagined in which the action would have been commenced in due time, although the threats might have continued for a space of three years (/). The Three months’ interval between March and June is not an unreasonable time for a man to take to consider whether he should bring an action in respect of a supposed infringement of his patent (it). But an un- {n) Barrett v. Day, 43 Ch. D. 448. ( 0 ) Colley V. Hart, 44 Ch. D. 189 ; Eng. and Amer. Machinery Co. V. G are Machinery Co., 11 B. B. C. 632. {p) Challender v. Boyle, 36 Ch. D. 439, 442 ; Eerrhurger et Cie v. Squire, 5 B. P. C. 594 ; Combined, %c. Co. V. Automatic, ^c. Co., 42 Ch. D. 670. {q) Dowson, Taylor ^ Co. v. Bro- sophore, 12 B. P. C. 98. (r) (1891) 2 Ch. 578. (s) Challender v. Boyle, 4 B. P. C. 376. It is worthy of note that this point was mentioned obiter by Cotton, L. J., at the conclusion of the case, and is omitted from the Law' Beports. (t) Colley V. Hart, 44 Ch. D. 186 ; Combined Weighing Co. v. Automatic, %c. Co., 42 Ch. D. 672. (u) Challender v. Boyle, 36 Ch. D. 437. 96 Twelve months’ delay. Awaiting" threats action. Prosecution with due diligence. Discontinued action. Comparative merits of parties. Sundry points of practice. Pleading the statute. See pp. 52, 141. COMMENTARY ON 32ND SECTION. [_Chap. III. explained delay of twelve months in commencing the action is not due diligence (cc). As a general rule a patentee would not be guilty of undue delay if, with a view to minimizing the cost of litigation, he waited to see whether he could combine the two causes of action in one action, and bring his own action for infringement by way of counterclaim (y). The action must not only be commenced but it must also be prosecuted with due diligence. This condition was satisfied in the action brought by the defendant in CoUey v. Hart ( 2 ), although that action had been discontinued. But in Crampton v. The Patents Investment Co., Ltd. [a) it was held that an action discontinued by consent had not been prosecuted with due diligence, and in Com- bined Weighing, &g. Co. v. Automatic Weighing, &c. Co. (6) the Court held that, although the plaintiffs in the infringement action — defendants in this — had delayed setting the infringement action down, and might with propriety have taken a somewhat different course from what they did take as regards procedure, still it would not be right to allow the defendants in that action — plaintiffs in this — who had themselves been in fault as regards their particulars — to take advantage of a few days’ delay in setting down the action for trial. Held accordingly that the infringement action had been prosecuted with due diligence for the purposes of the section. Points of practice . — It is not proposed in this place to deal systematically with the practice in threats actions, and indeed questions of practice are not strictly germane to the subject of the present commentary, which is concerned with the remedies given rather than with the mode of enforcing them. * But as many points of practice have been incidentally noticed in the foregoing pages, and will be found in their appropriate context, it seems proper to enumerate here a few outstanding points which are important chiefly as having been made the subject-matter of express decisions or judicial dicta, but which cannot well be relegated to any context in these notes. Pleading the statute . — A cause of action may be taken to have arisen under the statute although not expressly so pleaded. Herrhurger, Schiuander et Cie v. 8quire was dealt with on that footing (c), and all necessary amendment was ordered to be made at the trial. But it would seem that in that case the statute, although not pleaded in the statement of claim, was pleaded to in {x) Herrhurger, Schwander et Cie (z) 44 Ch. D. 189. V. Squire, 5 R. P. C. 595. {a) 5 R. P. C. 393. {y) Colley v. Hart, 44 Ch. D. \b) 42 Ch. D. 673. 188. {c) 5 R. P. C. 589. PKACTICE. 97 Chap, III.] tlie defen^’e {d). As to the mode of pleading a statute, see below (p. 141). The infringement action need not be brought upon a new writ, but may be raised by way of counterclaim (e). The question whether there has been such a threat as the statute contemplates is one which may sometimes be tried separately without going into the rest of the case, and it should be considered by those responsible for the conduct of any given case whether this is not a proper course to follow ; that is to say, whether the ques- tion cannot be neatly and simply raised as a separate issue (/). Where separate actions are brought upon the threats and the patent, the proper course is for the parties to come to an agreement for the purpose of saving double costs, and in such a case the patentee ought to agree to a stay of the threats action pending the trial of the infringement action, in order that the former may be kept alive for the benefit of the plaintiff in that action if the patentee should fail of establishing his case upon infringement {g). Or the two actions may be set down for trial together [h). Where the threats are alleged to have been uttered by the agents of the defendant, the plaintiff may be ordered to give, by way of particulars, the names of the agents {i). The thirty-second section does not apply to threats issued in respect of the alleged infringement of a trade mark {h). It has been said that the patentee need not apply in a threats action for liberty to amend his specification pending the action (?), but in the case cited the question was not simply whether leave was necessary, but leave having been given in one action whether sup- plementary leave was necessary in another, and that a threats action. In those circumstances it was held that no such further leave was necessary. The question whether a threats action is “ a legal proceeding in relation to a patent” within the eighteenth section of the Patents Act, 1883, is left doubtful. Infringement action by way of counter- claim. Threat or no threat a sepa- rate issue. See below, p. 146. Agreement to save double costs. Setting down together. Particulars of agents. Trade mark. Leave to amend, whether necessary in a threats action. {d) 5 R. P. C. 596. (e) Herrburger, Schwander et Cie v. Squire, 5 P. P. 0. 585 ; Colley v. Hart, 44 Ch. D. 188. if) Kurtz V. Spence, 5 P. P. C. 170. (y) Combined, ^c. Co. v. Auto- matic, ^c. Co., 42 Ch. D, 674; The Same v. The Same, 6 P. P. C. 371 ; Edlin V. Pneumatic Tyre, ^c.. Limi- ted, 10 P. P. C. 316. {h) Sharp V. Brauer, Brauer v. Sharp, 3 P. P. C. 193 ; Barrett v. Bay, Bay v. Foster, 43 Ch. D. 437 ; Colley V. Hart, Hart v. Colley, 44 Ch. D. 179, 193. (i) Bowson, Taylor ^ Co. v. Bro- sophore, 11 P. P. C. 537. {k) Colley v. Hart, 6 P. P. C. 20 . {T) In the Matter of Hall and others, 5 P. P. C. 307. G. H ( 98 ) See above, p. 19. CHAPTEE lY. COMPULSORY LICENCES. Patents Act, Sect. 22. The Legislature lias made provision {a) against the mis- chief of obstruction to industry hy reason of patents, by empowering the Board of Trade to order a patentee in certain specified cases to grant licences upon terms, as to royalties and otherwise, to he settled hy the Board, and the Patents Eules, 1890, have provided machinery for giving efiect to the statute. But this remedy seems to he in a fair way to divide with the fourth section of the Statute of Monopolies the distinction of remaining for an indefinite period of time a remedy in posse. There is at present no record in the hooks of any appli- cation to the Board of Trade to exercise these powers {b). But it can hardly he doubted that this is the result merely of oversight, for when those powers come to be examined it will he seen that, properly exercised, they would serve an exceedingly useful purpose. The circumstances which call for their exercise arise in one way or another out of the failure of the patentee to turn his invention to the best account, the best account being understood to he a result which yields equal benefit to the patentee and the public at large. Thus if the patent is not worked at all, or is worked insufficiently, or prevents the advantageous work- ing of another invention, in any of these cases the Board of Trade may be invoked by a third party. [a) Patents Act, 1883 (46 & 47 (b) But it is said that three such Viet. c. 57), s. 22. applications have been made. Chap, IV.] OBSTRUCTIVE PATENTS. 99 In practice one constantly hears of blocking patents Obstructive which have to be bought up by the undertakers of new enterprises for the mere purpose of getting rid of them. Another very common case is that in which the inventor of an improvement is deterred from the attempt to bring his invention into use by the apprehension that if he suc- ceeds he will only become the catspaw of some earlier patentee who chances to have a controlling grant. In all such cases the section, upon the face of it, provides an available remedy. There is another case in which it would seem that this Predaceous remedy would be very useful. It has happened many times that the owner of a patent has slept upon his rights until some enterprising neighbour has created a remunerative business by utilizing the patented invention, and when the patentee sees a valuable capture within his reach, he for the first time concerns himself with the working of the invention. Proceedings of this sort cause great uneasiness to a very highly meritorious class in the community. The people who are best fitted by habit and circumstance to carry out new undertakings are often the victims of para- lyzing misgivings on this score. The terror of a patent action, so vividly described by Bowen, L. J., in the case of Skinner v. Shew (c), falls upon them, and they argue that if they are to be exposed to an injunction at the instance of the patentee, all their labour and the capital they may have embarked in the undertaking will be thrown away. Against apprehensions of that sort this section was Bearing on clearly intended to provide a remedy ; in fact there would oflnjimction. seem to be no reason, with such a section as this upon the See p. 151. statute book, why any honestly-conducted enterprise should ever be ruined by an injunction at the instance of a patentee. It is somewhat surprising that it should not have become by this time almost a matter of comnaon form in any such patent action for the defendant to meet the (c) (1893) 1 Ch. 424. See above p. 11. H 2 100 COMPULSORY LICENCES. [^Ckap. IV. Form of petition. application for an injunction by a petition to the Board of Trade under the Patents Act. It would seem as if in this way he could make himself secure against anything in the nature of obstructive or oppressive action by a patentee. But the fact remains, whatever the reason may be, that as yet nobody has tried the effect of this strategy, and therefore at the present time nobody can tell what the result of such an application would be (c). It would seem therefore that commentary upon this section can only have at the present time an academic interest but if that consideration were sufficient to pre- clude the treatment of the topic in this place this book would never have been written for the objection upon practical grounds has much more weight in reference to the Statute of Monopolies than it has to the Patents Act of 1883 ; unless indeed it is to be inferred that the complete neglect of a statute of so recent date must be accounted conclusive proof of its complete ineptitude. But that is an argument the answer to which may be deferred until the argument itself is put forward. 22. If on the petition of any person interested The petition is to be addressed to the Board of Trade and is to show clearly — (1) The nature of the petitioner’s interest, (2) The ground or grounds upon which he claims to be entitled to relief, “and shall state in detail,” Procedure thereunder. (3) The circumstances of the case, (4) The terms upon which he asks that an order may be made, (5) The purport of such order (d). There are of course no precedents for such a petition, but the general form of the document is sketched in the Patent Rules, 1890. Form H. 1. The petition is intituled in the matter of the Patents, Designs and Trade Marks Acts, 1883 to 1888 — Patents — and in the matter of the Patent in question. It embodies a statement of the peti- tioner’s case setting out the grounds of the application and concludes (c) See below, p. 153. (d) P. R. 1890, r. 60. 101 Chap, IV.] PROCEEDINGS AT BOARD OF TRADE. witli a prayer in appropriate terms. The published form does not comprise any intimation that the applicant is prepared to adduce evidence in support of his case, and desires an appointment and directions for the purpose of submitting his evidence but it is conceived that a paragraph to that effect may properly be added. As to subsequent proceedings the Patents Rules, 1890, may be consulted (e). The circumstances of the case which have to be detailed are Substance the circumstances which tend to show that one or other of the conditions (a), (b), and (c) enumerated in the section has arisen, and must in every case show that the patentee is in fault and has failed to grant licences upon reasonable terms. These are of course part of the grounds upon which the petitioner claims to be entitled to relief. The terms upon which he asks that “an order maybe made” will relate probably to security for payment and such like collateral matters. The terms as to amount of royalties and conditions under which the invention is to be used and the like will be included in the order itself. The purport of such order would be most conveniently expressed Draft order, by preparing a draft of the proposed order and incorporating it in the petition. The practice upon motions of adding a clause to indicate that the award need not follow with exactitude all the terms of the proposed draft should also be followed. acy person interested These words must of course be construed with reference to the Who is a contingencies enumerated in sub-sections (a), (b), and (c) of this clause. It would seem therefore that any person bond fide propos- ing to work the invention in the United Eingdom would be a person interested under sub-sections (a) and (b) and that any person liable to be attacked as an infringer would be a person interested under sub-section (c). Although there are no cases exactly in point, a general reference may be made in this connection to the decisions as to who is an aggrieved person under section 32 of the Act (/), and who is a person entitled to oppose the grant of a patent under section 1 1 of the Patents Act. {e) See P. R. 1890, rr. 60—66 ; and below, App. III. p. 247. (/) See above, p. 84. 102 COMPULSORY LICENCES. \_Chap, IV. it is proved to the Board of Trade that by reason of the default of a patentee to grant licences on reasonable terms The peti- tioner’s case. Case of a patent ex- clusively licensed. It is worth noting here that the expression used is perfectly general. The petitioner has to show three things : — (1) The patentee’s failure to grant licences on reasonable terms; (2) That he ought to have granted them, and that therefore his not having granted them puts him in default ; (3) That one or other of the consequences about to be enume- rated has resulted from this default. It would seem then that if a case of this sort is proved it would be no answer for the patentee to say that he preferred to keep the working of his invention in his own hands and refused on prin- ciple to grant licences. His arbitrary refusal could not justify his default. If that be so, a curious and very difficult question might arise if it were shown that the patentee had parted with his liberty by granting an exclusive licence to licensees who were not woiking the invention to public advantage. It is not possible to say what view the Board of Trade might take of such a position, but if it were shown either that the patentee could not obey an order made by the Board or that the Board refrained from making an order which ought to be made, then it is conceived that a case would arise for the repeal of the patent upon the ground that it was hurtful to trade and generally inconvenient () See the debate in the Com- mons on Monopolies, on the 20th Nov. 1601; D’Ewes, 644; 1 Pari. Hist. 924 ; see also D’Ewes, 652. G. G) Watson V. Holliday^ 20 Ch. D. 782 . (r) Pememb. 223. (s) Rememb. 98. K 130 THE PATENT. \_Chap. V. Defeasance. practical interest, but it seems to be reasonably certain that in earlier times proceedings before the Privy Council afforded an effective mode of cancelling a mischievous patent, and there is no reason in principle why this condition should not now be enforced against a patentee if need were. Queen Elizabeth recalled many of her patents apparently in this way (<). The authorities as to what amounts to prejudice or inconvenience to the public are very meagre, but it would seem from the judgment of Lord Eldon in the case of the Universities of Oxford and Cam- hridge v. Richardson {u) that a valid grant may be rendered noxious in this way by the conduct of the patentee if he abuses his privilege. “If,” said the Chancellor in that case, “an unreasonable price should be put upon the patented books the patents themselves would be put in considerable hazard.” Provided also that if the said patentee shall not pay all fees by law required to be paid in respect of the grant of these letters patent, or in respect of any matter relat- ing thereto at the time or times and in manner for the time being by law provided, and also if the said patentee shall not supply or cause to be supplied for our service all such articles of the said invention as may be required by the officers or commissioners administering any department of our service in such manner, at such times, and at and upon such reasonable prices and terms as shall be settled in manner for the time being by law provided, then and in any other of the said cases these our letters patent and all privileges and advan- tages whatever hereby granted shall determine and become void notwithstanding anything hereinbefore contained • Formerly a rent was reserved in the patent. This is now replaced by statutable renewal fees. See below, This and the preceding proviso should not perhaps be regarded p. 257. merely in the light of defeasances. They are more, for they are intimations to the patentee, of which it behoves him to take heed, of the duties which he owes to the public in respect of his grant, and from this point of view the vagueness of the language used is no defect. (^) D’Ewes, 652 ; see also the below, p. 220. account of Matthey’s patent in [ii] 6 Ves. 712. Darcy v. Allin, Noy, 183, and LICENCES. 131 Chap, V.] Provided also that nothing herein contained shall prevent the granting of licences in such manner and for such considerations as they may by law be granted See in connection with this clause the commentary upon the Licence, clause which provides that a licence must be in writing and under See above, seal (a;). P- A licence may be granted — in the vague sense of given — by an agreement in writing not under seal acted upon by the parties {y ) ; by the act of a licensee who is empowered to assign the licence ( 2 ) ; by parol (a) ; by an unregistered deed (b) ; by the sale of a patented article (c) ; but such a licence may be limited to a particular country (d) ; by an executory agreement for a licence (e) ; by an unstamped writing (/). and lastly, we do by these presents for us, our heirs and successors, grant unto the said patentee that these our letters patent shall be construed in the most beneficial sense for the advantage of the said patentee. This clause in its present form is apparently mere surplusage, for GTrant of it is settled law that a patent is to he interpreted like other wi’itten favourable documents fairly between the parties and without bias towards a harsh construction or straining after a benignant one (gf). But in its present form it is a vestige of a proviso which formerly ran in these terms. “And lastly, we do by these presents for us, our heirs and successors, grant unto to the said J. G., his executors, administrators, and assigns, that these our letters patent shall be taken, construed and adjudged in the most favourable and bene- ficial sense for the best advantage of the said J. G., his executors, administrators, and assigns, as well in all our Courts of Eecord as elsewhere, and by all and singular the ofiicers and ministers what- (x) Above, p. 125. M Chanter Y. Dewhurst, 12 M. & W. 823. (z) Bower v. Hodges^ 22 L. J. C. P. 198. (ff) Crossley v. Dixon, 10 H. L. Cas. 308. {b) Eassall v. Wright, 40 L. J. Ch. 146. {c) Betts V. Wilmott, 6 Ch. 239. \d) Soc. Anon. v. Tilghman's Bat. ^e. Co., 25 Ch. D. 11. (e) Postcard Autom. Supply Co. v. Samuel, 6 R. P. C. 562. (/) Chanter v. Johnson, 14 M. & W. 408. {g) Neilson v. Harford, 1 W. P. C. 341 ; see above, p. 115. k2 132 the patent. [_Chap. v. Tlie seal. See above, p. 27. soever of us, our heirs and successors, in that part of our said United Kingdom of Great Britain and Ireland called England, our Dominion of Wales, and town of Berwick-upon-Tweed, . . . and amongst all and every the subjects of us, our heirs and successors, whatsoever and wheresoever, notwithstanding the not, full, and certain describing the nature or quality of the said invention, or of the materials thereunto conducing and belonging.” The point of this saving was that as the nature of the invention was only very incompletely represented in the patent after the passing of the Act (7i) which provided for the enrolment of specifications, being indeed only expressed by the title of the invention, questions might arise as to how much was covered by the grant. The proviso was intended to secure the patentee against any attempt to cut down his rights by pressing the necessarily elastic language of the title to his disadvantage. The proviso has now disappeared, but the patentee’s rights stand upon the more assured foundation of a rule of law. The changes introduced in modern times into the phraseology of the grant have given additional force to the comment extorted from Parke, B., fifty years ago that “ it is difficult to give effect to aU the words of a patent ” (f). In witness, &c. The deed is now sealed with the seal of the Patent Office, which gives it the same validity as if sealed with the great seal of the United Kingdom (^). (A) 15 & 16 Viet. c. 83, s. 6, and W. 826. see Sch. form of patent. (A) Patent Act, 1883 (46 & 47 (j) Chanter v. I)ewhurst, 12 M. & Viet. c. 57, s. 12 (2)). ( 133 ) OHAPTEE VI. PROCEDURE. In considering the question of proceeding in an action under these various enactments, the first point which presents itself must be what relief can he obtained. The two forms of relief in which a plaintiff is interested are damages and an injunction, and the point comes therefore to this : — What can be recovered by way of damages, and in what circumstances can an injunction he granted ? With regard to damages only it will probably he found that in most cases the Statute of Monopolies gives the ampler remedy («). But this statute makes no express provision for an injunction to issue. This circum- stance would not however, at the present time, he held to preclude the Court from granting an injunction in aid of the right conferred by the statute (^), and there would seem to he no difficulty about concluding that in a proper case the granting of the injunction would he con- sidered to he ‘‘just and convenient” within the meaning of the Judicature Act of 1873 (c). For upon the principle laid down in the Court of Appeal in the case of The N. L. Railway v. The G. JT. Raihvay there is here clearly a legal right capable of being enforced at law indepen- dently of the Judicature Act, and that being so, whatever may have been the, previous practice, the High Court may now interfere by injunction in protection of that right {d). (a) See above, pp. 39 et seq. (c) Jud. Act, 1873, sect. 25, sub- (b) Cooper v. Whittingham, 15 Ch. sect. 8. D. 507 ; Hayward v. E. Lond. (d) 11 Q. B. D. 40. Waterworks Co.y 28 C. D. 147. Relief ob- tainable. Injunction in aid of remedy given by the Statute of Monopolies. See above, p. 18. 134 PROCEDURE. [_Chap, VI. Dicta to the contrary considered. No special damage. Sect. 4 and sect. 32 com- pared. See above, p. 18. Even apart from the Judicature Act it would seem that the Court of Chancery would have interfered in the same way in support of this right, for Lord Eldon has laid it down in Cadell v. Robertson, where the question was whether an injunction could issue in support of the statut- able copyright given by 8 Anne, c. 18, that if a civil remedy is given by statute the party will be entitled to all the benefits known in the common law for the pro- tection of that right in addition to those in the statute (e), and, accordingly, an injunction was granted although not expressly provided for by the Act. It seems then that an injunction can be asked for as well as damages under the Statute of Monopolies, but some appearance of authority for the contrary view may perhaps be drawn from the language of certain recent judgments, such for example as Colley v. IIart{f), where, referring to a threat of legal proceedings under a patent which it was admitted could not be sustained, Mr. Justice North said, “ There is no evidence before me at present that that was published maliciously, and therefore there is no right of action whatever in respect of it unless it is given by the thirty-second section of the Patents Act ” {g). But this and other dicta to the same effect which may be found in the reports must all be read with a reservation of the rights conferred by the Statute of Monopolies which has never on these occasions been brought to the attention of the judges. In most cases then in which actual damage can be shown it will probably be found that the Statute of Mono- polies affords the plaintiff a better remedy than the Patents Act. But a case arises sometimes in which no actual damage can be shown, but the apprehended damage, if threats continue, is sufficiently serious to prompt the aggrieved party to seek his legal remedy. This ease arose {g) See also Bay v. Foster, 7 R. P. C. 58 ; Skinner v. Ferry, 10 R. P. C. 6. {e) 5 Paton, Sc. Ap. 603. (/) 7 R. P. C. 106. 135 Chap, VI.] THE STATUTE^ COMPARED. in The Driffield and East Riding^ ^c. Co. v. Waterloo^ 8^c. Co., and it was decided that the notion of damages did not enter into the cause of action in that instance {h ) , and the same conclusion may he drawn from the language of Lord Justice Smith in Skmner v. Shew that the section imposes an absolute prohibition against a person’s threatening unless the threatener can get himself within either of the two saving clauses at the end of the section (^) . Another case must be considered in which the criterion Threats is not special damage but the position of the parties rela- a^i^efgee tively to one another. Thus a patentee may issue threats against his licensee, and in a case in which a dispute has arisen as to the existence of a licence this is very likely to happen {h) . It does not seem that the Statute of Monopolies would give any remedy in this case, because by the ad- mission of both parties the grant here in question falls within the exception created by the sixth section. But under the thirty-second section of the Patents Act the grievance is proved if the plaintiff establishes non-infringe- ment (/). He may therefore under this section prove his right under the licence to do what is forbidden by the patent, and thereupon recover damages in a case not covered perhaps by the Statute of Monopolies. There being this disparity between the two remedies Joinder in the question naturally arises — Can they be combined in action, one and the same action ? The question is not free from difficulty. It would indeed appear at the first blush that the two causes of action are perfectly fit to be joined. The facts are the same, if actual damage has arisen out of the acts complained of, and the only ground upon which they can be distinguished at all is that the right to sue is given in one case by one statute, in the other case by another. So far therefore there is no inconvenience to be appre- hended from the joinder of the two causes of action, and {h) 3 R. P. C. 48. 444. (i) (1893) 1 Ch. 426. {1) See Patents Act, 1883, sect. {k) Barrett Lay, 32. 136 PROCEDURE. J oinder in one action. See above, p. 92. [_Chap, VI. as the power to join given by the Eules of the Supreme Court to a plaintiff are very large {in ) , it may be presumed that the joinder is always permissible, unless it can be shown in some way to prejudice the fair trial of the action. It is perhaps open to doubt whether or no such prejudice can arise to the defendant from the joinder. Thus a practice has arisen, not founded in any positive law, but eminently convenient of applying to a threats action in which the validity of a patent is brought into discussion the same system of pleading and procedure which applies in an action for infringement or revocation. It commenced with Kurtz v. Spence^ in which the Court of Appeal in granting leave to amend by way of raising the question of validity annexed to that indulgence the condition that the defendants should have the same notice of objections and the same right to begin and to reply that they would have had if they had been plaintiffs bringing an action for infringement {n). It was followed in Crampton v. Patents Investment Co., Ltd., in which an order was made for particulars of in- fringement, and the case was apparently opened by defendant’s counsel {n) . Can the same practice be followed in the case of an action founded on the Statute of Mono- polies ? This, considered as a general proposition, seems very doubtful (o). About the delivery of particulars there need be no difficulty, but about the right to begin and reply difficult questions would probably arise. In the case of a threats action the facts as to the threats are not generally in dispute, and, what is even more to the point, in the cases which have been above cited as in a sense establishing the practice of permitting the patentee to begin at the trial (^n), the facts as to the threats were expressly admitted by the defence, and issue was taken (w) R. S. C., Ord. XVIII. r. 1. vestmmt Co., Limited, 5 R. P. C. (n) Kurtz v. Spence, 36 Ch. D. 391. See above, p. 92. 774, 776; Gramptony. Patents In~ (o) See below, p. 138. JOINDER. 137 Chap. VI.] upon infringement, and although the question of damages was still outstanding, and raised an issue which the plaintiff must support, that alone does not give him the right to begin (jt?). There does not seem to be any reason why the same practice should not be followed in an action founded on the Statute of Monopolies. It is no doubt true that special damage must be proved in this case, but that, as has been shown in the last preceding paragraph, does not determine the right to begin. In other respects the pleadings might apparently be shaped exactly as in a threats action, and the right to begin be thus secured to the defendant. Even if that be not so, it is not evident that the two causes could not be tried together, for the case would in that event not fall within the principle of Warier v. Warier {g ) . In the case cited the difficulty was that one proceeding would commence by a petition, the other by a writ, involv- ing disparity of procedure at every stage of the proceed- ings so that more inconvenience than advantage would in all probability result from the formal joinder. No such difficulty arises in the present case. The issues in both the supposed actions would be raised by substantially the same pleadings, both might go into the same cause list, both would involve the same evidence, and if the positions of the parties should be reversed upon the two proceedings, that is no more than happens in every instance in which, out of one and the same transaction, both claim and counterclaim arise. This last affords perhaps the closest analogy that can be adduced from existing practice to the case under consideration. The right to have the validity of the patent and the fact of infringement estab- lished in the action by a binding decision inier partes is itself a right to a substantial measure of relief, and although it does not appear that the consequential rehef See below, p. 145. Warier v. Warier. (p) Bedell v. Russell, Ry. & M. 294 ; 26 R. R. 750. [q) 15 P. D. 36. 138 PROCEDURE. \Chap. VI. J oinder in one action. of an injunction and damages has ever yet been asked for by way of counterclaim in such an action, there does not seem to be any technical reason why this should not be done. The course indicated in the thirty-second section of the Patents Act of a separate action would generally be so much more convenient in practice to the patentee that the cases are and probably always will be comparatively few under that statute in which the alternative of a cross action would not be preferred. But to the extent of the relief actually sought, which amounts in effect to a declara- tory judgment upon the issues of validity and infringe- ment, the defendant in a threats action who sets up his patent right is in effect a counter-claimant. So far these considerations point to the conclusion that these two causes of action may be joined, but it is necessary to consider whether their joinder will not embarrass the defence by depriving the defendant of the advantage of that escape from the action which he enjoys under sect. 32 upon the condition of bringing an action for the infringe- ment of his patent right. The nature of this escape has been already considered (^), and it is obvious that it would not be available in the case of an action founded on the Statute of Monopolies. But although he could not escape from the action in this way he might apparently set up his cross action by way of defence to the writ so far as it was founded upon the thirty-second section. If so he is not embarrassed by the joinder. A doubt may indeed be suggested upon the language of the judgment in Lynch v. Macdonald (w), in the case of an action brought in the Chancery Division, whether the defendant might not claim to sever the causes of action in order to carry that founded on the Statute of Monopolies into the Queen’s Bench Division {x) and have it tried by a jury. It may for this reason be wise to bring this action in that Division, but on the other hand it is clearly very (a:) But see above, p. 56. (m) 37 Ch. D. 234. d) See above, p. 94. Chap, VI.] JOINDER. 139 desirable that two actions in both of wbicb damages can be given for the same tort should not be independently tried. Perhaps then it may be assumed that the plaintiff can Advantage join these two actions in one writ. What advantage will accrue to him from so doing ? To this question there is an obvious answer. In the first place the threats action affords an useful supplement to the older action because it is maintainable without proof of special damage (y) and may therefore save the plaintiff’s case if his evidence on this point should break down. But this is a comparatively small matter. What is of much greater importance is that the monopoly action cannot be defeated by an in- fringement action independently instituted. If the de- fendant in that case relies upon his patent right he must set it up by way of defence, and if there is a question of infringement to be tried it will probably be better worth his while to raise it in the same than in another proceeding. A case often arises in which the plaintiff in a threats action desires to force the defendant to bring his patent right to trial, but is unable to compel him to come to close quarters by reason of the means of evasion which the Patents Act provides. In such a case the Statute of Monopolies supplies precisely what is wanting. It will be of no advantage to the patentee to get the threats action dismissed on an undertak- ing to prosecute an infringement action if the monopoly action continues and his patent right must be established in that proceeding. In this way perhaps a cure may be found for the anomaly by which under the Patents Act a confessed wrong is left in certain cases without a remedy. The Statement of Claim . — In pleading this cause of action The plaintiff ’s it is necessary to state with precision every fact which seg^above brings the case within the Act ( 2 ). But the Act itself p. 52. being a public general Act need not be set out (a ) , but must be judicially noticed. {y) See above, p. 90. (a) Boyce v. Whitaker^ 1 Doug. (z) Odgers, Pleading (2nd ed.), 62. 97. 140 1. The date. See above, p. 39. 2. The grievance. See above, p. 39. 3. The pre- text. See above, p. 45. PROCEDURE. \_Chap, VI. The conditions to satisfy the fourth section of the Statute of Monopolies are the following : — 1. The grievance must occur ‘‘ after the end of forty days next after the end of the session of Parlia- ment of 1624. That session terminated on the 2nd November, 1624. But it is not now necessary to allege fulfilment of this 'condition, it may be taken for granted (&). 2. The plaintiff must have been hindered, grieved, dis- turbed, or disquieted, or must have endured to have his goods or chattels seized, attached, distrained, taken, carried away or detained. These are alternative grievances. What facts amount to a grievance under these clauses is a question which has been already discussed {c ) . There is no great harm in pointing the allegation by quoting the words of the sec- tion ; thus “ The defendant has hindered the plaintiff by ” such and such acts ; but it must not be forgotten that the acts which amount to the hindrance, grievance, &c., are the material facts. It is not necessary to put a particular complexion on the facts by applying to them the descrip- tive words “ hindrance,” “ grievance,” and so forth, and being unnecessary it is perhaps faulty pleading to do so {d ) . A statement of claim would be utterly bad which, adopting the general language of the statute, should omit to allege the particular facts complained of. 3. The acts complained of must have been performed by occasion or pretext of some monopoly, or of some commission, grant, Kcence, power, liberty, faculty, letters patent, proclamation, inhibition, restraint, warrant of assistance, or other matter or thing tending to the instituting, erecting, strength- ening, furthering or countenancing of any mono- {b) Rex V. Eilderby^ 1 "Wms. (<;) See above, p. 41. Saund. 309b, n. 6. (<;) Odgers, Pleading, cb. ij. PLEADING. 141 Chap, VI.] poly, or any commission, grant, &c., of sole buying, selling, making, working or using of anything within this realm or the dominion of Wales, or of power to dispense with any law, or to compound for statutable forfeitures, or of any grant of the benefit of a forfeiture, &c., due by statute before judgment thereupon had. This is a bewilderingly comprehensive list of torts, but it may for present purposes be restricted to the single case of an act performed by occasion or pretext of a monopoly, or of letters patent tending to a monopoly. It will be seen from the discussion of the word monopoly above, that all patents for sole buying, selling, making or using, tend to institute monopolies, except such as fall within the sixth section of the Statute of Monopolies (e). 4. The action is to be grounded upon the statute, and therefore it must be pleaded in that form, that is gg^ to say, the act complained of must be alleged to be P- 96. contrary to the statute. The language of some of the dicta in which this decision has been embodied seems to point to the doctrine that this depends upon there being a penalty in question. Thus in giving judgment in Lee v. Clarke, Ellenborough, L. C. J., said : I rest on the first ’’ (objection) “ that in an action for a statute penalty by a common informer, as well as in proceedings by indictment or information, it has been invariably holden that the fact must be alleged to be done against the form of the statute ’’ (/). But this is perhaps not a very precise account of the matter. A much more convincing reason is assigned by Lawrance, J., for his con- curring judgment in the same case : ‘‘In the case of indictments to which this bears a close analogy, there is no question but it is so. ( Vide 2 Hawk. P. C. c. 25, f. 116.) The reason of which is that every offence for which a party [e) See above, p. 25. (/) 2 East, 339. 142 PROCEDURE. \_Cha2J, VI. Pleading statute. is indicted is supposed to be prosecuted as an offence at common law, unless the prosecutor by reference to a statute shows that he means to proceed upon it, and without such express reference, if it be no offence at common law, the Court will not look to see if it be an offence by statute” {g). In that case the plaintiff was a common informer, but the rule has been extended also to the case in which an aggrieved party sues for a statutable penalty. Indeed in Fife v. Bousfield it was so strictly applied that a declaration of all the other material facts followed by the words “ whereby and by force of the statute in that case made and provided, an action hath accrued to the plaintiff ” was held bad, and an objection that the offence was not charged as “ contra for mam statuti ” was allowed in arrest of judg- ment {]}) . Probably such extreme strictness would now be held to be excessive, and the earlier doctrine that “ it is necessary in some manner to show that the offence on which you proceed is an offence against the statute ” (^) would find more favour with the Court. This reason is of especial force in a ease like the present where it has been again and again said that no action lies at common law. But it must be borne in mind in this connection that the tendency has been in recent times to relax the strin- gency of the rules of pleading ; and in Serrhurger v. Squire (Jc) an action pleaded as slander of title was treated as an action grounded in sect. 32 of the Patents Act, and all necessary amendments were at the trial directed to be made. The Rules of the Supreme Court provide a particular mode of pleading a statute in certain cases which arise by way of defence (/). There is no similar rule concerning the plead- ing of a statute in the statement of claim and as ground of the action. The recognized formula is to state the facts complained of and conclude the statement with the words {g) 2 East, 340. (t) Lee v. Clarke, 2 East, 342. (A) Fife V. Bousfield, 13 L. J. Q. (A) 6 R. P. C. 589. B. 308. (/) R. S. C., Ord. XXI. r. 19. GENERAL ISSUE. 143 Cha]p. VI.] ‘‘ contrary to the form of the statute of the 21 Jac. I. c. 3.” But it would probably be more convenient for all concerned if this somewhat antique and not very explicit form of ex- pression were replaced by a reference in the margin to the Act and the section of the Act relied upon, as in the case of pleading the general issue by way of defence. 5. The amount of the damages. The defence to this action opens up a somewhat new set of considerations. For this purpose it is not unim- portant to decide whether it is or is not, within the fourth section of the Act for the ease of the subject concern- ing the informations upon penal statutes (m). The autho- rities upon this point have been discussed above (w) , and as they leave the matter in some doubt, it will be assumed that, for the purpose of pleading, the Statute of Monopolies will be considered to be a penal statute. In that case therefore the defendant may plead the general issue, and give in evidence any special matter of defence which might have been specially pleaded. But will it be expedient for him so to do ? In most cases probably not. Of course to plead in this way would greatly simplify the actual pleading, but it would greatly complicate the issues for the Court if it succeeded, and it can hardly be to the ad- vantage of a patentee to have his ease produced in that form. If he does not expressly set up his patent he cannot of course call upon his adversary to allege objections to it, and a patentee who should come into Court to defend his patent against objections of which he had no notice would be in a much worse plight than the attacking party, who although he might not have had notice of the defence would know perfectly well what the defence must be. He may indeed be taken by surprise as a consequence of not having received particulars of breaches, but the facts are as a rule so much better known to the infringer than to the patentee, that this is but a small risk. On the other hand, particulars of objections are indispensable to the 5. Damages. Defence to the action. Pleading the general issue. See above, p. 54. (m) 21 Ja. 1, c. 4. {n) See above, p. 52. 144 PROCEDURE. \_Chap, VI. conduct of the patentee’s case, and if, therefore, he intends to assert his patent right at the trial it must he a matter of capital importance to him to get the pleadings conducted upon the customary lines of a patent action. The only case in which it could he conceivably an object with the patentee to keep the plaintiff in the dark as to his defence is that in which he does not intend to go upon the patent right all, hut can rehut the evidence as to threats or other grievance which is made the subject of the complaint. In that case he might by silence induce his adversary to devote attention to the issue of validity which was destined never to arise and to neglect the preparation of his own case upon the facts. But such astuteness would not in these days find favour with the Courts and it would he very apt to overreach itself. The plaintiff, put upon inquiry by the singular course adopted in the conduct of the defence, would have recourse to interrogatories, and in that way would extract from the party himself the secret which his Futility of ^ pleader had protected. The net result would he that he the expedient, defence refused in the form of plea and would have incurred additional expense to no purpose. If then it he assumed that a defendant is entitled to the benefit of the general issue, it is difficult to conceive any circumstances in which that benefit would he Defence pleaded specially. Admissions. Assuming then that the defence will he specially pleaded, we come upon the question — In what form ? This must, of course, depend upon the circumstances of the case, hut some general considerations would seem to apply to what will probably prove to he the commonest case in which the grievance is a threat of legal proceedings. The first question that will present itself to the pleader’s mind will he. Can I so shape the issues as to secure the right to open ? And in the case of an action upon threats this wiU generally be possible. For in these cases there is not as a rule any serious confiict of evidence as to the threat in question. Doubts may arise as to whether a particular PARTICULARS. 145 VI.] intimation should or should not he classed as a threat, although there is probably much less room for doubt under the Statute of Monopolies than under the Patent Act. But such doubts do not affect the issues and can be See above, properly raised and duly submitted to the Court upon admitted facts. Grenerally therefore there is no good reason for the defendant to deny the facts, and to damages he need not plead (o). When the defendant stands in this position it is easy to mould the issues so as to give him the right to begin. The facts constituting the alleged threat will be expressly admitted, the point of law, if that be thought desirable, will be raised {p), and the substantial defence, the patent right and its infringement, will be set up. There does not seem to be any reason why relief in the form of damages, and an injunction should not be asked by way of counterclaim, and in that case a patent action would be regularly constituted. In such a case probably the Court ^ would direct the delivery of particulars upon the analogy objections. of a patent action under the Act of 1883, and in that way there would come about in the result what it was probably the intention of the Legislature to accomplish by the 32nd section of the Patent Act ; that is to say, the patentee would threaten proceedings only at the peril of having to make good his threats if challenged so to do by the party injured by his threats. If once the issue of fact as to the matter complained of is out of the way, there is no reason why a patent action commenced by way of counterclaim should not be just as easy to conduct and to decide as a patent action commenced by writ of summons. Indeed if the practice followed by Field, J., in Crampton v. The Patents Invest. Co. Ltd. be correct, it would seem that a certificate that validity came in question can be given by the judge who tries the case {q). (o) R. S. C., Ord. XXI. r. 4. {q) 5 R. P. C. 404. But see (p) R. S. C., Ord. XXV. r. 2. Xurlz v. Spence, 5 R. P. C. 184. G. L 146 PROCEDURE. [^Chap. VI. But a case may arise in which the issues cannot he shaped in this way and in which the plaintiff has undoubtedly the right to begin. To try a patent action in this inverted order would unquestionably be exceed- ingly inconvenient. It would in certain cases be incon- venient even for the plaintiff himself, for when, as often happens in a patent action, the construction of the specifi- cation is in question, it is a very embarrassed position for a plaintiff to have to attack a construction which has not been avouched by the other side and to set it up for the ' mere purpose of demolishing it. It is in all cases very convenient for the Court to have the invention defined at the earliest possible stage of the proceedings and to receive that definition in an authoritative form from the party who will be responsible for supporting it. This is a view of the matter which will probably commend itself to counsel familiar with the proceedings in a patent action, and it may be expected that an arrangement will generally be arrived at that the issues of validity and infringement shall be tried in this way, without prejudice to the trial of Separate trial the issues relating to the grievance. But in the last ofvaHdityand i*esort if no agreement can be come to recourse may be infringement. Jiad to the Court to Order the trial of these issues (r) sepa- rately and before the other issues in the cause. Such an order is clearly within the power given by the rules to the judge in chambers, and it is submitted that it would in the circumstances supposed be within the principles laid down for the guidance of the Court in the application of the rule. Thus in the Emma Silver Mining Co. v. Grants Jessel, M.E., made the order because the case was “ one of simple issues.’’ There were two issues in form but in reality they were one. The real issue was whether the Grants as promoters of the company pocketed 100,000/. or thereabouts out of the purchase-money without the knowledge of the company. It was an issue which could See above, p. 97. Existing practice. (r) R. S. C., Ord. XXXVI. r. 8. SEPARATING ISSUES. 147 Cha]p, VI.] very well be tried apart from other issues which affected other defendants in the action, and as the plaintiffs were content to limit the relief sought against these defendants to such as should arise out of this issue they were allowed although originally responsible for the form of the action to have it disposed of in a separate trial (s). In giving judgment in that case the Master of the Bolls reviewed three cases in which, at the instance of the defen- dant, he had made such an order. In all these cases he acted upon two main considerations, first, that there was serious reason to believe that the trial of the selected issue would put an end to the action, and second, that the trial of the remaining issues would involve great hardship in the form of expense to the defendant in a case in which it appeared probable that the expense would be thrown away. These however were adduced as illustrations only of a principle, and although the judge himself refrained from attempting to define the principle, it would undoubtedly be safe to generalize his instances to the extent of saying that hardship to one party or the other is a thing to be considered in the application of this rule, even when it does not take the shape of inordinate expense. Even more suggestive from our present point of view is the later decision of the same judge in Fiercy v. Young {t). In that case he refused a defendant’s application for the separate trial of a particular issue and in so doing he said, ‘‘ The issue which the defendant asks me to try he has chosen himself to raise in the counterclaim. He might, if he had thought fit, have brought his action for specific performance. It was entirely his election to make his claim an issue in the action. It was not the plaintiff’s issue in the action, and it is not the substantial issue in the action, and as the defendant has chosen to raise this issue by his counterclaim he must be considered to have L 2 («) 11 Ch. D. 930. {t) 16Ch. D. 478. 148 PROCEDURE. Separating issues. \_Chap, VI. so acted for no other reason than because, according to the provisions of the Judicature Act and the rules there- under, it is desirable that all questions at issue between the plaintiff and the defendant shall he tried at the same time. He has actually availed himself of those rules to get this issue tried at the same time as the plaintiff’s issue and now he comes here with a motion that it shall be tried separately.” It is very clear that in the case now under consideration no similar reasoning could apply. The issues of validity and infringement could not be said, in the sense of this dictum, not to be the plaintiff’s issues nor could the defen- dant be said to have introduced them at his election. If therefore hardship results to him from the raising of these issues in this way, he is not debarred by his own conduct from asking the Court to give him relief. There are a few other reported cases which throw addi- tional light upon this matter. Thus in Smith v. Har- grove ill) it was held by the Divisional Court that the question of liability had been properly divided from the question of damages. The reason of this decision would not however apply to the present case, for it was there considered that the assessment of damages would involve the investigation of intricate accounts and would therefore in all probability be, in any case, remitted to a referee. In Simson v. The Hew Brunsivick Trading Co. (a;), Huddleston, B., seems to have taken a very large view of the power given by this rule, and to have justified its exercise on the vague ground that “ the judge and the master thought it was more convenient to try the question of election first.” It would seem, however, from the report of the argument that it was made to appear to the Court that in this case the whole action would fall if the issue were decided in the defendant’s favour. So that it may be regarded as standing on much the same footing as (u) 16 Q. B. D. 184. (a:) 6 Times Rep. 148. THE EIGHT TO BEGIN. 149 Chap, VI.] the more carefully reasoned decisions of Jessel, M. E., above cited. There are one or two other decisions to the same general effect (y), hut the principle must be collected from the cases above cited, and it is submitted that it covers the instance now under discussion and that if the plaintiff will not consent to allow the defendant to open upon the issues raised by pleading the patent, it would he a proper exercise of the discretion given by the rule for the judge to direct that they should he tried first. This arrangement need not involve a second trial since the order can direct that the issues shall come into the same list as the trial hut come first, or indeed the judge at the trial has power under the rule to make the order then and there (s) . Probably it would he unwise for a defendant to rely on obtaining the border at the trial since he would he putting his adversary in the best possible position for resisting it. A more promising course would seem to be to apply at chambers for the order, and if the master should be indis- posed to make it to ask him to refer the application to the .judge at the trial. The plaintiff then could not complain of surprise. The argument, on principle, in favour of this course appears indeed irresistibly strong. Not only is there the unbroken tradition in 8cire facias adopted in the Patent Act of 1883 {a), which gives the defendant the right to begin in case of proceedings for the revocation of a patent, but there is the great inconvenience to be considered to which the Court is subjected by the alternative procedure. The plaintiff and defendant in a patent action never are agreed as to the construction to be put upon the specifi- cation. The party attacking the patent argues, naturally {y) See Liverpool, Brazil, %c. v. London % St. Katherine' s S. N. Co., W. N. (1875) 203; Tasmanian By. Co. V. Clark, 27 W. E. 677. {z) An instance of such an order is Otto V. Steel ; The Same v. Sterne, 2 E. P. C. 139 ; see also Barrett and Elers V. Bay, 7 E. P. C. 57. {a) 46 & 47 Viet. c. 67, s. 26 (7). Inference from the authorities. On principle. 150 PROCEDURE. Considered in the light of the Statute of Monopolies. [_Chap, VI. enough for a construction which will defeat the grant ; the party maintaining the patent argues, on the contrary, for a construction which has been carefully thought out, with a view to supporting the patent. Now the assailant’s con- struction binds nobody, it is a mere engine of argument. But the construction put forward by the patentee is binding upon him by way of an admission, and if it be a tenable construction it may be binding on the Court which, in dealing with patents, follows the rule that the specifi- cation is to be so construed as to uphold the patent, if it can reasonably be done {h). Now nothing can be more inconvenient for a Court, or tend more surely to the waste both of time and attention, than to have to listen to a criticism when it is not as yet in possession of the subject- matter, or to follow an argument based upon postulates which will fall as soon as the adverse party opens his case. The practice in patent actions is founded in logic, and cannot be discarded with impunity. It is not merely a rule of law, but of thought also, and to put the refutation before the thesis is to involve both statements in confusion, and the tribunal which has to consider them in what must at least be a vexatious and unnecessary toil. It may be suggested whether the Statute of Monopolies with its directions for the conduct of this action and its denunciations of the mysterious penalties of prsemunire against all who presume to obstruct or divert its course, does not preclude the arrangement now proposed. To this question only the section itself can afford an answer, and the reader may therefore be referred to the chapter, in which the section is set out and discussed in detail (c). The result, so far as the present writer can judge, is that there is no difficulty about regulating the proceedings in the way proposed, or indeed in any way which the existing {h) Russell V. Cowley^ 1 W. P. C. v. Knight^ 6 R. P. C. 307. And 470; Needham v. Johnson, 1 R. P. see above, p. 115. C. 68 ; Autom. Weighing Mach. Co. (c) See above, pp. 39 et seq. 151 Chap. VI.] PROCEEDINGS IN AN ACTION. practice sanctions, provided that any departure from the ordinary course of procedure receives the approval of the Court in which the cause is depending. It is indeed a curious and perhaps a notable fact that the changes of procedure which have taken place during the past two hundred and seventy years have tended to assimilate the ordinary course of law to that which is adumbrated in the section, so that it is to-day easier to conduct an action in strict accordance with the requirements as to procedure of this ancient statute than it would have been in the year in which it passed into law. Assuming that in one or other of these ways the action can be brought into the ordinary form of a patent action, we may dismiss the subject of procedure at this point with a general reference to the many works in which the pro- ceedings in such an action are fully discussed (d)^ for the issues being the same there is every reason for adopting in this case the rules as to particulars, interrogatories, in- spection, and so forth, which have been elaborated in patent actions, and although these rules are to some extent special, it will probably be found that the Eules of the Supreme Court confer sufficient authority upon the judges to make the application of the special rules to a new case perfectly feasible. Eeference has been made in a foregoing chapter to the remedy given by the 22nd section of the Patent Act, 1883, in the form of a petition to the Board of Trade for a com- pulsory licence (e). In a case in which this remedy is given as, for example, where the defendant is working an improvement upon the patented invention it is conceived that he is entitled to set up the right to a statutable licence by way of defence to a perpetual injunetion, for clearly if he is about to obtain a licence the Court will not grant an unconditional perpetual injunction but one limited either by Statutable right to licence pleaded by way of defence. See above, p. 99. («?) See a list of such books, [e) See above, pp. 98 et seq. above, p. 69. 152 PROCEDURE. \_Chap. VI. Effect of the injunction considered. Badische Ainlin v. Levinstein. See above, p. 103. an express condition saving the licence or by leave to apply to set it aside when the licence is granted. Indeed, the right to a licence ousts the right to an unconditional injunction for the plaintiff, to establish his right to the injunction, must prove that the continuance of the act complained of will he necessarily unlawful; it is not enough to say it may he unlawful (/). Now this he clearly cannot do if the defendant is entitled to have a licence upon reasonable terms, for the licence will legiti- mate the act. There is perhaps another ground upon which the same inference may he rested. It may he doubted whether the Board of Trade could entertain the petition of an applicant against whom the High Court had issued an injunction. The petitioner can only succeed if he proves that he is prevented from making the best use of his own invention through the default of the patentee. And the Board of Trade might quite conceivably consider that there was no default in refusing to licence disobedience to the injunction of the Court. In order therefore to save the defendant’s statutable rights the injunction, it is con- ceived, ought only to go upon the terms that the patentee will grant a licence upon reasonable terms, and that the injunction is not to interfere with the defendant’s opera- tions under the licence or application to the Board of Trade. That the hardship inflicted by the perpetual injunction is often very grievous no one will doubt who has had ex- perience of patent actions. It was very strikingly illus- trated in the case of Badische Anilin v. Levinstein (g) tried in the year 1883 and just before the passing of the Patent Act, a case which could indeed easily be supposed to have given occasion for this provision of sect. 22. Pearson, J., giving judgment against the defendant in that case said : “I cannot come to this conclusion (7^), I must honestly say, without some regret. I think Mr. Levinstein has em- (/) Pattison v. Gilford, 18 Eq. [h] i.e., to grant tbe perpetual 263. injunction. {g) 24 Ch. D. 175. COMPULSORY LICENCES. 153 Cha]p, VI.] ployed great knowledge, great skill and great perseverance in finding out these processes, but I am sorry to say that the law compels me to inform him that these processes cannot be used in the production of this colouring matter seeing that the production of this colouring matter is protected by a patent.’’ That judgment was pronounced in June, 1883, and expounded what was at that time the undoubted law ; but on the 25th August following the Royal Assent was given to the section now under discussion, and henceforward the law, far from saying that an improved process cannot be practised if it falls within a subsisting patent and that in that case the later inventor’s great knowledge, great skill and great perseverance shall go for nothing, says that if by the default of the patentee to grant a licence the inventor is prevented from working or using his invention to the best advantage he shall be entitled to an order from the Board of Trade for a compulsory licence upon such terms as the Board shall deem just. It is probably notj too much to say that in this altered state of the law not patentee is entitled to a perpetual injuction against anj infringer who is working an improved form of the patented j invention unless and until he has offered a licence upon reasonable terms. The point does not seem, however, to have come before the Courts for apparently no defendant in a patent action has yet bethought him of claiming his statutable right. The following alternative defence raising this point was drafted for the purposes of a recent action but did not actually come before the Court. It is now published by way of suggestion and as embodying in a concrete form the views here advanced. In the alternative if the said patent is valid, which is not admitted, and if the plaintiff’s patent right covers the de- fendants’ manufacture, which is not admitted, then the defendants will rely upon the following matters as defence to the plaintiff’s claim. The defendants are in possession of an invention within Contrasted with the law under 22nd section. Form of plea. 154 PROCEDURE. \_Chap, VI. the meaning of sect. 22 of the Patents, Designs and Trade Marks Act, 1883. The said inyention could not be worked to the best advantage in the alternative above mentioned save under licence from the plaintiff to use the plaintiff’s said invention upon reasonable terms. The defendants will in the said alternative be prepared to take and will claim to have such licence from the plaintiff, and the defendants therefore submit that the plaintiff would not be in the circumstances aforesaid entitled to the relief claimed. This was in answer to the usual claim for a perpetual injunction and delivery up of the goods alleged to infringe. APPENDICES. ♦ — CONTENTS. I. King James’ Declaration (The Book of Bounty), p. 157. II. Bepoets oe Cases. (1) The Case of Monopolies, p. 193. (2) The Case of Penal Statutes, p. 232. III. Statutes and Eules. (1) The Statute of Monopolies, p. 235. (2) Selected passages from the Patents, Designs and Trade Marks Act, 1863, p. 242. (3) Selected Patent Eules, 1890, p. 247. IV. Illustrative Documents. (1) Patent Grant of James I., a.d. 1618. Annotated, p. 249. (2) Proclamation in furtherance of a Patent, p. 262. (3) Dispensation tending to a Monopoly, p. 263. (4) Various forms of Protection, p. 264. V. Note on Rex v. Mussary, p. 268. Appendix I. THE BOOK OF BOUNTY. The Book of Bounty has been frequently mentioned and its bearing upon the Statute Law has been fully discussed in the preceding pages. But as it has been lost to knowledge for a period of upwards of two hundred and fifty years it may be proper to submit in connection with its belated re-publication a succinct statement of what is at present known about it. The principal reference to it, and that from which it derives the greatest part of its present importance, is contained in the preamble of the Statute of Monopolies. This will be found set out on pp. 22, 23, and 235 in the present volume. That allusion, however, is not very precise, and as it does not set out the title of the book it would, if it stood alone, fall short perhaps of a perfectly satis- factory identification. The deficiency is supplied by the contem- porary testimony of Sir Edward Coke. He makes three separate allusions to the book. Two of these are to be found in the Third Institute in the chapters treating of Monopolies (a) and Penal Laws (6) respectively. Both passages are expressed in substantially the same terms, and they state in effect that the Case of Penal Laws{c) and the Case of Monopolies {d) wqtq principal motives of the king’s book mentioned in the preamble of the Act, and that the book was a great motive of obtaining the Eoyal Assent to the statute (e). The third reference in Coke occurs in his comment appended to the Case of Monopolies [f), where he says, “our Lord the King that now is, in a book which he in zeal to the law and justice commanded to be printed anno 1610, intituled ‘A declaration of his Majesty’s Pleasure,’ &c., p. 13, has published that monopolies are things against the laws of this realm, and therefore expressly {e) See above, p. 8. (/) 11 Co. Rep. 88. See below, p. 232. {a) 3 Inst. 182. {b) 3 Inst. 187. (c) 7 Co. Rep. 36. 158 APPENDIX I. commands that no suitor presume to moye him to grant any of them, &c.” The reference here to the title and to the contents of page 13 affords a complete identification and proves beyond argument that the text now re-published is the same from which Sir E. Coke quoted. The circumstances attending the composition and publication of this most interesting document have been sufficiently discussed from the present writer’s point of view in the introductory chapter of this book ( g). By the kindness of Professor Gardiner I am enabled here to add some comments of his contained in a letter upon this subject addressed by him to my friend Mr. A. B. Shaw. Sevei^oaks, October 17, 1896. Deae Me. Shaw, I have examined the little hook in the Museum Library, and quite understand why it is not included in K. James’s works. It is not a personal production of his own, hut an official declaration issued in his name, like any other declaration or proclamation. Though it was printed in 1610 (i.e., between March 25, 1610, and March 25, 1611), it was drawn up in the end of 1608, and was one of Salisbury’s many attempts to check James’s extravagance. You will find it in various forms amongst the State Papers Domestic XXXYII., 72 — 76 (Mrs. E. Green’s Calendar, 1603—10, p. 467). The only interest that attaches itself to the date of publi- cation is to show that it was printed in connection either with the Great Contract or with the break-up of the Parlia- ment. I do not remember any evidence which would fix the date to the month. The reference to it in the Statute of Monopolies is delusive. James in his declaration declared monopolies to he illegal, meaning, I believe, the grant of the right of sole selling of ordinary products in accordance with the judicial decision in the case of cards. Further on James expressly excepts the right of sole selling on new inventions. If your friend will look at my argument at the beginning of the History of England, Yol. lY., and at a paper of mine in Archaeologia, XLI. 224, he will see that my notion is that the patents which gave offence were based on the view that the goods {g) See above pp. 2 — 8. THE BOOK OF BOUNTY. 159 protected were new inventions or (what came to the same thing) new introductions, but that from motives of public policy the definition was very loosely considered, and made to cover many things which were not fairly covered by either term. If your friend disagrees with this view, I shall be only too glad to consider his arguments, and, at all events, he will find in the references and quotations a good deal of information on the subject. Believe me. Yours sincerely, Samuel E. Gardiner. As the result of inquiries made at some of the principal libraries, I have notes of the following copies of the book : — BODLEIAN. Edition of 1610. Edition of 1619. /Two copies of each edition. Three of the four copies are in volumes of 17th century pamphlets bound up together in modern times. The fourth was certainly not bound up before 1613. The contents of that volume are various small books — the Declaration coming first and being succeeded by a book on the Art of Jugling. (Com- ' municated by Mr. E. W. B. Nicholson.) BRITISH MUSEUM. Edition of 1610. Two copies bound separately. Catalogued under the heading “ Great Britain and Ireland. — James I., King.” The press marks are 115. a. 25, and 709. a. 1. (The edition standing at 115. a. 25, from which the annexed facsimile has been taken, was presented to the Museum by King George III.) Edition of 1619. One copy. Bound up with several other Proclamations and Pamphlets. Catalogued under the heading ‘ ‘ Great Britain and Ireland. — James I., King.” This is the seventh tract in the 1603 — 1627 volume of the “ Burney Collection of Papers, &c.” (Communicated by Mr. W. S. Johnson.) 160 APPENDIX I. CAMBRIDGE UNIVERSITY LIBRARY. Edition of 1610. A perfect copy. Bound up with several other proclamations, &c., of contemporary date (1605 — 1613), and all printed by Robert Barker, but having no other apparent connection with the Book of Bounty. It stands No. 3 in the Collection. The book comes from Bishop Moore’s Collection and was presented to the Library by King George III. (Communicated by Mr. H. Fletcher Moulton.) DUBLIN — Trinity College Library. Edition of 1610. Bound up with several other proclamations and pamphlets by various printers of contemporary date (1607 to 1626), but having no apparent connection with the book. It stands No. 7 in the Collection. This volume is classed: “DD.kk. 18, No. 7.” Edition of 1619. Bound up with miscellaneous pamphlets. It stands No. 2 in the Collection. This volume is classed: “P.ll. 24, No. 2.” (Communicated by Mr. Alfred de Burgh.) EDINBURGH — Advocates’ Library. Edition of 1619. One of a miscellaneous volume of pamphlets of dates ranging from 1607 to 1626, and having no con- nection with one another. The binding of the volume seems to be early 18th century. (Communicated by Mr. J. T. Clark.) MIDDLE TEMPLE. Edition of 1610. A perfect copy. Bound with the collection of “ IMiscellaneous Tracts” in the Library, of which it forms No. 4 in vol. 48. (Communicated by Mr. J. Hutchinson.) The book appears to be a small quarto, but the publishers tell me that it seems from the printer’s signatures upon the pages to have been printed in octavo form and that its present appearance is probably due to cutting down. It is described as a quarto in the British Museum Catalogue. \^Facsim. 32 ps, to follow. Declaration ofHis MaieftiesRoyall pJeafure, in whatfortHe thinketh fit CO enlarge. Or referue Himfelje in matter of^ountie^. ^Imprinted at London hy T^herc SarAer, Primer to the Kings mort Excellent MaicfHe. Anno 1610. G M f By the King. A DECLARA TION OF HIS, fi5MCaie^lies ^IR^aU plea/kre_j, in what fort he thinketh he to enla rge, or rderuehimhilfeminatter of Bountie. Auing fo partf- cularly dejeended into the confidera^ tion of wr €fate->, (^re^eWng Trea- fure , and^tue- nue, ^ as vpe fnde it full of diffcuU tj to reduce the fame-j , to the termes ^ that M 2 I thatareto befoi/hedyhjanj fucb fud- den or certame meaner, (16 will not re- (juire fome length oJ^Tivne , and change of former (Zxx^ovacs^both in the maner of our Expcnce , and of o«r Bountie; IV^eehaue thought it one of the best farts of the C arc, not onely to refolue with ourfelues^to de- cline from all maner of Expence that fhall not bee necejfary for thc-j fafetieofOur Crowne, andhonour of that EUate and dignitie ( which no Kfig can fuffer to fall y but hee muH run into contempt both abroad and at home'^ but alfbto takefuch further courfe as may make knowen to Our Seruants and SubieBs ; that although it is farre from Our inten- tion to flop all liberalitie from Our Well 3 mil deferumg Serumts. Yet Wee meane not in rejpeU of the vaine or vnnecefaty Expence , of any pn^ Mate man (or vpon falfe fuggejlion of former feruices') to be dramn either hj the mediation of friends ^ or by the importunitie of any partie inne- cefitie^fo farre to rejpetl or commu ferate others^ as to caH Our Selues and our Toferitie into.thofe "wants or freights ^ which may driue Vs to lay burdens on OurVeople^ to whom Wee defire to endeere Our Selues by all the Princely offices of Fauour and FroteUion which any earthly Kfng can afioord vnto his SubieBs. nd therefore as We doe on the one part exprejfely forbid all Our Ser^ uants and SubieBs (of what condi- tion 4 tlon foeuer they be ) to propound or offer any Suites to Vs^, by yiphich Our Teopleingenerall may beimpoueri^ JheaoroppreffediSoon the other part IVe doe lihvpife exprejjely forbid all perfons watjoeuer, to prefume-j to preffe %)sfforany thing that may ei^ ther turne to the diminution of Our ‘^ueneipand fetled^eceiptSyOrlay more charge vpon Our Ordinaries ^ vpon paine to be helde and reputed in either of thofe Woo hfideSy as per^ fons vnrporthy to enioy Our Fauour or Frefenccs for euer. fn yphich conf deration, becaufe IF ^e knotr not VehetherlFe may vnayi>ares, or vpon multiplicitie of bufnsffe, chances to any (fraunt or JVarrant, con^ trary to the Order fet dome herein : Wee fFeedoe not onely forbid all peifons vifhatfoemr , (^either Officer or O' thers') to receiue anyfuchPehtiom, or yV Qxr^a^ts^as (halbe of thop na- tures that are forbidden in the fche^ dulc hereunto annexed ( vpon that perill which is due to fuch prefump- tion) butU^edoe forbid our Steve - tarie ofEftate,f/>f keeper of Our priuie Seale, Our Chancel- lour of England , to feale any fuch Graunt or W arrant , before they haue enformed Vs pariiculerly , and receiued a new fignification of Our pleafurLj by a nevp Warrant w- der Our hand. hofe An(wercs and Certificates Pf^ee ys>iUfgnific-> Our furtherTleafure ^ ascaufeJhaU require. (tA nd becaufe there may Suits, 'which doe not fad, within the JmoW' ledge or diflinBion of proper OfE- cers and Offices (” inwhich cafes it may be conuenient to ref err e the Ex- amination of them tofome fuch per- fons as may conferre with the parties, that doe prefent the faid Suits, or thofe that may haue fome particuler interejl in the fame, either in refeB of trade or otherwife, ) IVee haue "B 3 thought CoTTlTnif- fioners. 10 thought meet ( in thatreJpeB) to point a certaine number of Com- Tnifsfoners,?o examine and conftder of all fuchparticulerSy asjhall be re- f erred vnto them hj Vs or Our Coun^ fell. (lA nd to preuent the pafsing or jaunting of any thing Tphich fhould be contrary to our Lati^es , fVe haue made Our choice ofperfons feuerally qualified , both in thevnderfianding of our Lawes, and other J{noys>ledges, that they may be Jo much the better enabled^ to report the quality of fuch Suits, toOurAriuy CZoxmctX af- ter ccnferencc-j Voith the Suitors, and Exammation of their feueraU natures , and the Circumflances depending thereupon ^ tuhtch xnould tal^e too much time , from Our fayd 7riuy 11 ^riuy Councell j if they fhould not he firjl prepared and digejied hj that courfe yi>hich is herein exprejfed. Laflly, hecaufe W^e y^ould he loth Rereruaticm thatthofe that haue not dayly accejje mea. vnto Us , jhould thinhp themfclues in danger flill to he preuented hy o- thers, tS)ho haue morc-j meanes to mooue Suites for themfelues then they haue ^ W^e doe declare hereby , that (except it he in Cafes vcherein fome Jpeciall induftry of difcouery •may mooue Us more properly to re- jpeB the firjl Suitor then any (?- tber') JVee wilimt ffer any Juch aduantage to be taken by one mans neercnejfe more then another, as not to make it one of Our oi»ne Cares (whofoeuerhe the Moouer^ to flay ll either the whole, or part for others, that deferue well, though they bee abfent , according as l^ee Jhall ob^ ferue^, that Wee haue heene good vnto fuch a Suitor heforeyn fome^ things elfe, or fall fnde the Suites themfelues to be of fuch %)alue, as may content more then one. / f AMe- A MEMORIAL OF THOSE SPE- ciall things for which Wee exprejly command that no Suitor prefume to moneys , being mat^ ters either contrarj to Our lavpes, or fuch principalis To^ts of Our Crowne, andfetledS^tatnwo.^ as are ft tobe yrholly referued^o OuroTpnevfe^vntill OwrEftate he repaired. ^ Things contrarj to Our Lams, Onopolies. Raunts of the henefteo^3.ny Tenal Lassies , or of power to dif- C pence pence with the LdW , or com- pound for the forfcnurz^. ^ ^B^erued to Our ome vfc^. y O E nts, Lands, and Leafes, in fojjefion or Biuerjton, not barring the Tenants in pof^ fe^ion^to renew their Eftates,for •xxj.yeeres, or three Hues , as hath bene vfed heretofore. 4 . A L lands entailed vpon the ^Crowne. ^ TJHomes yfmpojltions , and Seifures iov the fame. 6. T Icences to fmfort , or Sx^ I commodities prohi- bited 15 bited by orany lawfull without paying the due QuUome y. T) Rofits rifing out of Our tenures y oiAlienationSy and /vmieuied, or either Qommon ^^coueries, or other. 8. p Rofits anfwered vnto Vs, from any oiOnr Seales, p. A S farts y zxAT)efeWmelS'i^ ^ ^ //(?/, as thingsonely fit to be meafured by the rules ofOur owne confcience. 10. p\ Ebts2in6.Accomptssv\\Qr-- upon there is any Seifure or Stallement, Sind all other Debts C ^ and G. N \6 and Jccompts accrued fince^the yaai.yQ.treo^ Q^li^abeth* 1 1. 'T’ He Fines of the Stance ^ Qhamber, iz. K T O newe Fenjtons to bee granted. 3 ^(mertheleJfeyOUtof the (jene^ ralitie of the Natures abouefatde^ We intend to be excepted the Parti- culars expreffed in the Schedule next enfuingy in 'ss/hich We haue con-- temed all the Natures, thatWee^ meane to haue referued for Our Bounde. A ME- A MEMORIAL OF THOSE SVITS 'yfpherein IVe are contented to bee moued by Our Seruants and Sub' ieBs, and to rei»ard them accor^ ding to the particular merit Suitor. Ifts of Offces in Our (jifty .0 meet and wor^ thy perfons. 2. Eeping of l^arhps and ,1 V lyalJ^s in Chafes and For' rehfx,and keeping of QaJllesJForts ox Houfes, T7 Orfeitures of Landes and Goods that fhal grow here- C j after i8 after by Murthers or other Felo-‘ me/, wherein neuertheleile Wee doe ftraightly forbid allperfons whatfoeuer they be, that fhalbe Suitors to Vs for any Rich Forfeit tures, if there fhalbeany motion made before the Offendours bee duly conui(5ted,that they do not in any fort refort to any of Our Judges, luftices, learned Coun- ccU, or other minifters of lu- ftice , nor intermeddle direcRly or indiredtly in the profecution ofthe before the Offendors be d uely conuicfted, vpon paine both to bee difabled to obtaine their Suite or any part thereof^ or otherwife to incurre Our difo pleafure for their contempt' in thatbehalfe. I? 4., T) Ardons in Cafes appea- ring vnro Vs by due Qer^ tificate and Commendation , to be fit to receiue Our Mercy. 5. 17 Scbeats that fhall growc ^ due for want of Heirt^ by orotherwife. d. T Andsthatfhalbe bereaf- ^ terpurchafed hyM^hens. 7. ‘TA Enization offucb perjons asfhall be thought fit, 8. Orfeitures of Outla^pries of fuch as fhall bee hereafter Oullayped after judgement , and ftand fo oiLtlcmed by the fpace of fixemoneths , after the OutUturie retur-” 20 returned, and Hkewife of fuch as are outlaXi>ed after ludge- ment, and (Kail not difchargc fuch outlavprle within fixe mo- neths next after the date hereof* with Cautions and Trouijion that the true Creditors fhallbeefirfi payd their debts, and that none of Our Subiedts fhalbe fued by force offuch^r4f/«f,for any debt or other caufe in Our Name, but onely in the name of the Qrauntee^ , and with a Claufe to be conteined in fuch our (jrants^ for fubmitting the fame to Our Court of Exchequer the miti- gation of the extremitie of the forfeiture, a tenth part of the be- nefitc of fuch outlaprie fo mitiga- ted 21 ted to be referued to Our owne Vfe. new inuention, fo they be not contrary to the Lar», nor miTchieuous to the States, by raifing prices of com^ modities at home, or hurt of trade, or otherwiie inconuenient. 10. T^ Shts due before the xxxo yeere of Sli^abeth, whereupon there is nofe 'tfure or fnUallemenL 1 1. A Lfo, whereas in the Sche^ ^ ^dule-j of things referued from Suit, We haue made men- tion of eJjJarts and DefeBiue'Ti' ties, as cafes fit onely to be mea- D fured I zz, fured by Our owne confcience ; Yet We do hereby dcclare,that e do not vnderftand (as com- prehended in that Our referua^ tion) fuch intrufions as haue bene madevponOurpo^^/o«/ by co- lour of any where th^w- taile is fpent , or by colour ofany terms, where the termeis expired, being matter of plaine dijinheri' yb«vnto Vs, and that which no SubieU in his owne/w/eref? would indure: And therefore We are well pleafed. That Our Seruants and SubieHs do moue Vs in cafes of tho[e tv?o natures . Prouided alwaieSjthat they do not fal vpon any thofe particular 77//e/ which are already made knowen vnto Vs, Vs , ^n^T(^giflred into a 'Booke, fined by the hand of the Qhancel^ lour of Our Exchequer , to the view whereof^ as occafion fhall ferue, the maybe admitted, to the intent he may thereby fee, there is no caufe to reward him for difcouerj of that, which is al- readyknowen • neither.alfo that they meddle with any more an- citnt^ntrufions yhut onely fuch, where the fntrufiom haue bene made, fince the firftyeere of H And that the iS’wVorrfub- mit themfelues to fuch compofiti- on, as fhalbe made by our fiom- mfiionerSy And a tenth part ofthe benefit of fuch Qompofition as fhall accrue to bee referued. to Our T> z /clues'. 2 ^ felmSyZnA OnrfuccejJhurSyQ.n^ tlie parties in pojfefjiorij to take a new Tatent , with the former Tenure referued, Wee jhall depart mth many branches of thofe Re- ceipts, yphich haue come vnder the Title of ordinary cafuall Reuc- D3 nue nue of the Kings of England; Yet IVee haue thought it more agrees able to Honour and luftice , and to the prefidents of the greateU and mJeU Princes , (" afvppU Our neighhourSyOs OwrPredecellours^ yehen JVee are djj^ofed to Reward any man out offuch cafualties, to vfe Our owne ludgement for the quantltie , and not to leaue tht^ profecution in fuch cafes to pri- uate meuy leU "when they hnovp the particular nature of that offence fromvphich their htnt^itfhould be^ deriued , they may tak^ fome fuch indired and violent courfes, ("m reffeU of their oypnt^ gaine as is farre contrary to that Clemencie, y^hich iVee haue euer vfed, and in ^ tend 27 tend to doe to all Our louing Sub- iecfls ; hauing euer thought itaspro^ per for %)Sy (” reJheBing King- ly Office) to be the moderatour of the rigour of Our Lawes , as to preferue^ them from neglecT:, the one leading to oppreffion of ma^ ny^ arid the other to the ouerthro w and diffolution of ^he tt^hole^,, fn rvhich confideration aljo, nrhereas Wee haue beene contented heretofore ( and fo are fill deter*’ mined ^ to beUow vpon diners fons according to their merit fome^ portion of that Benefit tphich the Lawes haue giuen %)s , vpon the conuidion ty Recufants. Wee doe frU exprefy fgnifie Our great difike of fuch as out of defire of their 28 their cr»ne priuate profit , haueta^ kpn , or Jhatt takp vndue^ and ex^ treme courfes againU any of Our SubiecHis, afmll ^inditing them in places vphere they haue no refi^ dence, as othemife-^ oAndnext^ becaufe W’ee haue bene aljh infor^ med. That fome others, totphome JTeee haue pajfed fuch Graunts, ham fomuch abufed Our fauours, as to prefume to compound lipith diuersillaf-eUed, for light before any Conuidion , Q tphereby the ofifendours in that hfide haue beene the more bachetrard to con-‘ forme themfelue s : yfhtch is contra^ ry to the godly ende and purpofe of Our Lawes , that aymed not at /^e/>pum'fhment, but at their formation : 29 ibrmation : Wee doe hereby com^ maund, that in all Graunts of lil^e nature hereafter ^ ajpeciall Claufe be infer ted y that no fuch Graunts doe inanyvpife proceed to Compo- fition ttiith any Recufanr before a lavefuU ConuKftion. cause, it appeard that the same clothiers did make baies very like to Mr. Hastings frisadowes and that they used . to make them before Mr. Hastings patent ; for which cause i they were neither punished nor restrained from making their ‘ baies like to his frisadoes. Another monopoly patent was granted to Mr. Matthey a : cutler at Eleetbridge in the beginning of this Queens time, ^ which I have here in Court to shew, by which patent it was ; granted unto him the sole making of knives with bone hafts and plates of lattin because, as the Patent suggested, he • brought the first use thereof from beyond seas ; yet, never- ' thelesse, when the wardens of the Company of Cutlers did i shew before some of the Counsel and some learned in the i law that they did use to make knives before, though not with ^ such hafts, that such a light difference or invention should ; be no cause to restrain them, whereupon he could never have : benefit of this patent although he laboured very greatly ; therein. Lastly the monopoly patent granted to one Humphrey of ! the Tower, for the sole and only use of a sive or instrument f for melting of lead, supposing that it was of his own inven- j tion and therefore prohibited all others to use the same for ; a time. And because others used the like instrument in ! Derbyshire, contrary to the intent of his Patent, therefore t he did sue them in the Exchequer Chamber by English bill. | In which Court the question was whether it was newly ; invented by him whereby he might have the sole privilege ■ or else used before at Mendiff in the West Country ; which, i THE CASE OF MONOPOLIES. 221 if it were there before used, then the Court was of opinion lie should not have the sole use thereof. In Easter term last, in the Kings Bench, Gowhy {q) brought an action of trespasse Knight for false im- prisonment. Knight justified because of the Mayor and Citizens of Cant, have used time of mind to nominate a tov^n chandler within Cant, and that all the butchers within Canter, should sell their tallow to him at such a price as the Mayor should appoint or else to be committed. And that because the Plaintiff was a butcher in the town and refused to sell his tallow to the town chandler, was committed and so justified ^c. Whereupon the Court was moved this term that the issue concerning the custom might be tryed out of Cant. And the Court then thought that the custom was not good, but unreasonable and unlawful, because it did tend to a Monopoly. Wherefore the Plaintih did demur upon the same plea. ^ Now touching the action of the Case grounded upon the * Noy, 184. Monopoly Patent. There is no wrong done to the Plaintiff by the Defendant Bight of^ selling of cards better cheap than the Plaintiff would though competition, he received losse and therefore no cause of action, like unto the case of 11 4./. 47. where there was a school of long continuance and another had erected a new school in the same town whereby the school-master of the ancient school gained not so much as he did before yet he could have no action against the new school-master for the same. And Mr. Darcies case is much stronger against him for that he, newly intruding into the trade of* making & selling of cards, doth bring his action against the ancient card- seller for hindring his sale ; which is all one as if the new school-master should bring his action against the old school-master for teaching so well that he cannot gain so much by teaching his scholars as he desired; which the law will not allow, being damnum ahsque injuria, as in this Case. A Man hath a mill in a Town of ancient continuance and another buildeth a mill in the same Town whereby some of his customers doth forsake the ancient mill; this is no wrong though it be damage and therefore no cause of action, and then also I compare that to this case [r). I. S. hath a pasture in the town of Dale where the tenants do use sometimes to put their cattel to jost and another person in the same town doth recover grounds overflown with water and doth make that good pasture where the tenants have cattel better cheap to the damage of I. S. & {q) Moore calls tlie plaintiff Buby K. B. 674. and the defendant Wright. Moore, (r) 22 H. 6, fo. 14. 222 APPENDIX II. yet no cause of action, being neither wrong to I. S. nor hurt to the Common-wealth. The Case was this ; B. said unto R. that I. S. said that if he did meet R. he would kill him ; whereupon R. for fear of I. S. fled so fast that he killed his horse. This was damage to him and yet he had no cause of action. So in our Case although the antient cardseller do sell better cheap than Mr. Darcy ^ yet it is no wrong to him nor to the common-wealth ; so no cause of Action. Now to answer the Cases and matters material to be • answered. It is flrst objected that it is unlawfull and hurtfull the playing at cards in all parts of the Eealms and therefore restrainable by patent in all parts of the Eealm. I answer that moderate playing at cards was never thought unlawfull or prohibited generally but for servants and in some particular manner for some persons; which, by the intent of the same laws (^), must be thought lawful! for the persons not thereby prohibited. And Mr. Darcy in his declaration saith that he made 4000 grosse of cards for the necessary use of subjects &c. which necessary use cannot be of a thing hurtful. This Patent is no restraint of Card-playing but rather an * Noy, 185. occasion^^ of increase of play, as I can prove plainly, as it is now used and doth but take the trade of making and selling of Cards from many persons and giveth that trade to one ; which is unlawful. Where it is obj ected, that an action of case was maintain- able for money won by false dice' this maketh rather against the Plaintiff than with him for that if it had been won by true dice it had been so lav/fully done that the party had had no remedy. Where they object a writ in the Eegister, rehearsing of a grant made to the Abbot of Westminster, that he should have a fair to continue 32 dayes at Westminster and that none during that time should buy or sell any Merchandise within seven miles of the fair, to this I answer, that upon this writ there was never judgement or allowance given m anj Court and that it is unreasonable and absurd that none should buy or sell within seven miles whatsoever occasion should happen ; as many times men are robbed of their apparel and then they must go seven miles to buy new, or goe naked. And there be divers writs in the Eegister which have no warrant of law, as action of waste against Tenant for life, when there is a mean remainder for life between. And likewise an action of wast by the heir for wast done in the time of the father. {q) 12 E. 2, c. 6 ; 1 H. 4, c. 9 (so in Noy, scd qu .) ; 33 H. 8, c. 9. THE CASE OF MONOPOLIES. 223 Whicli are against Law and it is a fit answer to voncli against this writ the writ that Thorninge saith he hath seen in the Begister, Precede domino Regi, which is as absurd as the other though in an other degree ; which writs are more meet to be concealed than vouched by such as regard the credit of the Law. But it was adjourned till another day (r). The Attorney-General e contra argued that the King can prohibit or license mala prohihita and can restrain matters of pleasure and this for the public good although it may involve damage to private persons. And he cited *22 E. 3, fo. 14 and 29 (j), that trial per medietate lingucB was granted first by patent before it was confirmed by Act of Parliament. And 20 E. 3, titulo Corone, the King granted to Londoners that they should not join battle (/). The Register {u) has a case where one made default after default, and was about to lose his land to the demandant but the King granted warrantia diei by which he was privileged and the demandant prejudiced. 30 H. 6, fo. 25, and 5 E. 2, titulo Quare Impedit, 125 (jv). The King can make a County Palatine and thereby the subject will be restricted to sue there for justice and will^' be shut out from other Courts. The King can grant a protection to delay suits and (i H. he (r) Moore gives the following passage from Fuller’s speech. (Moore, K. B. 674), and see above, p. 217. Fuller who argued e contra in- sisted upon the liberty of subjects in the use of their trade which he thought could not be tolled or re- strained by the king’s patent. And he cited 2 H. 5, fo. [probably the Case of John the Dyer, Y. B. 2 H. 5, fo. 5, pi. 26. See above, p. 217], the case of a dyer, and 14 H. 8 that a millstone is not distrainable nor a smith’s anvil nor the garment in a tailor’s shop nor a horse in a common hostelry because in the public interest such trades are not to be interrupted or restrained [the case referred to is JViston v. Abbot of St. Alban’s^ Y. B. 2 H. 8, fo. 25, pi. 6 (Easter Term) . Only the millstone was adjudicated upon. The smith’s anvil is mentioned with a “qu.,” the garment and the horse are quoted from 22 E. 4, 49]. (s) The reference in fo. 14 is to pl. 38, which is to the effect stated in the text. The reference to fo. 29 appears to be wholly mistaken. if) The exemption of Londoners from wager of battle is traced by Coke in 4 Inst. 252, to a charter of H. 3, dated 16th March, 1227. The Year Book for 20 E. 3 is lost. (v) Registrum Brevium. There are several precedents of the king’s warrantia diei in the Register, pp. 18 and 19, but they do not show that the party warranted had made repeated defaults of appearance. Coke may have been supplying the facts ab extra. [x] These references seem both to be incorrect. I can make no- thing of them. (y) This incomplete reference may perhaps relate to the Case of Uumfrey Stafford attainted of high treason, and arrested at Culnam, a sanctuary of the Abbots of Abing- don. The plea of sanctuary did not avail him, but it seems to have been conceded that the King could at one time have granted a sanc- tuary for treason, perhaps a for- Moore, K. B. 674. The Attorney- General’s argument. * Moore, K. B. 675. 224 APPENDIX II. Coke’s argu- ment. can grant sanctuary for debt. And with respect to the statute of 32 E. 3 (jy), although the sea be open to everybody for traffic yet the King can issue an injunction ne exeas regiiuni, as says Fitz. Nat. Bre. and Dyer, i Mariae {z). And he said that the King has divers prerogatives indisputable by the subject, as 21 E. 3, 60 (<2), to make leagues, to debase the coin, levy forces, &c. And 3 E. i rot. patentium {h) in the Tower E. i restrained the transportation of wool, and it was good. And the office of Aulneger was granted 17 E. 2, and adjudged good without Parliament, and the King has impost ! and magna custuma by the common law, see 30 H. 8, and f I Mar. Dyer, fo. 92 (c). And 2 E. 3, fo. 7 {d), a patent ) granted that all ships laden in the haven of Yarmouth should there discharge and not elsewhere. And 5 E. 3, fo. 47, and [ 6 E. 3, fo. 10 and 51, a grant of the first taste of all wines ' which come to certain parts (^) and the patent for printing also is in privilege to this day because they are for the public good (f). And the customs and bye-laws of cities, boroughs and corporations are allowed although contrary to common right and the liberty of the subject. And to show that the King can restrain matters of pleasure he cited 3 E. 2, Broke, Forests {k ) ; he can restrain any man from making a park, forest or chase. And 30 E. 3 (/), in the Parliament Rolls is a precedent that whereas the alchemists in the time of H. 6 (/) persuaded the King that a philosopher’s stone could be made and the King in conse- quence granted a commission to two friars and two aldermen to inquire if it were feasible, who made a return that it was. Therefore the King granted to those aldermen a patent of case is stated on fo. 51 as above cited, and from that it appears that he claimed by prescription the first taste and pre-emption of wines in the port of Eawe de Hull after the King’s prisal, (/) 11 R. 2, ch. 9. (ff) I cannot find any such au- thority. (A) I have not been able to dis- cover this original patent for the garbling of spices. A patent founded in part upon it for the garbling of tobaceo is given in Ry. 17 Feed. 191. (i) This refers no doubt to the Charter of the Stationers’ Company. Possibly also to the privileges of the Universities, ^ee Stationers’ Co. V. Carnan, 2 Wm. Bl. 1003 ; Uni- versities of Oxford and Cambridge v. Richardson., 6 Ves. 689. (A) This is a mistake on the part of the reporter. The correct refe- G. rence is given in Coke’s Synopsis of the Argument, and is to Brooke’s Ab., tit. Action on the Statute, pi. 48. The imperfect reference 3 E. 2, is evidently founded on Brooke, who gives as his authority “Note on Circuit in the time of E. 2.” See above, p. 202. (f) Whether Edward III. or Henry VI. is to be credited with having patented the philosopher’s stone must be left to the industry of some future student to deter- mine. Hindmarch, citing this pas- sage, sets it down to Edward, but assigns no reason for his choice. The Parliament Roll affords no help, for the Parliament did not assemble in the 30th year of the third Edward’s reign, and there- fore there is no such Roll. But possibly the Patent Roll is meant. See Coke’s Synopsis of the Argu- ment, above, p. 202. Q APPENDIX II. privilege that they alone and their assigns should make the philosopher’s stone. And he concluded that cards were matter of pleasure and could be restrained by patent. And postea Pasch. i Jac. it was adjudged pro defendente. As to the first (/), it was argued to the contrary by the defendant’s counsel and resolved by Popham Chief Justice per totam curiam that the said grant to the plaintiff of i the sole making of cards within the realm was utterly void ! and that for two reasons : 1. That it is a monopoly and : against the common law. 2. That it is against divers acts i of Parliament. Against the common law for four reasons : 1. All trades, as well mechanical as others, which prevent ; mon^law commonwealth) and exercise men , and youth in labour for the maintenance of themselves and i their families, and for the increase of their substance, to | serve the Q,ueen when occasion shall require, are profitable i for the commonwealth and therefore the grant to the plain- ' tiff to have the sole making of them is against the common ; law and the benefit and liberty of the subject; and therewith \ agrees Fortescue mLaudibus leguni Anglice, cap. 26 {m). And i a case was adjudged in this court in an action of trespass i inter Davenant and Hurdis, Trim 41 Eliz. Rot. 92 (;?), where ' the case was that the company of Merchant Taylors in i London, having power by charter to make ordinances for ; the better rule and government of the company, so that they i are consonant to law and reason, made an ordinance that 1 every brother of the same society who should put any cloth J to be dressed by any clothworker, not being a brother of the i same society, shall put one half of his cloths to some ! brother of the same society who exercised the art of a cloth- ^ worker, upon pain of forfeiting ten shillings &c. and to ) distrain for it &c. and it was adjudged that the ordinance, although it had the countenance of a charter, was against 3 the common law because it was against the liberty of the \ subject ; for every subject, by the law, has freedom and ) liberty to put his cloth to be dressed by what clothworker ‘ he pleases and cannot be restrained to certain persons for ; 226 11 Co. Rep. 86 . Judgment. Freedom of (Z) I.e., the first question for- mulated in Coke’s Epitome of the Argument — the question, namely, of the validity of the grant of sole making within the realm ; the second question being of the va- lidity of the exclusive dispensation | giving the plaintiff the right of sole ’ importation. See above, p. 201. (m) This reference to Fortescue j appears to be mistaken. {n) Moore, K. B. 576. THE CASE OF MONOPOLIES. 227 that in effect would be a monopoly ; and therefore such Judgment, ordinance, by colour of a charter, or any grant by charter to such effect, would be void. 2. The sole trade of any mechanical artifice, or any other Mischief of monopoly, is not only a damage and prejudice to those that exercise the same trade but also to all other subjects, for the end of all these monopolies is for the private gain of the patentees ; and although provisions and cautions are added to moderate them, yet rea profecto stiilta est nequitim modusy it is mere folly to think that there is any measure in mis- chief or wickedness and therefore there are three inseparable incidents to every monopoly against the commonwealth, sc. 1. That the price of the same commodity will be raised, for he who has the sole selling of any commodity, may and will make the price as he pleases : and this word monopoUum, dicitur octto rov [/.ovou ytaX irofkioj quod est cam unus solus aliquod genus merccdurm univcrsum emit qmetium ad suum libitum statuens. And the poet saith : omnia Castor emit, sic fit lit omnia vendat. And it appears by the writ of Ad quod damnum, F. N. B. 222 a (o), that every gift or grant from the King has this condition, either expressly or tacitly annexed to it, Ita quod qoatria per donationem illam magis soldo non oneretur seu gravetur [p) and therefore every grant made in grievance or prejudice of the subjects is void {q) ; and 13 H. 4, 14 b, the King’s grant which tends to the charge and prejudice of the subject is void {r). (o) Fitzherbert’s Natura Bre- viiim. The writ ad quod damnum was issued when a suitor applied for a grant of the royal bounty, or a licence to make a grant in mort- main, and directed the escheator to inquire whether any, and if any who, would be damnified by the proposed grant. ( p) This clause is extracted from the writ ad quod damnum^ and expresses the end of the inquiry directed to be made by the es- cheator. The words do not, of course, occur in the grant made upon the escheator’ s return and the argument seems to be therefore that if the effect of the grant is to lay a burden or a grievance on the subject, the King must have been deceived by the escheator’ s return. di) It is, perhaps, worthy of remark, that the avoidance accord- ing to this theory arises not be- cause the gift is ultra vires, but because it is contra intentionem of the King. The judges were far from adopting Fuller’s doctrine that the King cannot make a grie- vous grant (above, p. 218). They refrained from putting a limit on the prerogative, and only decided that the Crown never intended a grievous grant, and that as its grants always take effect “ secun- dum intentionem regis'^ (see above, p. 113) to prove it grievous is to prove it void. It is one of those in- genious developments of the courtly doctrine that the King can do no wrong, in which the English com- mon lawyers so greatly delighted, and by which they so effectively served the cause of liberty. (r) See above, p. 212. 228 APPENDIX II. J udgment. Mischief of monopoly. * 11 Co. Eep. 87. Queen de- ceived in grant. Grant without precedent. The 2d incident to a monopoly is, that after the monopoly granted, the commodity is not so good and merchantable as it was before : for the patentee having the sole trade, regards only his private benefit, and not the commonwealth. 3. It tends to the impoverishment of divers artificers and others, who before, by the labour of their hands in their art or trade had maintained themselves and their families, who now will of necessity be constrained to live in idleness and beggary : Vide Fortescue uhi supra [p) : and the common law, in this point, agrees with the equity of the law of God, as I appears in Deut. cap. xxiv. ver. 6.* Non accipies loco ! pignoris inferiorem et snperioreyn molam, quia animam suam apposuit tihi ; you shall not take in pledge the nether and ! upper millstone, for that is his life ; by which it appears, ] that every man’s trade maintains his life, and therefore he ought not to be deprived or dispossessed of it, no more than 'I of his life : and it agrees also with the civil law ; Apud Jus- . tinianum enim legimus^ monopolia non esse intromittenda ^ quoniam non ad eommodum reipublicce sed ad lahem detrimen- ; taque pertinent, Monopolia interdixerunt leges civiles, cap. i' Be Monopoliis lege unicad’ Zeno imperator statuit, ut exercentes monopolia honis omnibus spoliarentur. Adjecit Zeno^ ipsa rescripta imperialia non esse audienda^ si cuiquam monopolia concedant [q) . I 3. The Queen was deceived in her grant ; for the Queen, j as by the preamble appears, intended it to be for the weal public, and it will be employed for the private gain of the patentee, and for the prejudice of the weal public ; moreover j the Queen meant that the abuse should be taken away, '] which shall never be by this patent, but potius the abuse j will be encreased for the private benefit of the patentee, and jj therefore as it is said in 21 E. 3. 47 in the Earl of Kent’s !| case, this grant is voidi jure Regio. ; 4. This grant is impressionism for no such was ever seen to pass by letters patent under the great seal before these days, and therefore it is a dangerous innovation as well without any precedent or example as without authority of law, or reason. And it was observed that this grant to the plaintiff was for twelve years (r) so that his executors, ad- {p) Above, p. 226. (g) Cod. Just. lib. IV. tit. 59, De Monopoliis. (r) This should be twenty-one years. See above, p. 200. There had been a grant of the same privi- lege formerly made to Ralph Bowen and this is probably the soiirce of the mistake. THE CASE OF MONOPOLIES. 229 ministrators, wife or children, or others inexpert in the art Judgment, and trade, will have this monopoly. And it cannot he in- tended that Edward Barcy, an Esquire and a groom of the Queen’s Privy Chamber, has any skill in this mechanical trade of making cards. And then it was said that the patent made to him was void ; for to forbid others to make cards who have the art and skill and to give him the sole making of them who has no skill to make them will make the patent utterly void. Vide 9 E. 4. 5. b. And although the grant extends to his deputies, and it may be said he may appoint deputies who are expert, yet if the grantee himself is not expert and the grant is void as to him, he cannot make any deputy to supply his place, quia quoclqjer me non possum, nee per alium. And as to what has been said, that play- ing at cards is a vanity, it is true, if it is abused, but the making of them is neither a vanity nor a pleasure, but labour and pains. And it is true, that none can make a Prerogative, park, chase or warren without the King’s licence, for that is quodam modo to appropriate those creatures which are ferte naturce, 8^ nullius in honis to himself, and to restrain them of their natural liberty, which he cannot do without the King’s licence ; but for hawking, hunting, &c. which are matters of pastime, pleasure, and recreation, there needs no licence, but every one may, in his own land, use them at his pleasure without any restraint to be made, unless by Parlia- ment, as appears by the statutes of 11 H. 7. c. 17. 23 Eliz. c. 10. 3 Jac. Regis c. 13 (s). And it is evident by the preamble of the said Act of 3 E. 4. c. 4. [t) that the importa- tion of foreign cards was prohibited at the grievous com- plaint of the poor artificers cardmakers, who were not able to live of their trades if foreign cards should be imported, as appears by the preamble, by which it appears, that the said act provides remedy for the maintenance of the said trade of making cards forasmuch as it maintained divers families by their labour and industry ; and the like act is made in 1 K. 3. chap. 12. And therefore it was resolved, that the Queen could not Conclusion, suppress the making of cards within the realm no more than (s) These three statutes are game delivered within a few weeks of laws. It is evident from the last James’ accession to the throne, the reference that Coke himself edited citation of an Act of the third year this judgment, and permitted him- of his reign is a manifest anach- self to exercise a large discretion in ronism. doing so, for as the judgment was [t) See above, p. 207, n. [a). 230 APPENDIX II. Judgment. Freedom of trade. Power of Parliament. Force of Act of Parliament 11 Co. Eep. 88 . the making^ of dice, bowls, balls, hawks hoods, bells, lures, dog couples and other the like, v/hich are works of labour and art although they serve for pleasure, recreation and pastime and cannot be suppressed but by Parliament, nor a man restrained from exercising any trade, but by Parlia- ment, 37 E. 3. cap. 16 {ii), 5 Eliz. cap. 4 (^r). And the play- ing at dice and cards is not prohibited by the common law, as appears Mic. 8 & 9 El. Dyer 254 (y) (unless a man is de- ceived by false dice or cards, for then he who is deceived, shall have an action upon his case for the deceit) and there- fore playing at cards, dice, &c. is not malum in se, for then the Uueen could not tolerate nor license it to be done. And where King E. 3 in the 39th year of his reign, by his pro- clamation, commanded the exercise of archery and artillery, and prohibited the exercise of casting of stones and bars, and the hand and foot-balls, cock-fighting, ^ alios luclos vanos, as appears in dors’ claus’ de an. 39 E. 3. nu. 23. yet no effect thereof followed, until divers of them were prohibited upon a penalty, by divers acts of Parliament, viz. 12 E. 2. cap. 6. 11 H. 4. cap. 4. 17 E. 4. cap. 3. 33 H. 8. c. 9. Also such charter of a monopoly, against the freedom of trade and traffic, is against divers acts of Parliament, sc. 9 E. 3. c. 1 & 2, which for the advancement of the free- dom of trade and traffic extends to all things vendible, notwithstanding any charter of franchise granted to the contrary, or usage, or custom, or judgment given upon such charters, which charters are adjudged by the same Parlia- ment to be of no force or effect, and made to the derogation of the Prelates, Earls, Barons and grandees of the realm, and to the oppression of the commons. And by the statute of 25 E. 3. cap. 2. (s) it is enacted, that the said act of 9 E. 3. shall be observed, holden, and maintained in all points. And it is further by the same act provided, that if any statute, charter, letters patent, proclamation, command, usage, allowance, or judgment be made to the contrary, that it shall be utterly void. Vide Magna Charta, cap. 18. 27 E. 3. cap. 11, &c. {a). {u) The reference here to the chapter is mistaken. Probably Chapter I. is intended. That is a statute regulating the trade in wool. (.^;) The statute about artificers and apprentices, 5 Eliz. c. 4, s. 24. {ij) This reference to Dyer ap- pears to be mistaken. But Fitz- herbert’s Nat. Bre. 95 may be cited to support the text. See also Harris V. Bowden, 1 Cro. Eliz. 90. (z) I.e. 25 E. 3, st. 4, cap. 2. (a) These statutes accord freedom of trade to merchants. THE CASE OF MONOPOLIES. 231 As to the 2d question it was resolved, that the dispensation Judgment, or licence to have the sole importation and merchandizing of Dispensation, cards (without any limitation or stint) notwithstanding the said act of 3 E. 4. (6) is utterly against law (c) : for it is true, that forasmuch as an act of Parliament which generally pro- hibits a thing upon a penalty, which is popular, or only given to the King, may be inconvenient to divers particular persons in respect of person, place, time &c. for this reason the law has given power to the King to dispense with particular Dispensing persons {d ) ; dispensatio mali prohibiti est de jure domino Regi concessa, propter impossihilitaf prceviden’ de omnibus particular', ^ dispensatio est mali prohib’ provida relaxatio, seu necessitate pensata. But when the wisdom of the Parliament has made Act of Par- an act to restrain pro bono publico the importation of many liament pro foreign manufactures, to the intent that the subjects of the ^ono publico. realm might apply themselves to the making of the said manufactures &c. and thereby maintain themselves and their families with the labour of their hands, now for a private gain to grant the sole importation of them to one or divers (without any limitation), notwithstanding the said act, is a monopoly against the common law and against the end and scope of the said act itself ; for this is not to maintain and increase the labours of the poor card-makers within the realm, at whose petition the act was made, but utterly to take away and destroy their trade and labours and that with- out any reason of necessity or inconveniency in respect of person, place, or time ; and eo potius because it was granted in reversion for years, as hath been said, but only for the benefit of a private man, his executors and administrators, for his particular commodity and in prejudice of the common- wealth. And King E. 3. by his letters patent granted to one John Peche the sole importation of sweet wine into London, and at a Parliament held 50 E. 3. this grant was adjudged void, as appears in Bot. Pari. an. 50 E. 3. M. 33. (e). Also Action upon admitting that such grant or dispensation was good, yet the a statute, plaintiff cannot maintain an action on the case against those who import any foreign cards, but the remedy which the act {h) 3 E. 4, ch. 4. {c) The doctrine of the dispensing power is now completely obsolete, the power itself having been abo- lished by 1 Wm. & Mar. c. 1. {d) “ Dispense with . . . per- sons.” As to this idiom, see above, p. 34. {e) It has been pointed out above that the Parliament Poll does not at all sustain this view of Pee- chee’s patent. See p. 206, n. (r). (/) I.e., forfeiture of the goods imported in breach of the statute one-half to the King, and the other half to him who will first seize them for the King. 3 E. 4, c. 4. 232 APPENDIX II. Judgment. Decision. 7 Co. Rep. 36. Grant of dispensing power. Incommu- nicable pre- rogative. of 3 E. 4. in such case gives ought to be pursued (/). And judgment was given and entered, quod querens nihil caper et per hillam. To this report Sir Edward Coke subjoins the following charac- teristic comment: — ‘ ‘ And nota reader, and well observe, the glorious preamble and pretence of this odious monopoly. And it is true quod privilegia quce re vera sunt in prejudicium reijmhlicce, magis tamen speciosa hahent frontispicia honi publici prcetextum quam honoe. & legates concessiones ; sed prcetexu liciti non debet admitti illicitum. And our lord the King that now is, in a book which he in zeal to the law and justice commanded to be printed anno 1610, intituled, ‘ A Declaration of his Majesty’s Pleasure, &c.,’ p. 13, has published, that monopolies are things against the laws of this realm ; and therefore expressly commands that no suitor presume to move him to grant any of them, &c.” II.— THE CASE OF PENAL STATUTES. HU. Term 1605. This term upon letters directed to the Judges to have their resolution concerning the validity of a grant made by Queen Elizabeth, under the great seal, of the penalty and benefit of a penal statute, with power to dispense with the said statute, and to make a warrant to the Lord Chancellor, or Keeper of the great seal, to make as many dispensations, and to whom he pleased ; and on great consideration and deliberation by all the Judges of England, it was resolved, that the said grant was utterly against law. And in this case these points were resolved, that when a statute is made by Parlia- ment for the good of the commonwealth, the King cannot give^^ the penalty, benefit, and dispensation of such act to any subject; or give power to any subject to dispense with it, and to make a warrant to the great seal for licences in such case to be made : for when a statute is made pro bono publico, and the King (as the head of the commonwealth, and the fountain of justice and mercy) is by the whole realm trusted with it, this confidence and trust is so inseparably joined and annexed to the royal person of the King in so high a point of sovereignty, that he cannot transfer it to the disposition or power of any private person, or to any private use ; for it THE CASE OF PENAL STATUTES. 233 was committed to the King by all his subjects for the good of the commonwealth. And if he may grant the penalty of one act, he may grant the penalty of two, and so in infinitum. And such grant of any penal law was never seen in our books, nor before this age was any such grant ever made ; but it is true, that the King may (upon some cause moving him in respect of time, place, or person, &c.) make a non obstante to dispense with any particular person, that he shall not incur the penalty of the stat. and therewith agree our books. But the King cannot commit the sword of his justice, or the oil of his mercy concerning any penal statute to any subject, as is aforesaid. It was also resolved, that the penalty of an act of Parliament cannot be levied by any grant of the King, but only according to the purpose {a) and purview of the act; for the act which gives the penalty ought to be followed only in the prosecution and leving thereof; and great inconveniences would thereon follow, if penal laws should be transferred to subjects. 1. Justice thereby would be scandalized ; for when such forfeitures are granted, or promised to be granted before they are recovered, it is the cause of a more violent and undue proceeding. 2. When it is publicly known that the forfeiture and penalty of the act is granted, it is a great cause that the act itself is not executed ; for the Judge and Jurors, and every other is thereby discouraged, 3. It will thereupon follow, that no penalty will by any act of Parliament be given to the King, but limited to such uses with which the King cannot dis- pense. And hereupon divers who had sued to have the benefit of certain penal laws, were upon this resolution denied. And the certificate of all the Judges of England concerning such grants of penal laws, and statutes, was in these words (5). “ May it please your Lordships, we have (as we are required “ by your honourable letters of the 21st of Octob. last) con- “ ferred and considered among ourselves (calling to us his “ Majesty’s counsel learned) of such matters as were thereby “ referred unto us, and have thereupon with one consent “ resolved for law and conveniency as followeth. 1st, That “ the prosecution and execution of any penal statute cannot “ be granted to any, for that the act being made by the “ policy and wisdom of the parliament for the general good “ of the whole realm, and of trust committed to the King as “ to the head of justice and of the weal public, the same “ cannot by law be transferred over to any subject ; neither “ can any penal statute be prosecuted or executed by his [a) Qu. “purport.” and is not therefore — like the report [b) This letter of the Judges was — a translation from an original drawn up, apparently, in English, expressed in Law French. Dispensing power. * 7 Co. Pep. 37. Action on statute. Mischief of grants of penalties. Certificate of J udges. Grants of penalties. 234 APPENDIX II. Mischief of grants of penalties. 7 Co. Rep. 2 , 1 . Rewards. ‘‘ Majesty’s grant, in other manner or order of proceeding, “ than by the act itself is provided and prescribed : neither “ do vre find any such grants to any in former ages : and of “ late years, upon doubt conceived, that penal laws might be “ sought to be granted over, some Parliaments have forborn “ to give forfeitures to the crown, and have disposed thereof “ to the relief of the poor, and other charitable uses, which “ cannot be granted or employed otherwise. We are also of “ opinion, that it is inconvenient, that the forfeitures upon “ penal laws, or others of like nature, should be granted to “ any, before the same be recovered or vested in his Majesty ‘‘ by due and lawful proceeding ; for that in our experience “ it maketh the more violent and undue proceeding against “ the subject, to the scandal of justice, and the offence of many. “ But if by the industry or diligence of any, there accrueth “ any benefit to his Majesty, after the recovery, such have “ been rewarded out of the same at the King’s good pleasure, “ &c. Dated 8 Novemb. 1604.” And to this letter all the Judges of England set their hands. 235 Appendix III. PAGE 1. STATUTE OF MONOPOLIES (2lJa. 1, c. 3) 235 2. SELECTED PASSAGES FROM THE PATENTS, DESIGNS, , AND TRADE MARKS ACT, 1883 (46 & 47 Viet. c. 57, ss. 22, part of 26, 29, 30, 31, 32, part of 33, 46, 84, part of 117, and Sched. I. Form D.) 242 3. PATENTS RULES, 1890, relating- to proceedings upon a Petition to the Board of Trade for an Order under the 22nd section of the Patents Act 247 I.— STATUTE OF MONOPOLIES. (21 Ja. 1, c. 3. A.D. 1623-4.) An Act concerning Monopolies and Dispensations ivith penall Lawes and the Forfeyture thereof. Forasmuch as your most excellent Majestie in your royall judg- ment and of your blessed disposicion to the weale and quiet of your subjects, did, in the yeare of our Lord God one thousand six hundred and ten, publish in print to the whole Realme and to all posteritie, that all graunts of monapolyes {a) and of the benefitt of any penall lawes, or of power to dispence with the lawe, or to com- pound for the forfeiture, are contrary to your Majesties lawes, which your Maj esties declaracion is truly consonant and agreeable to the auncient and fundamental! lawes of this your Realme : And whereas your Majestie was further graciously pleased expressely to commaund that noe suter should presume to move your Majestie for matters of that nature ; yet nevertheles uppon misinformacions and untrue pretences of publique good, many such graunts have bene undulie obteyned and unlawfullie putt in execucion, to the greate greevance and inconvenience of your Majesties subjects, contrary to the lawes of this your Realme, and contrary to your (a) Spelt “Monopohes,” in the Library of Trinity College, Cam- copy to the statute preserved in the bridge. The King’s declaration against monopolies and grants of penalties and dispen- sations. 236 APPENDIX III. All mono- polies, and grants, &c. thereof, or of dispen- sations and penalties, declared void. Validity of all monopo- lies, and of all such grants, &c. shall he tried hy the com- mon law. All persons disabled to use such grants, monopolies, &c. Majesties royall and blessed intencion see published as aforesaid: Por avoyding whereof and preventinge of the like in tyme to come, may it please your most excellent Majestie at the humble suite of the lords spirituall and temporall and the commons in this present Parliament assembled, that it may be declared and enacted, and be it declared and enacted by the authoritie of this present Parliament, that all monapolyes (a) and all commissions graunts licences char- ters and letters patents heretofore made or graunted, or hereafter to be made or graunted to any person or persons bodies politique or corporate whatsoever of or for the sole buyinge selhnge makinge workinge or usinge of any thinge within this Pealme or the dominion of Wales, or of any other monopolies, or of power libertie or facultie to dispence with any others, or to give licence or toler- acion to doe use or exercise any thinge against the tenor or purport of any lawe or statute, or to give or make any warrant for any such dispensacion licence or toleracion to be had or made, or to agree or compound with any others for any penaltie or forfeitures lymitted by any statute, or of any graunt or promise of the benefitt profitt or commoditie of any forfeiture penaltie or somme of money that is or shalbe due by any statute before judgment thereuppon had, and all proclamacions inhibicions restraints warrants of assis- tance and all other matters and things whatsoever anyway tendinge to the institutinge erecting strengtheninge furtheringe or coun- tenancinge of the same or any of them, are altogether contrary to the lawes of this Eealme, and so are and shalbe utterlie void and of none effecte, and in noe wise to be putt in ure or execucion. II. And [be it further declared and enacted by the authoritie aforesaid that] (b) all monopolies and all such commissions graunts licences charters letters patents proclamacions inhibicions restraints warrants of assistance and all other matters and things tendinge as aforesaid, and the force and validitie of them and every of them ought to be, and shalbe for ever hereafter examyned heard tryed and determined by and accordinge to the common lawes of this Eealme & not otherwise. III. And [be it further enacted by the authoritie aforesaid that](&) all person and persons bodies politique and corporate whatsoever, which now are or hereafter shalbe, shall stand and be disabled and uncapable to have use exercise or putt in ure any monopolie or any such commission graunt licence charters letters patents procla- (a) Spelt “ Monopolies ” in the copy to the statute preserved in the Library of Trinity College, Cambridge. (b) These words within brackets [ ] were repealed by the S. L. E. Act, 1888 (51 Viet. c. 3, s. 1, Sch. Pt. I.). STATUTE OF MONOPOLIES. 237 macion inhibicion restraint warrant of assistance or other matter or tbinge tendinge as aforesaid or any libertie power or facultie grounded or pretended to be grounded upon them or any of them. IV. And [be it further enacted by the autboritie aforesaid that] (c) if any person or persons at any tyme after the end of fortie dayes next after the end of this present session of Parliament sbalbe bindred greeved disturbed or disquieted, or bis or their goods or cbattells any way seised attached distreyned taken carryed away or deteyned by occasion or pretext of any monopolie, or of any such commission graunt licence power libertie facultie letters patents proclamacion inbibicion restraint warrant of assistance or other matter or tbinge tendinge as aforesaid, and will sue to be relee ved in or for any of the premisses, that then and in every such case the same person and persons shall and may have bis and their remedie for the same at the common lawe, by any accion or accions to be grounded uppon this statute, the same accion and accions to be beard and determyned in the Courts of Kings Bench Common Pleas and Exchequer, or in any of them, against him or them by whome he or they sbalbe so bindred greeved disturbed or disquieted, or against him or them by whome his or their goods or chattells sbalbe soe seized attached distrayned taken carried away or deteyned, wherein all and every such person and persons which sbalbe soe bindred greeved disturbed or disquieted, or whose goods or chattells sbalbe soe seised attached distrayned taken or carryed away or detayned, shall recover three tymes soe much as the damages which he or they susteyned by means or occasion of beinge soe bindred greeved disturbed or disquieted, or by meanes of havinge his or their goodes or chattells seised attached distrayned taken carryed away or deteyned, in {d) double costs ; and in such suits, or for the staying or delaying thereof, noe essoine proteccion wager of lawe ay deprayer priviledge injunccion or order of restraint sbalbe in any wise prayed graunted admitted or allowed, nor any more than one imperlance ; and if any person or persons shall, after notice given that the accion dependinge is grounded uppon this statute, cause or procure any accion at the common lawe grounded uppon this statute to be stayed or delayed before judgement, by coulor or meanes of any order warrant power or autboritie, save onely of the Court wherein such accion as aforesaid sbalbe brought and de- pendinge, or after judgement had uppon such accion, shall cause or (c) These words within brackets [ ] were repealed by the S. L. R. Act, 1888 (51 Viet. c. 3, s. 1, Sch. Pt. I.). The word “in” here is omitted from the copy of the sta- tute preserved in the Library of Trinity College, Cambridge. Party ag- grieved by any mono- poly or grant, &c. shall recover treble da- mages by action in the Superior Courts with double costs. Penalty on unduly de- laying any such action, &c., prae- munire under St. 16 Rich. 2, c. 5. 238 APPENDIX III. Proviso for existing patents for twenty-one years or less, for new inventions. Proviso for future patents for fourteen years or less, for new inventions. procure tlie execution of or uppon any such, judgement to be stayed or delayed by coulor or meanes of any order warrant power or autboritie, save onelie by writt of error or attaint, that then tbe said person and persons soe offendinge shall incurre and sustaine the paines penalties and forfeitures ordeyned and provided by the Statute of provision and premunire made in the sixteenth yeare of the raigne of King Eicharde the Second. [V. Provided neverthelesse and be it declared and enacted, that any declaracion before mentioned shall not extend to any letters patents, and graunts of priviledge for the tearme of one-and-twentie yeares or under, heretofore made of the sole workinge or makinge of any manner of newe manufacture within this Eealme, to the first and true inventor or inventors of such manufactures which others att the tyme of makinge of such letters patents and graunts did not use soe they be not contrary to the lawe nor mischievous to the State by raisinge of the prices of commodities at home, or hurt of trade, or generallie inconvenient, but that the same shalbe of such force as they were or should be if this Act had not bene made and of none other ; ^ind if the same were made for more than one and twentie yeares, that then the same for the tearme of one and twentie years onely, to be accompted from the date of the first letters patents and graunts thereof made, shalbe of such force as they were or should have byn yf the same had bene been (c) made but for tearme of one-and-twentie yeares onely, and as if this act had never bene had or made, and of none other.] (cZ). VI. Provided alsoe [and be it declared and enacted,] (e) that any declaracion before mencioned shall not extend to any letters patents and graunts of privilege for the tearme of fowerteen yeares or under, hereafter to be made of the sole working or makinge of any manner of new manufactures within this Eealme, to the true and first inventor and inventors of such manufactures, which others at the tyme of makinge such letters patents and graunts shall not use, soe as alsoe they be not contrary to the lawe nor mischievous to the State, by raisinge prices of commodities at home, or hurt of trade, or generallie inconvenient; the said fourteene yeares to be (accomplished) (/) from the date of the first letters patents or (c) So in Statutes or the Eeal:m, 1819 Edition. {d) The fifth section was re- pealed by the S. L. E. Act, 1863 (26 & 27 Viet. c. 125, s. 1). [e) The words within brackets [ ] were repealed by the S. L. E. Act, 1888 (51 Viet. c. 3, s. 1, Seh. Pt. I.). (/) The copy of the statute pre- served in the Library of Triuity College, Cambridge, reads “ ac- compted” here. STATUTE OF MONOPOLIES. 239 grant of such priviledge hereafter to he made, hut that the same shall he of such force as they should he if this Act had never hyn made, and of none other. YII. Provided alsoe, [and it is hereby further intended declared and enacted hy the authoritie aforesaid] ( g) that this Act or any- thing therein conteyned shall not in anywise extend or he prejudicial! to any graunt or priviledge power or authoritie whatso- ever heretofore made graunted allowed or confirmed hy any Act of Parliament now in force, so long as the same shall so continue in force. YIII. Provided alsoe, that this Act shall not extend to any warraunt or privie seale made or directed, or to he made or directed hy his Majestie his heirs or successors, to the Justices of the Courts of the King’s Bench or Common Pleas, and Barons of the Exchequer, Justices of assize. Justices of oyer and terminer, and goale deliverie Justices of the peace, and other justices for the tyme being, having power to hear and determyne offences done against any penall statute, to compound for the forfeitures of any penall statute de- pending in suite and question before them or any of them respec- tively, after plea pleaded hy the partie defendant. IX. Provided alsoe, [and it is hereby further intended declared and enacted] {li), that this Act or any thing therein contayned shall not in any wise extend or he prejudicial! unto the city of London, or to any cittie borough or towne corporate within this Eealme, for or concerning any graunts charters or letters patents to them or any of them made or granted, or for or concerning any custome or customes used hy or within them or any of them, or unto any corporacions companies or fellowshipps of any art trade occupacion or mistery, or to any companies or societies of merchants within this Pealme, erected for the mayntenance enlargement or ordering of any trade of merchandize, hut that the same charters customes corporacions companies fellowshipps and societies, and their liberties priviledges power and immunities, shalbe and continue of such force and effect as they were before the making of this Act, and of none other ; Any thing before in this Act contayned to the contrary in any wise notwithstanding. X. (f) Provided also and he it enacted, that this Act or any declaracion provision disablement penaltie forfeiture or other thing before mencioned, shall not extend to any letters patents [g) The words within brackets [ ] were repealed hy the S. L. R. Act, 1888 (51 Yict. c. 3), s. 1, Sch. Pt. I. (A) Repealed S. L. R. Act, 1888 (51 Yict. c. 3, s. 1, Sch. Pt. I.). (i) Sects, 10 — 12 were repealed by the Patents Act, 1883 (46 &47 Yict. c. 57, s. 113, and Sch. 3). Proviso for existing grants by Act of Par- liament. Proviso for warrants to justices to compound penalties. Proviso for charters of London and other corpo- rations. Proviso for patents con- cerning print- ing, saltpetre, 240 APPENDIX III. gunpowder, ordnance, &c. and grants of offices. Proviso for patents, «&;c. concerning allum mines. Proviso for customs, &c. of hoastmen of Newcastle as to coals. or grants of priviledge heretofore made or hereafter to he made of for or concerning printing ; nor to any commission grannt or letters patents heretofore made or hereafter to be made of for or concerning the digging making or compounding of salt- peter or gunpowder ; or the casting or making of ordinance or shot for ordinance ; nor to any graunt or letters patents here- tofore made or hereafter to be made of any office or offices heretofore erected made or ordayned, and now in being and put in execucion, other then such offices as have been decryed by any his Majesties proclamacion or proclamacions ; but that all and every the same graunts commissions and letters patents, and all other matters and things tending to the maynteyning strengthening or furtherance of the same or any of them, shalbe and remayne of the like force and effect, and no other, and as free from the declaracions provisions penalties and forfeitures contayned in this Act, as if this Act had never ben had nor made, and not otherwise. XI. {h) Provided also and be it enacted, that this Act or any declaracion provision disablement penaltie forfeiture or other thing before mencioned, shall not extend to any com- mission graunt letters patents or privilege heretofore made or hereafter to be made of for or concerning the digging com- pounding or making of allome or allome mynes, but that all and every the same commissions graunts letters patents and privileges shalbe and remayne of the like force and effect, and no other, and as free from the declaracions provisions penalties and forfeitures conteyned in this Acte, as if this Act had never byn had nor made, and not otherwise. XII. {h) Provided also and be it enacted, that this Act or any declaracion provision penaltie forfeiture or other thing before mencioned, shall not extend or be prejudicial! to any use custome prescripcion franchise freedome jurisdiccion im- munitie libertie or priviledge heretofore claymed used or enjoyed by the governors and stewards and brethren of the f ellowshippe of the hoastmen of the town of Newcastle uppon Tyne, or by the auncient fellowshipp guild or fraternitie commonlie called hoastmen ; for or concerning the selling carrying lading disposing shipping venting or trading of or for any seacoales stonecoales or pitcoales forth or out of the haven and ryver of Tyne; or to a graunt made by the said governor and stewards {h) Sects. 10 — 12 were repealed by the Patents Act, 1883 (46 & 47 Viet, c. 57, s. 113, Sch. 3). STATUTE OF MONOPOLIES. 241 and brethren of the fellowsbipp of the said hoastmen to the late Queene Elizabeth, of any dutie or somme of mony to be paid for or in respect of any such coales as aforesaid ; nor to any graunts letters patents or commission heretofore graunted or hereafter to be graunted of for or concerning the licensing of the keepinge of any taverne or tavernes or selling uttering or retayling of wines to be drunke or spent in the mansion house or houses, or other place, in the tenure or occupacion of the partie or parties so selling or uttering the same ; or for or concerning the making of any composicions for such licenses, so as the benefitt of such composicions be reserved and applyed to and for the use of his Majestie, his heirs or successors, and not to the private use of any other person or persons.] XIII. (^) Provided alsoe and be it enacted, that this Acte or any declaracion provision penaltie forfeiture or other thing before men- tioned shall not extend or be prejudicial! to a graunt or priviledge for or concerning the making of glasse by his Majesties letters patents under the Greate Seale of England bearing date the two and twentith day of May in the one and twentith yeare of his Majesties raigne of England made and graunted to Sir Eobert Maunsell Knight, Yice Admirall of England ; nor to a graunt or letters patents bearing date the twelveth day of June in the thir- teenth yeare of his Majesties raigne of England, made to James Maxwell Esquire, concerning the transportacion of Calves Skinnes but that the said severall letters patents last mencioned shalbe and remaine of the like force and effect, and as free from the declara- cions provisions penalties and forfeitures before mencioned as if this Acte had never byn had nor made and not otherwise. XIV. (^) Provided also and be it declared and enacted that this Act or any declaracion provision penaltie forfeiture or other thing before mencioned shall not extend or be prejudicial! to a graunt or priviledge for or concerning the making of Smalt by his Majesties letters patents under the greate Seale of England bearing date the sixteenth day of February in the sixteenth yeare of his Majesties raigne of England made or graunted to Abraham Baker ; nor to a graunt of priviledge for or concerning the melting of Iron Ewer and of making the same into castworkes or barres with seacoales or pitcoales by his Majesties letters patents under the great seale of England bearing date the twentith day of Eebruarie in the nyneteenth yeare of his Majesties raigne of England, made or (i) Sects. 13 and 14, although not printed among the pubhc general repealed, are treated as personal Acts. See 1 Eevised Statutes, 1888, enactments, and, as such, are not p. 570. G. Licences for taverns, &c. Proviso for grant for glass making. Exportation of calves skins. Proviso for grant for making smalts. Melting iron ore. R 242 APPENDIX III. Power for Board to order grant of licenses. Revocation of patent. grauntedto Edward Lord Dudley, but that tbe same severall letters patents and graunts sbalbe and remayne of the like force and effect and as free from the declaracions provisions penalties and forfeitures before mencioned as if this Act had never byn had nor made, and not otherwise. II. — Selected passages from the Patents, Designs, and Trade Marks Act, 1883 (46 & 47 ViCT. c. 57). Comjpulsory Licenses, 22. If on the petition of any person interested it is proved to the Board of Trade that by reason of the default of a patentee to grant licenses on reasonable terms — (a.) The patent is not being worked in the United Kingdom ; or (b.) The reasonable requirements of the public with respect to the invention cannot be supplied ; or (c.) Any person is prevented from working or using to the best advantage an invention of which he is possessed, the Board may order the patentee to grant licenses on such terms as to the amount of royalties, security for payment, or otherwise, as the Board, having regard to the nature of the invention and the circumstances of the case, may deem just, and any such order may be enforced by mandamus. Revocation. 26. (1.) The proceeding by scire facias to repeal a patent is hereby abolished. (2.) Revocation of a patent may be obtained on petition to the Court (o.) The plaintiff (a) must deliver with his petition particulars of the objections on which he means to rely, and no evidence shall, except by leave of the Court or a judge, be admitted in proof of any objection of which particulars are not so delivered. (6.) Particulars delivered may be from time to time amended by leave of the Court or a judge. (7.) The defendant (6) shall be entitled to begin, and give evidence in support of the patent, and if the plaintiff gives («) “ Plaintiff ” in this place, of course, signifies the petitioner. PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883. 243 evidence impeaching the validity of the patent the defendant shall he entitled to reply Legal Proceedings. 29. (1.) In an action for infringement of a patent the plaintiff must deliver with his statement of claim, or by order of the Court or the judge, at any subsequent time, particulars of the breaches com- plained of. (2.) The defendant must deliver with his statement of defence, or, by order of the Court or a judge, at any subsequent time, particulars of any objections on which he relies in support thereof. (3.) If the defendant disputes the validity of the patent, the particulars delivered by him must state on what grounds he disputes it, and if one of those grounds is want of novelty must state the time and place of the previous publication or user alleged by him. (4.) At the hearing no evidence shall, except by leave of the Court or a judge, be admitted in proof of any alleged infringement or objection of which particulars are not so delivered. (5.) Particulars delivered may be from time to time amended, by leave of the Court or a judge. (6.) On taxation of costs regard shall be had to the particulars delivered by the plaintiff and by the defendant ; and they respec- tively shall not be allowed any costs in respect of any particular delivered by them unless the same is certified by the Court or a judge to have been proven or to have been reasonable and proper, without regard to the general costs of the case. 30. In an action for infringement of a patent, the Court or a judge may on the application of either party make such order for an injunction inspection or account, and impose such terms and give such directions respecting the same and the proceedings thereon as the Court or a judge may see fit. 31. In an action for infringement of a patent, the Court or a judge may certify that the validity of the patent came in question ; and if the Court or a judge so certifies, then in any subsequent action for infringement, the plaintiff in that action on obtaining a final order for judgment in his favour shall have his full costs charges and expenses as between solicitor and client, unless the Court or judge trying the action certifies that he ought not to have the same. 32. Where any person claiming to be the patentee of an inven- tion, by circulars advertisements or otherwise threatens any other Delivery of particulars. Order for inspection, &c. in action. Certificate of validity questioned and costs thereon. Remedy in case of groundless (h) “ Defendant” in this place, of course, signifies the respondent. R 2 244 APPENDIX III. threats of legal pro- ceedings. Definitions of patent, patentee, and invention. Seal of patent office. General definitions. person with any legal proceedings or liability in respect of any alleged manufacture use sale or purchase of the invention, any person or persons aggrieved thereby may bring an action against him, and may obtain an injunction against the continuance of such threats, and may recover such damage (if any) as may have been sustained thereby, if the alleged manufacture, use, sale, or purchase to which the threats related was not in fact an infringement of any legal rights of the person making such threats : Provided that this section shall not apply if the person making such threats with due diligence commences and prosecutes an action for infringement of his patent. Miscellaneous. 33. Every patent may be in the form in the First Schedule to this Act Definitions. 46. In and for the purposes of this Act — “ Patent ” means letters patent for an invention : “ Patentee ” means the person for the time being entitled to the benefit of a patent : “ Invention ” means any manner of new manufacture the subject of letters patent and grant of privilege within section six of the Statute of Monopolies (that is, the Act of the twenty-first year of the reign of King James the First, chapter three, intituled “ An Act concerning monopolies and dispensations with penal laws and the forfeiture thereof ”), and includes an alleged invention. In Scotland “ injunction” means “interdict.” General. 84. There shall be a seal for the patent office, and impressions thereof shall be judicially noticed and admitted in evidence. General Definitions. 117. (1.) In and for the purposes of this Act, unless the context otherwise requires, — “ Person” includes a body corporate : “The Court” means (subject to the profusions for Scotland, Ireland, and the Isle of Man) Her Majesty’s High Court of Justice in England : “Law Officer” means Her Majesty’s Attorney- General or Solicitor-General for England : “The Treasury” means the Commissioners of Her Majesty’s Treasury : “Comptroller” means the Comptroller General of Patents, Designs, and Trade Marks : PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883. 245 FORM D. Form of Patent. (c) Victoria, by the grace of Grod, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith : To all to whom these presents shall come greeting : Whereas John Smith, of 29, Perry Street, Birmingham, in the county of Warwich, Engineer, hath by his solemn declaration represented unto us that he is in possession of an invention for “ Improvements in Seiving Machines, that he is the true and first inventor thereof, and that the same is not in use by any other person to the best of his knowledge and belief : And whereas the said inventor hath humbly prayed that we would be graciously pleased to grant unto him (hereinafter together with his executors, administrators, and assigns, or any of them, referred to as the said patentee) our Royal Letters Patent for the sole use and advantage of his said invention : And whereas the said inventor hath by and in his complete specification particularly described the nature of his invention : And whereas we being willing to encourage all inventions which may be for the public good, are graciously pleased to condescend to his request : Know ye, therefore, that We, of our especial grace, certain knowledge, and mere motion do by these presents, for us, our heirs and successors, give and grant unto the said patentee our especial license, full power, sole privilege, and authority, that the said patentee by himself, his agents, or licensees, and no others, may at all times hereafter during the term of years herein mentioned, make, use, exercise, and vend the said invention within our United Kingdom of Great Britain and Ireland, and Isle of Man, in such manner as to h i m or them may seem meet, and that the said patentee shall have and enjoy the whole profit and advantage from- time to time accruing by reason of the said invention, during the term of fourteen years from the date hereunder written of these presents : And to the end that the said patentee may have and enjoy the sole use and exercise and the full benefit of the said invention, We do by these presents for us our heirs and successors, strictly command all our subjects whatsoever within our United Kingdom of Great Britain and Ireland, and the Isle of Man, that they do not at any time during the continuance of the said term of fourteen years either directly or indirectly make use of or put in (c) For commentary, see above, Chap. V., pp. 106 — 132. 246 APPENDIX III. practice the said invention, or any part of the same, nor in anywise imitate the same, nor make or cause to be made any addition thereto or subtraction therefrom, whereby to pretend themselves the in- ventors thereof, without the consent license or agreement of the said patentee in writing under his hand and seal, on pain of incurring such penalties as may be justly inflicted on such offenders for their^ contempt of this our Eoyal command, and of being answerable to' the patentee according to law for his damages thereby occasioned : Provided that these our letters patent are on this condition, that, if at any time during the said term it be made to appear to us, our heirs, or successors, or any six or more of om’ Privy Council, that this our grant is contrary to law, or prejudicial or inconvenient to our subjects in general, or that the said invention is not a new invention as to the public use and exercise thereof within our United Kingdom of Great Britain and Ireland, and Isle of Man, c^r that the said patentee is not the first and true inventor thereof within this realm as aforesaid, these our letters patent shall forthwith determine, and be void to all intents and purposes, not- withstanding anything hereinbefore contained : Provided also, that if the said patentee shall not pay all fees by law required to be paid in respect of the grant of these letters patent, or in respect of any matter relating thereto at the time or times, and in manner for the time being by law provided ; and also if the said patentee shall not supply or cause to be supplied, for qur service all such articles of the said invention as may be required by the officers or com- missioners administering any department of our service in such manner, at such times, and at and upon such reasonable prices and terms as shall be settled in manner for the time being by law provided, then, and in any of the said cases, these our letters patent, and all privileges and advantages whatever hereby granted shall determine and become void notwithstanding anything hereinbefore contained : Provided also that nothing herein contained shall prevent the granting of licenses in such manner and for such con- siderations as they may by law be granted : And lastly, we do by these presents for us, our heirs and successors, grant unto the said , patentee that these our letters patent shall be construed in the most beneficial sense for the advantage of the said patentee. In witness whereof we have caused these our letters to be made patent this one thousand eight hundred and and to be sealed as of the one thousand eight hundi’ed and (Seal of Patent Office.) PATENTS RULESj 1890. 247 III. — PATENTS EULES, 1890, relating to PROCEEDINGS UNDER THE 22nD SECTION OF THE Patents Act. These Rules are made by virtue of the authority given to the Board of Trade by section 101 of the Patents, &c. Act of 1883 (46 & 47 Yict. c. 57), as follows : — 101. (1) The Board of Trade may from time to time make such Power for general rules and do such things as they think expedient, subject Trade To to the provisions of this Act — .... make general {g) Generally for regulating the business of the Patent OflB.ce, for . . . and all things by this Act placed under the direction or control of the comptroller, or of the Board of Trade. ness of patent office. Compulsory Licenses. 60. A petition to the Board of Trade for an order upon a patentee to grant a license shall show clearly the nature of the petitioner’s interest, and the ground or grounds upon which he claims to be entitled to relief, and shall state in detail the circumstances of the case, the terms upon which he asks that an order may be made, and the purport of such order. 61. The petition and an examined copy thereof shall be left at the Patent Oflfice, accompanied by the aflfidavits, or statutory declarations, and other documentary evidence (if any) tendered by the petitioner in proof of the alleged default of the patentee. 62. Upon perusing the petition and evidence, unless the Board of Trade shall be of opinion that the order should be at once refused, they may require the petitioner to attend before the comptroller, or other person or persons appointed by them, to receive his or their directions as to further proceedings upon the petition. 63. If and when a primd facie case for relief has been made out to the satisfaction of the Board of Trade, the petitioner shall upon their requisition, and on or before a day to be named by them, deliver to the patentee copies of the petition and of the aflfidavits or statutory declarations and other documentary evidence (if any) tendered in support thereof. 64. Within fourteen days after the day of such delivery the patentee shall leave at the Patent Oflfice his aflfidavits or statutory declarations in opposition to the petition, and deliver copies thereof to the petitioner. Petition for compulsory grant of licenses. To be left with evi- dence at Patent Oflfice. Directions as to further proceedings unless peti- tion refused. Procedure. Petitioner’s evidence. Patentee’s evidence. 248 APPENDIX ni. / Evidence in reply. Further proceedings. 65. The petitioner within fourteen days from such delivery shall leave at the Patent Ofldce his affidavits, or statutory declarations in reply, and deliver copies thereof to the patentee; such last- mentioned affidavits or declarations shall be confined to matters strictly in reply. 66. Subject to any further directions which the Board of Trade may give the parties shall then be heard at such time, before such person or persons, in such manner, and in accordance with such procedure as the Board of Trade may, in the circumstances of the case, direct, but so that full opportunity shall be given to the patentee to show cause against the petition. Extract from Form H . : — Form of Application for Compulsory Grant of License. .... hereby request you to bring to the notice of the Board of Trade the accompanying petition for the grant of a license to me by ... . To the Comptroller, Patent Office. Extract from Form H. 1 : — Form of Petition for Compulsory Grant of Licenses. To the Lords of the Committee of Privy Council for Trade. The Petition of ... . Showeth as follows : — {For the substance of the petition see above, p. 100.) Form I. Is a form of opposition to the compulsory grant of license in the shape of a letter addressed to the Comptroller at the Patent Office. 249 Appendix IV. ILLUSTEATIVE DOCUMENTS. PAGE Sect. 1. — ^Patent 249 2. — Proclamation 262 3. — Dispensation 263 4. — Protection 264 — ♦ Sect. 1.— FORM OF THE PATENT GRANT. For the purpose of this illustration the Patent to John Gilbert for a water plough, granted by King James I. in 1618, is set out as a model, and the various extracts which it is proposed to bring to bear upon it by way of illustration are interpolated at appropriate places. The patent to Jno. Gilbert is taken from Eymer’s Eoedera, vol. 17, fo. 102. Eymer’s reference to the original enrolment is A.D. 1618, Pat. 16, J. 1, p. 5. De concessione lihertatis Johanni Gilbert super machina ad promendum aquas inventa, James by the grace of Giod &c. to all to whom these presents shall come, Greeting, Whereas our wellheloved subject John Gilbert through Eecitalof his great Industry Travaile and Charge in forraigne kingdoms and countries hath attayned invented and found out a certain new engine or instrument called or termed a water plough for the taking up of Sand Grravell Dredger. Shelves or Banckes out of the Eiver of Thames and other Havens Harbors Rivers or Waters wherewith they are choaked for the freer passage and safety of shipps and other vessells and whereas our said subject hath at his like Industrie Travaile and charges invented another Engine 250 APPENDIX IV. Pump. Utility. Considera- tion. Public good. Bounty. Petition. Especial grace, «S:c. Grant of or Instrument for the raising of "Waters in a greater quan- titie and to a greater height than heretofore hath bin knowne or practised in these our Eealmes which said Engin for raising of Waters is to he moved and driven either by some Current or Streame of Water, or, for want thereof, by strength of Horses and is very necessarye for the drawing and draining of Coal Pits and other Hines. And whereas it is supposed that the said several Engines are the proper invention of the said John Gilbert and are likely to prove of good and necessary use for the Service and Benefit of this our Realme. Know ye therefore that Wee Tendring the common Grood and Benifit that may redound hereby to our said Realme and Subjects and intending to reward and recompence the Industrie Travaile and Charges of the said John Gilbert bestowed and expended in and about the investigation and fynding out of the said Inventions Ensigns or Instruments above mentioned and the better to incourage other of our Sub- jects in such lawful! and commendable Labours and Indeavors as may tend to good Use and Service in this our Realme, without just cause of Creivance to anie our Subjects, at the humble Petition of the said John Gilbert, and in consideration of the yerelie Rent in and by these Presents reserved and payable to Us our Heires and Successors, This recital of tbe Boval regard for the public good in tke grant of tke patent may be compared -witk tke considerations recited as leading up to tke grant of an ordinary trade ckarter, and tke following extract from tke ckarter of Edward III. to tke Drapers’ Company of London may seiwe as an illustration : — (a) And wkereas it kas been skown to us and to our Council tkat people of divers mysteries of tke City of London intermix tkemselves witk tke Mystery of Drapery and cause divers deceits and fraudes in tke use of tke same mystery to tke great damage of us and of our people. . . . Of our especial Grrace, certain knowledge and meere Motion, have given and graunted, and, by these Presents, for Us our Heires and Successors, doe give and graunte full (a) 1 Herbert, 480. FORM OF THE PATENT GRANT. 251 and sole Licence, Power, Priviledge and Authoritie unto power to the said John Oilbert his Executors Administrators and Assignes, that he the said John Gilbert^ his Exqcutors Administrators and Assigns, onely and none other by him or themselves or by his or there deputies servants workemen or agents, at all tymes and from tyme to tyme for and during the term of yeres hereafter in and by these presents graunted shall and may within this our Eealme ’of England and dominion of Wales freelie and lawfully (b) make forme erect and frame the said Engine or Instrument called a Water Plough or by what other name the same shall be called or soe many of the same as he shall think meete for taking upp of sandes gravell shelves or bankes out of the said Eiver of Thames and other havens harbors or rivers wherewith they are hindered or choked ; and alsoe the said other Engine or Instrument to be moved or driven by some Current of Water, or in default thereof by the Strength and Labor of Horses, for the ray sing of Waters and drawing and drayning of Colepits and other Mynes herein before mentioned ; (b) Freelie and lawfully. This licence to carry on the industry freely signifies, I “ Freely and apprehend, unfettered by any trade regulations such as the Fellowships imposed upon their members and sometimes upon other craftsmen. The idea is expressed in many different ways in patent grants. In Ramsay’s patent, for example, the King grants “ full and free licence, privilege, power and authority ” (&). In Mansell’s Glass Patent (21 Ja. 1.) it was “full and free liberty license, &c., at his will and pleasure ... to use, exercise, practise, set up and put in use the art, feat and mystery of making all manner of drinking glasses, &c. and throughout this our Realme . . . and within every and any part of them ... to make, erect and set up . . . furnaces &c. (c). The Smalt patent is even more expHcit. There the patentees have “ full, free and lawful power, licence, &c., in all and every county, city, town corporate and other towns, villages, hamlets, and other places exempt as not exempt to make work and compound the said stuff called Smalt, and the same ... to utter, sell and put to sale ... to any fb) Ry. 17 Feed. 122, misnum- (f) I W. P. C. 21. bered 722 in the original edition. / 252 APPENDIX IV. A counter- vailing privilege. Bearing of the grant on trading privileges. Nature of trading privileges. painters, linmers or other persons whatsoever within this our Bealm or any part thereof . . . any law, statute, act of parliament, proclamation, restraint or any other matter, cause, or thing whatsoever to the contrary notwith- standing” (e). That such powers operated in derogation of trading privileges is quite clear upon the history of trade in the Middle Ages. The petition from the Citizens of London and others mentioned in the following passage, extracted from Yiner, may serve the purpose of illustration (/) : — Similarly Eot. Pari. 43 E. 3, ij. The City of London and other Cities and Boroughs petition that in accordance with their ancient franchises none should sell merchandises nor victual at retail if they were not infranchised within the City, and “it was assented that those of London and no other sell at retail victual only, and this of the especial grace of the King till the next Parliament that it be well ruled and governed in the meantime to the common profit, and it is the intention of the King that no prejudice be done to the aliens who have franchises by charters of Kings.” The Complaint of the Stationers’ Company concerning Eoger Woodde’s patent mentioned above {g) is another case in point. On the other hand the importance to the patentee of being freed from interference on the part of the Fellowships and Guilds in the development of a new industry is manifest at a glance. It has only to be borne in mind that a trading company’s charter quite commonly conferred power upon the •Court of Assistants to “frame, constitute, ordain and make from time to time reasonable laws, statutes, ordinances, decrees and constitutions which to them [twelve] shall seem to be good, wholesome, useful, honest and necessary accord- ing to their sound discretions for the good rule, direction, government and correction of .... all other persons .... exercising and using the said mystery ”(A). An inventor whose invention had any merit from the point of view of the great public would be pretty sure to be cor- rected out of existence by the petty public whose trade he (e) 1 W. P. C. 9. If) Vin. Ab., tit. Prerogative of the King (U. c.) 5. (ff) See above, p. 122. (h) Drapers’ Charter of 4 Ja. 1 ; 1 Herbert, 489. FORM OF THE PATENT GRANT. 253 proposed to improve under a discipline of this domestic order. And the same Engines and Instruments, so to be made formed and framed, shall and may lawfullie and solye exercise, use and ymploye to and for the intents and pur- poses aforesaid within our said Eealme of England and Dominion of Wales, and in everie part thereof, to and for his and there most Benifit Profit and Advantage, and the said Sands, Grravell, Banks or Shelves, by the use and helpe of the said Water Plough so to be taken upp as aforesaid, to land and lay on Shore, or otherwise to dispose of at his or their Will and Pleasure, and for his and there best Benifit and Advantage. And that he the said John Gilbert his Executors Ad- ministrators and Assignes, by him or themselves, or his or there Deputyes, Servants, Workmen or Agents, after the same severall Engines and Instruments or either of them shall be by him or them made formed and framed as afore- said, shall and may lawfullie for his or there Benifit, and at his and their Wills and Pleasures, within this our Eealme of England and Dominion of Wales, graunte or dispose of the same to anie Person or Persons that shall bee desirous or willing to have or use the same for anie the intents and purposes aforesaid. And, To the ende that the said John Gilbert his Executors Administrators and Assignes may have and enjoye the full and sole Benifit and Commoditie of the making, form- ing, framing, using and disposing of the said severall Engins or Instruments, by him devised and invented as aforesaid, within our said Eealme of England and Dominion of Wales for the terme of Yeres by theis Presents graunted, as a Eecompence which We intend the said John Gilbert for his Labor Industry and Charge expended and employed in and about the attaynement of the premisses. To the end that. The importance of this clause as settling the logical connection between the different parts of the patent has been pointed out above (^). As here expressed, it indicates quite clearly that the grant made by the patent Grant of power to use. Grant of power to sell or otherwise dispose of. Inducement. (i) Page 126 . I 254 APPENDIX IV. is to take effect by virtue of tbe probibition following, thus assigning to what has gone before tbe rank of a declaration of intention as against tbe effectual act wbicb is embodied in wbat follows. Tbis significance was more fully developed in tbe later form of tbe patent grant, and is quite unmistakeable in tbe form prescribed by tbe Patent Law Amendment Act of 1852 (^’), wbicb at tbis place ran as follows : — “ And to tbe end that be, tbe said [inventor], bis executors, administra- tors and assigns, and every of them, may bave and enjoy tbe full benefit and tbe sole use and exercise of tbe said invention according to our gracious intention bereinbefore declared,” &c. Inbibition. See above, p. 127. Saving of bcensees. Forfeiture of contraband. See below, p. 258. Our "Will and Pleasure is, and We doe, by these Presents, and in favor of the said John Gilbert his Executors Administrators and Assignes, for Us our Heires and Successors, straitely charge require and comaunde all and everie Person and Persons, of whatsoever Estate, Degree or Condition he or they bee, other then the said John Gilbert his Executors Administrators or Assignes, that they or anie of them shall not or doe not, within this our Eealme of England and Dominion of Wales, or in any parte thereof, for and during the terme of Yeres hereafter in and by these Presents granted, make, erecte, forme or frame the said severall Engins or Instruments herein before mentioned, or either of them, nor shall counterfeite imitate or resemble the same, or either of them, in all or any the Parts or Members of the same, nor shall use exercise or employe, for any the Uses Intents and Purposes aforesaid, any such Engins Instruments or Devises what- soever made or to be made in resemblance or imitation of the said Engins and Instruments of the said John Gilbert herein before mentioned, without the Licence and Consent of the said John Gilbert his Executors Administrators and Assignes in that behalfe first had and obteyned in Writing under his or there Hands and Seales, uppon payne of the Losse and Forfeiture of all and everie such Engins Instru- ments and Devises as shall be so made, erected, framed, used, or imployed contrarie to the true intent and meaning of these Presents ; and also uppon such further Paynes, Penalties, Eynes and Imprisonments, as by the Lawes and Statutes of this our Eealme, or otherwise by our (J) 15 & 16 Viet. c. 83, Scb. FORM OF THE PATENT GRANT. 255 Prerogative Eoyall, can or may be inflicted uppon everie such Offender or Offenders for his or there Contempt Disobedience or Neglect of our Eoyall Pleasure and Commandement in that behaKe. The exclusive rights here granted and the penalties by which they are safeguarded, are in all respects parallel to those conferred by a trade charter, as the following extract from the Drapers’ charter already mentioned will show : — (Z) We . . . have, by the assent of the great and others of Drapers’ our Council, ordained and granted that none shall use the P^'ivileges. Mystery of Drapery in the City of London, nor in the suburbs of the same unless he has been apprenticed in the same mystery, or in other due manner been admitted by the common assent of the same mystery. And that each of the mysteries of tenterers, tisters and fullers keep himself to his own mystery and in no way meddle with the making, buying or selling of any manner of cloth or drapery on pain of imprisonment and loss of all the cloth so by them made, bought, or sold, or the value thereof, to us. Queen Elizabeth, by her charter to the Skinners’ Com- Skinners’. pany(m), granted similar forfeiture of “ all manner of fur found manufactured contrary to these ordinances,” but the forfeits accrued to the mayor and commonalty of the City. Edward III., by his charter to the Fishmongers’ Company Fishmongers’ of London, “ordained, declared, and granted that no man, foreign or denizen, under pain of our great displeasure, meddle in any part of the kingdom with the trade of the Fishmongers, except those only who are of the Mystery of Fishmongers and of the Fish Inquest, and that it shall be in the hands of the Fishmongers in London, and sold in the said three places {n), and that all fish which comes or shall be sold in the said City of London be discharged nowhere but between Billingsgate and London Bridge, on the bridge, and above the said London Bridge, and between Dibble’s Wharf and the Fresh Fish Wharf, and be warehoused, &c. . . . . and no stranger bring fish to the same city, nor take any stand for selling fish if he is not of the folk enfranchised in the said Mystery of Fishmongers.” . . (o). It has been mentioned above (p) that the grant of license See above, p. 118 . (^) 1 Herbert, 480, Char, of E. III. Fish Street and The Stocks. (m) 2 Herbert, 375. (o) 2 Herbert, 119. («) I.e.y at Bridge Street, Old {p) Page 118. 256 APPENDIX IV. Copyright. Habendum. and authority might be of more or less to suit the occasion varying in different patents within considerable limits. This may be illustrated here. The present patent, to Gilbert, grants authority to ‘ ‘ form, erect and frame, to exercise, use and employ and to grant or dispose of ” the two machines which the patentee had invented. The iron smelting patent to Lord Dudley of nearly contemporary date conveyed authority to “use, exercise, practice, and put in use the mystery, art, way, and means of melting iron ore . . . and to make, erect and set up any furnace ... or engine . . . concerning the said mystery, &c., and the iron so made to utter and sell in gross or by retail, or otherwise to do away at his . . . free will and pleasure to his . . . best com- modity and profit ” ( 5 '). The authority conferred by the Smalt patent has been set out above in illustration of the point that these grants were intended to countervail grants of privilege to the Trade Guilds. It may suffice here to add a single extract from a printer’s patent. It will of course be borne in mind that the copyright patents, although relating to a matter so very different from inventions, were nevertheless patents affect- ing trade and tending to monopolies, and were, as such, within the purview of the Statute of Monopolies, so that they needed to be saved by the exception created by the tenth section of the Act. The following is from the patent granted to Helen Mason for printing the Book of Martyrs. It grants “ full, free and sole liberty, license, power, privi- lege and authority, to print or cause to be imprinted, the said book and to publish, utter, sell, and put to sale, or cause to be published, &c. to her most and best benefit ” (r). This form was apparently more accurately settled than the form applicable to inventions, and reappears in substantially identical terms in other similar grants (s). But in the grant to Jno. Speede of the copyright in a certain “Genealogy of the Holy Scriptures and map or chart of the Land of Canaan,” the patentee is limited to the personal selling of his copies and at scheduled prices {t). The grant, therefore, unlike our modern statutable form was framed to suit the individual case when it stood simply on the Common Law. To have, hold, use, exercise and enjoy all and eyerie the {q) 1 W. P. C. 14 and 15. (s) See, e.g., By. 17 Feed. 111. (r) By. 17 Feed. 295. {t) By. 17 Feed. 484. FORM OF THE PATENT GRANT. 257 said Licences, Powers, Priviledges and Authorities, Benifits, Profits and other the Premisses, unto the said Jb/m Gilbert his Executors Administrators and Assignes from the Date of these Presents, for and during the terme, and unto the full ende and terme of One and Twentie Yeres from thence next ensuing fullie to hee compleate and ended ; Yielding and paying therefore unto Us our Heires and Reddendum. Successors, the yerely Pent or Somme of Six Poundes thirteen Shillings and eight Pence of lawfull Money of England at the Peceipt of the Exchequer of Us our Heires and Successors at Westminster at the Eeests of the Birth of our Lord and the Nativitie of Saint John the Baptist, by even and equal Portions. The very modest rent reserved in this case goes to show that this was in fact, as it appears from its terms to have been, an unexceptionable patent. The oppressive patents yielded much larger revenues to the King. For example, under the glass patent of 1613, an annual rent of £1,000 was reserved (m). The gold wire monopoly was estimated capable of yielding £10,000 a year to the Crown [y). But whether the rent were large or small it made the patentee an Accountant of the Crown, and as such gave him a privileged position before the law (cc). And, for the better execution and accomplishment of this our Graunte and gracious intente and meaning to the said John Gilbert, his executors, administrators, and assignes. Wee do by these presents for Us, our heires, and successors, give and graunt unto the said John Gilbert, his executors, administrators, and assignes, and to everie of them, full power and authoritie that he and they and his and there deputies, servants, and agents, shall and may lawfullie from tyme to tyme during the tearme hereby Power of graunted with the assistance of a Constable, Tithing Man, search. Headborough or other lawfull officer of anie place or places whatsoever respectively within our said Pealme of England and Dominion of Wales as well within liberties as with- out at his and their wills and pleasures at fit and convenient tyme or tymes, go and enter into anie House, Shopp, Workehouse, or Yard or other place or places whatsoever, which shall be probably suspected, and there to search and see if any Engins, Instruments or Devises shall be made (m) 1 W. P. C. 19. (y) See above, p. 63. \v) 41 Arch. 256. G. S 258 APPENDIX IV. Forfeiture of contraband. See above, p. 254. The like power of search and forfeiture in the trade charter. Drapers. Goldsmiths. Skinners. formed, framed, used or imployed in resemblance or imita- tion of the said Engins or Instruments herein before mentioned and invented by the said John Gilbert as afore- said, contrarie to the true meaning of these presents, and the same soe founde in the name of Us, our Heires, and Successors to seise take and carrie awaye the one moyetie of which said premisses so forfeyted as aforesaid Wee doe by these Presents give and graunte to the said John Gilbert his Executors Administrators and Assignes to his and there owne proper Use and Benifit, without any Accompt or other thing to bee yielded rendred or paied to Us our Heires or Successors for the same, other then the Pent herein before reserved ; and the other Moyetie thereof to be from tyme to tyme to the Use and Benifit of Us our Heires and Successors. The power of search was commonly conferred by charter upon the incorporated trade fellowships. Thus the Drapers have power to “ enter into all houses, shops, cellars, booths, and other places now or hereafter used or appointed for the keeping or exposing of cloths, of every person or persons, as well free of the same fraternity as free of any other society, or also foreigners using the art or mystery of Drapers within the City of London or the liberties of the same, to search, view and measure, by a sealed standard ... all yards, ells, godes and other measures whatsoever by which any cloth . . . exposed to sale is or shall be measured,” &c., with powers of fine and forfeiture [y). Similarly, the Goldsmiths “ have the search, inspection, trial, and regu- lation of all sorts of gold or silver wrought or to be wrought” (z), and when counterfeits are found, “to arrest, seize, and to break and spoil them ” (a). The Skinners have a right of search ‘ ‘ as well over the men of the mystery of Skinners and over all others whomsoever, the merchandise and merceries of the same mystery, selling, manufacturing or working, as well in our City of London and the suburbs ' of the same, and elsewhere without as in whatsoever i places, sheds, fairs, and markets throughout our Kingdom j of England (&). | These instances may suflBce for the present purpose. The i reader who may be interested to pursue the subject further I will find abundant material in Mr. Herbert’s book. [y) 1 Herbert, 495. {b) Ibid. 380 ; and see the Mer- (z) 2 Herbert, 292. chant Taylors’ charter, 2 Herbert, G) Ibid. 297. 524. FORM OP THE PATENT GRANT. 259 And, of onr further especiall Grrace, certaine Knowledge, and meere Motion, Wee doe, for Us our Heires and Suc- cessors, straitely charge and commaund as well all and everie our J ustices of Peace, Mayors, Sheriffs, Constables, Bayliffs, Headhoroughes, and others our Officers and Ministers within our said Eealme of England and Do- minion of Wales, that they and everie of them shall, from time to time during the terme of Yeares hereby graunted, he ay ding favoring and assisting unto the said John Gilbert his Executors Administrators and Assignes and everie of them, and to his and there Deputies, Servants, Workemen and Agents in and about the due execution of all and singuler the Premisses according to the true intent and meaning of these Presents ; And these our Letters Patents, or the Inrollment thereof, shall be to them and everie of them a sufficient Warrant and Discharge in that behalf e, without any further or other Warrant from Us our Heires and Successors to be had or obteyned in that behalf. This clause also is commonly found in tke trade charters. For example, the Goldsmiths’ charter contains the following clause : “ We also . . . command that all bailiffs, reeves and other officers whatsoever in fairs, markets, cities, boroughs, towns and other places where such search shall happen to be made be ready to aid and assist the said wardens and every of them making such search as aforesaid in the execution of the premises ” (c). Similarly the Grocers’ charter firmly enjoins orders and ^commands “ all and singular, mayors, justices, bailiffs and constables, officers of the mystery and all other our subjects whatsoever that they be aiding, assist- ing and comforting to the said Wardens and Assistants . . . in the making having keeping and executing of all and singular by us to the said Wardens and Commonalty of the Mystery aforesaid . . . granted by these our letters patent and every part and parcel thereof” {d). And further, of our like especiall Grace, certaine Know- ledge and meere Motion, Wee doe, for Us our Heires and Successors, grant unto the said John Gilbert his Executors Administrators and Assignes, that these Presents, or the Inrollment of the same shall be in and by all things good firme effectuall, and of validitie in the Lawe, to all the intents and purposes aforesaid, and shall bee adjudged most strong against Us our Heires and Successors, and (c) 2 Herbert, 293. {d) 1 Herbert, 376. s 2 Authority to magistrates, &c. to assist the patentee. The like authority in trade charters. Grant not to fail for uncertainty. 260 APPENDIX most available for the Benifit of the said John Gilbert bis Executors, Administrators and Assignes, in all our Courts of Justice in our said Bealme of England and Dominion of Wales or elsewhere, for and during the terme hereby granted, and without any other or further Confirmations Licenses or Tollerations to be from Us our Heires or Suc- cessors procui’ed, sued for or obteyned in that behalfe ; notwithstanding the not describing, or not perfect or par- ticular describing of the said severall Engins or Instru- ments herein before mentioned, or the manners, formes or fashion of there use or working ; and notwithstanding anie other defect or uncerteintie whatsoever in these our Letters Pattents or anie Act, Statute, Ordinance, Provision or Eestriction to the contrarie in anywise notwithstanding. See above, p. Ill, below, p. 273. In this form the clause expresses only what was well ascertained to be the legal effect of the words ex certd scientid in the King’s grant, namely, that they cured uncer- tainties (e), i. e., that if in any part it was ambiguous, the ambiguity should not be pressed to the disadvantage of the patentee. In some cases an endeavour was made to control the administration of the law by the phraseology of patents in the most undisguised fashion. For example, in the contem- poraneous grant to Eamsey and Wildgosse, to which allu- sion has been already made, there is a clause conferring exclusive j urisdiction upon the Privy Council in the following terms : — “And further our express Pleasure and Command- ment is, that for the avoyd- (/) of all subtill malicious perverse and cautelous Practizes and Constructions that may be pretended or attempted to defraud and abuse the good and true meaning of these om’ Letters Patents, the Interpretation Con’ection and Punishment of all manner of Offences which shall be committed in this behalf, to the Disadvantage and Hinderance of the said David Ramsey and Thomas Wildgosse their Executors Administrators or Assignes, shall be referred to the Pryvy Councell of Us om’ Heirs and Successors for the time being, by theire honorable Dyrection to be punished according to Justice ” (y). ie) Sav. 0 . pi. 14. [g) Ry. 17 Fcsd. 122. (This (/) So in Ey. The word is page is misnumbered 722 in the broken by the end of the line. original edition.) FORM OF THE PATENT GRANT. 261 David Ramsey enjoyed the advantage of being a page of the bedchamber. Provided alwajes that these Presents, or anie thing therein conteyned, shall not extende to harr, restraine, impeach or prejudice a late Grraunte by Us made io Robert Crompe, for touching and concerning the sole making and practise of an Engin by him invented for raising of Waters for Service of Townes, Castles or House, and for the draw- ing and drayning of Coal pitts and other Mynes, nor shall extende to restrayne anie Person or Persons of or from the making or using of any Engine Instrument or Inven- tion touching the Premisses formerlie found out, or in knowne use or practise within this our Eealme or Dominion of Wales ; any thing herein conteyned to the contrarie in any wise notwithstanding. Provided alsoe that if the said Yearly Eent or Somme of Six Poundes tliirteene Shillings and eight Pence, herein before reserved, shall happen to he hehinde and unpaied, in parte or in all, by the space of fortie Dayes next after either of the said Feasts in the which the same ought to he paied as aforesaid, that then this our present Grraunt shall bee utterlie voyde and of none effect to all intents and purposes ; any thing herein conteyned to the contrarye in any wise notwithstanding. And moreover We, of our like espe {h) Grrace, certaine Knowledge and meer Motion doe, for Us our Heires and Successors, give and graunte unto the said John Gilbert his Executors and Assignes one Moyetie of all such Trea- sure Trove, Plate, Jewells, and other Matters and Things of Vallue, as he or they shall take upp by the use and meanes of the said Water Plough out of any Eivers, Havens or Harbors as aforesaid, after he or they shall have made appeare in the Court of Exchequer of Us our Heires or Successors uppon his or their Oath, the full quantitye and vallewe of the same, and shall have brought unto Us our Heires or Successors the other moyetie thereof. To have and to hold the said Moyetye to him and them thereby intended, during the said Terme, to his and theire owne Use Benifit and Behoof e, without anie Accompte or other thing to bee therefore redered or made to Us our Heires or Successors : Saving of a prior grant. Defeasance. Grant of treasure trove. Habendum. (A) So in Ry. The word is broken by the end of the line. 262 APPENDIX IV. Teste. Substance of the pro- clamation. And theis our Letters shall be your sufficient Warrant and Discharge in this hehalfe. Although express mention &c. In witnes whereof &c. Wytnes our self at Westminster the sixteenth Day of July. Fer Breve de Privato Sigillo. John Gilbert. JUL. C^SAR. Sect. 2.— PEOCLAMATION. (See above, p. 34.) The following is an example of a proclamation issued in further- ance of a patent. Extracted from Eymer’s Eoedera, Vol. XX., p. 191. Eymer’s reference to the original enrolment is a.d. 1637, Pat. 13, Car. I. p. 15, n. 5, dors. The proclamation recites — The invention at the cost and expense, after many charge- able trials, of the Earl of Berks, of the patented kiln. The utility of the invention. The grant of the patent ; and proceeds — “Now taking into our princely consideration the great benefits of the said invention, and being desirous to fur- ther a speedy execution thereof for the good of our said kingdoms and people, We are graciously pleased by this our proclamation to publish the premisses to all our loving subjects that so they may not only know the good, but compounding with the said Earl and his assigns for his licences at a certain place in Eleet Street, near unto Temple Bar in our City of London, appointed on that behalf, may also by virtue of the same licences partake of the benefits of the said invention. And We are further pleased, and do hereby declare our Eoyal will and pleasure to be, that all and singular our loving subjects who shall be licensed by the said Earl, his executors, administrators, or assigns, to use the said invention or kiln to and for the drying of malt, except such person or persons as are or shall be allowed for common brewers shall and may, DISPENSATION TENDING TO A MONOPOLY. 263 observing tbe laws and statutes of this Eealm, continue tbeir art and mystery of malt making, without the let, disturbance or interruption of Us, our heirs or successors, or any of the officers or ministers of Us, our heirs or successors, and without any further or other composition than such composition as shall be made with the said Earl, his executors, administrators or assigns, concerning the premisses, any Act, Ordinance, Provision, Proclamation or Eestraint heretofore had, made, published or provided to the contrary in anywise notwithstanding. Witness, &c. Dated at Westminster, Wi February, 1637. There are two proclamations purporting to create a monopoly of gold wire making in the hands of the King. They have been published in extenso by Dr. Gardiner. See Archaeologia, Yol. 41, pp. 247 and 260. Also St. Pap. Dom. clxxvii. 53, and clxxxvii. 71. Sect. 3.— DISPENSATION TENDING TO A MONOPOLY. (See above, p. 33.) The following extract from the Acts of the Privy Council for the year 1581 serves to illustrate the point insisted upon above, that the power of dispensation could be utihzed to create a monopoly. The present example is a monopoly of foreign trade — the case of monopolies in its second branch deals with an attempt to create in this way a monopoly of domestic trade ( g). A letter to the Lord Threasurer with certaine letters enclosed, written unto her Majestie from the Citie of Ham- burge, that it would please her Highnes to graunt hcence unto Conrade Silm, an inhabitaunt of their towne, to trans- porte out of this Eealme a certaine proportion of wheate, rye and barlye ; forasmuch as their Lordships thincke that the said proporcion of rye and barlye which they require maie be convenientlie spared in the county of NorfEolke, &c., their Lordships have thought meete to require his Lordship to geve order that the said Conrade Silm, or such other person as (g) 13 Acts, P. C. 313. 264 APPENDIX IV. shalbe appointed to folio we tliat cause, maie be licenced to sbipp out of the said county of Norffolke the aforesaid quan- titie of rye and barlye ; touching their request in their said letter for v"' quarters of wheate besides, for that by reasons of the licence for Dover Haven and otherwise their Lordships are enformed that the prices are greatlie enhaunsed by occa- cion of the great quantitie that hathe ben shipped out of manie shires of this Eealme, &c., yt is left to his Lordship’s good discrecion to helpe them either with the whole or parte in Norffolk, Suffolk, Essex, as (sfc) suche other place as his Lordship shall thincke good or, otherwise, if this maie not be, to supplie the want thereof with so much rie or barlie as maie be convenientlie spared yielding unto her>MaJestie such dueties as are accustomed. Sect. 4.— PROTECTION. (See above, pp. 36 and 59.) The following examples of various forms of protection extended to favoured individuals by Queen Elizabeth’s Privy Council will serve to explain the strenuous effort made by the Parliament of 1623 to abolish the interference of this body with the course of justice in cases concerning monopolies : — 17 Martij, 1581. A warrant of protection directed to the Lord Mayour and Sheriffes of the Cittye of London, the Sheriffe of the county of Myddlesex, the officers of the Marshall of her Majestie’s Household, &c., in the behalf of John Jerningham, esquier, one of her Majesties servants, to be for the space of xx^^® dayes protected and defended against all manner of arrestes or attachementes to be intended against his persone by anie of his creditours for any actyon of debte, he having certen matters depending before the Lordes and to be determined within the terme of xx*‘® dayes prefixed (A). 6to Aprilis, A warrant of protectyon directed to the Lord Mayour and Sheriffes of the Cittie of London, the Sheriffe of the county {h) 13 Acts, P. C. 360. PROTECTION. 265 of Myddlesex, the officers of the Marshall of her Majesties Household, &c., in the behalf of John Jerningham, esquier, one of her Majestie’s servauntes, to be for the space of xxt‘« dayes protected and defended against all manner of arrestes or attachementes to be intended against his persone by anie of his credytors for anie actyon of debte, he having certen matters depending before the Lordes to be determined within the terme of the xx*‘® dayes prefixed (i). A letter to the Lord Maiour, Aldermen and Sherifies of the Citie of London, now or for the time hereafter beinge, or to anie xij, ix, viij, vj, or iiij°‘' of them, wherof the Lord Maiour or one of the Sherifies to be one, with a Supplicacion enclosed exhibited by certaine Aldermen and others, the creditours of William Handforde, that some reasonable daies and time maie be graunted unto him wherin, without molestacion [of] other of his creditours, he maie seeke the recoverie of such his goodes as are dispersed in divers men’s handes, wherwith he maie be hable to satisfie his creditours ; they are required to call bothe the said William Handforde and his creditours, especiallie such as wilbe most rigorous against him, before them, and findinge how muche he is endebted unto everye one, to perswade with them to accept of such reasonable daies and condicions of payment as the said Handforde maie in the meane time freelie seeke the recoverye of his owne goodes, and in the meane time while they are in treatie with the said creditours about this cause, that in their Lordships’ names they geve order to the Sheriffes and Secondaries of bothe Compters that no arrest, action or attachement be commenced or prosecuted against the said Handforde or his goodes, untill they shall have finished this treatie with his said creditours, and that they advertise their Lordships what they shall have don herin, to th’ intent that their Lordships, if neade be, maie putt to their further helpinge handes {k). A letter to Mr. Alderman Pullison, Mr. Aldermen Eave and Allet, Eichard Yonge, John Clerke, and William Abram, or anie 5, 4, or 3 of them, thanckinge them for their good will and paines taken to have the (sic) compounded the matter betwene Eowlande Winter, her Majesties servaunt, and certaine of that Citie, his creditours ; and for that by (i) 13 Acts, P. C. 381. (^) 13 Acts, P. 0. 112. 266 APPENDIX IV. their letters it appearethe that uppon examinacion of the matter, they finde that the said Winter had verie hard peny- worthes of his said creditors, losinge xx in the c hy the sale of suche wares as he had of them, seing it standeth uppon his undoing and the case deserveth some charitable consideracion, they are once again required, in their Lord- ships’ names, to deale e'ffectuallie with his said creditours, to accept of the offer to geve good assurance for the paiment of as much as is by them demanded within five yeres, in such reasonable sorte as they shall thincke good, wherto if anie of them shall refuse to condescende, minding to proceade against him or his suerties, then to require and commando them by virtue herof to make their repaire their repaire (sic) before their Lordships to declare what cause they can pretende to the contrarie, and of their doinges herin to advertise their Lordships with speede convenient (Z). A letter unto the Mayour and Sheriffes of the Cittie of London for the staffing of all proceedinges that shalbe entred or intended by arrest, attachement, actyon or pro- cesse against William Napton, William Woodecocke and Thomas Seywell by anie their creditours, &c., for certen consideracions therein mencioned, &c., according to a minute thereof remayning in the Councell Cheste (m). A letter to the Commissioners for the debtes of William Woodcocke, William Napton and Thomas Sewell that wheras their Lordships are enformed that not longe sithe there was a Commission directed unto them concerninge the debtes of William Woodcock, William Napton and Thomas Sewell, merchauntes of that Citie, and that the most part of their creditours have ben contented to subscribe a certaine order thought meete to be generallie taken in that behalf, and that some fewe of the rest onelie for some private cause willfullie refuse to yielde thereto ; they are required to call the said creditours so obstinatelie refusing before them and to use the best perswacions that they can to induce them to conformitie and to subscribe to the said order as the most parte have don, and in case anie shall refuse so to doe, then to commando them in their Lordships’ names to appeare before their Lordships on Sondaie next, where they shall understand what is further to be said unto them, &c. (n). (l) 13 Acts, P. C. 420. (m) 13 Acts, P. C. 277. (n) 13 Acts, P. C. 345. PROTECTION. 267 That the “ perswacions ” of the Privy Council skilfully admi- nistered on Sundays were very telling can easiljj- be believed. The simple story of Thomas Hampton, of London, Gentleman, as told by the Clerk to the Council in his official minutes, is quite con- vincing on this point. The poor gentleman makes his appearance on the 8th April, 1582, being “ bound to geve his attendance uppon the Lords at everie such tyme as they shoued mete in Councell to receyve such order in certen causes as by them shalbe taken.” His attendance is recorded on nine succeeding Sundays, and he even wins an appreciative reference in the margin of the book, where he is denoted by the words “a punctual attendant,” but the only communication which appears ever to have been made to him was that he was ‘ ‘ commanded to continowe his apparence according to their Lordships’ former commandment untill soch time as they shall have given other order to the contrary” (o). As he disappears from the record quite uneventfully after ten weekly attendances, it is fair to assume that the silent “ perswacion ” of the Privy Council sufficed in his case to compass the desired end, whatever that may have been ( p). (o) 13 Acts, P. 0. 402. (p) 13 Acts, P. C. 383, &c. 268 Appendix V. NOTE UPON REX v. MUSS ARY. In the first volume of Webster’s Patent Cases («), a report occurs under the title of R. v. Mussary of a dictum attributed to Lee, C. J., laying down general rules for the construction of patents. These rules are so very precise and systematic as to challenge the most careful considera- tion, but as the language in which they are embodied is not quite beyond criticism, and even the authority upon which they rest is to some extent doubtful, it may he convenient to embody in a note the various readings and other matters at present known to affect the weight of this authority. Mr. Webster quotes from Puller’s Nisi Prius ; his autho- rity being not the author of that book but Mr. Bridgman who edited the edition published in 1817 and introduced the passage extracted by Webster into a note to Book II. Ch. VII. where consequential damages is under discussion. The earlier editions of Puller’s N. P. contain no reference to the case and Mr. Bridgman does not state from what source he derived the ruling which he attributes to Lee, C. J. There is some reason to think that he relied upon a report that was not rigourously accurate. This will clearly appear i from what follows. The passage is also quoted by Mr. J. W. Thomas, . Editor of the 1826 Edition of Sir Edward Coke’s Reports, i In an elaborate note (vol. 1, p. 103) to the case of Alton | Woods ip) he cites the dictum somewhat more at large j {a) 1 W. P. C. 41. {b) 1 Co. Rep. 40b. NOTE UPON REX V. MUSSARY. 269 than as it is found in Buller’s Nisi Prius although he gives the reference to that work. But Thomas gives a farther reference to Bacon’s Abridgment as follows — Bac. Abr. Prerog. F. 2. This reference requires careful following up, for Bacon’s Abridgment contains under the title Prerogative two passages which are num- bered F. 2. The latter of the two is the one now in question and' it occupies the position of F. 6, so that the figure 2 was presumably at first a misprint for 6. But as the misprint occurred in the original edition of 1759 and was repeated in successive editions down at least to the seventh (of 1832) it must perhaps rather be regarded now as a feature of the book than as a mere printer’s error. As it makes the difficulty of finding the passage equally great — whatever its cause — it may properly be noted here. The exact reference to the original edition of Bac. Ab. is Yol. IV. p. 210(c). ^ The dictum as given by Bacon is introduced with the following exordium : — “ As the King’s grants proceed chiefiy from his own bounty, and his letters patent are records of a high nature, they ought to contain the utmost truth and certainty, and have in all times been construed most favourably for the King contrary to the grants of common persons, and accord- ingly in a great variety of cases we find incer- tainty, misrecitals, false suggestions, and all such matters as show that the King was deceived in his grant, held such reasons as have been suffi- cient to vitiate the grant. “ In a matter therefore in which such great exactness has been required, it may be necessary in the first place to lay down the following general rules.” There is nothing here to show that the writer is borrow- ing his text ; on the contrary, he appears to be producing it, and the references which he gives to authorities are only to such as establish his point. He does not allude to the case of Rex v. or to any report upon which he has drawn in the way of quotation. If Messrs. Thomas and Bridgman had not avouched Lee, C. J., for the author [c) Vol. VI. p. 514, in the 7th edit. 270 APPENDIX V. of the general rules which follow at this point in the Abridgment, the modern reader would have no hesitation in attributing them to Matthew Bacon. The case cited — Rex v. Miissary — may he probably identified with one reported under the name of The King against Ma^sori/^ by Andrews (^). That was a Quo icar- ranto, in which the defendant relied upon letters patent granted to the town of Maidstone to sustain his election to the office of jurat of that town. The Crown put for- ward a charter of later date, and the question to he decided upon the demurrer was whether the charter (later in date) had granted a new mode of election, the defendant having been elected in accordance with the mode pre- scribed in the patent. Questions of construction thus arose which may well have occasioned a systematic ex- amination by the Court of the rules of construction appli- cable to grants from the Crown. But Andrews does not in fact report any such examination of the subject in connection with this case. Andrews, however, reports another case. The King against Blunt (c), which comes next before The lUng against Massory in his volume of Eeports, and which also was a Quo icarranto against another usurper of the office of jurat, who based his pretensions on the same Patent upon which Massory relied. This case is reported by Andrews in greater fulness than Massory’s case, and was tried by Lee, C.J. Both cases were heard in the Term — Michaelmas, 1738 — to which both our authorities refer the hearing of Rex v. Miissary, and in Andrews’ report of The King against Blunt there is a traceable resemblance to the passage now under discussion. The following extract will make this clear : — “ And the whole Court was of opinion that upon construction of the last charter the right of election is in the mayor, jurats and commonalty. For (as Lee, C.J., said) the words ‘ it shall and may be lawful,’ &e. are express words of grant, and therefore this charter must operate as a new grant. And supposing the King to be here deceived in the reciting part yet, as the words of grant are sufficient to show his intention, the misrecital will not vitiate the charter, especially {h) Andr. 295. (c) Andr. 293. NOTE UPON REX V, MUSSARY. 271 as it is not ttie false suggestion of the party nor part of the consideration. And the Chief Justice cited Lord Chandos^ Case, 6 Co. 55^; Carth. 350. King and the Bishop of Chester, _Hil. 9 W. 3 ’’ (c/). The misrecital here in question was a misrecital of the terms of a former charter earlier than the Patent. The former charter had empowered the “mayor, jurats and commonalty ’’ to elect new jurats. The later charter recited this former one as empowering the mayor and jurats only to elect, and proceeded that “ it shall and may he lawful to and for the mayor, jurats and commonalty ” to elect. In appearance, therefore, the new charter abro- gated the old, hut in effect it revived the old charter, which had in the interval been abrogated by the Patent. The argument against the new charter, therefore, was that the King was deceived, because he was led to believe that he was conferring new rights on the commonalty, when he was, in fact, restoring their old right of election. The judgment was that, even so, that would not avoid the grant. The general rules as formulated in the Abridgment are as follows : — “ First, That in the construction of letters patent every false recital in a part not (^) material will not vitiate the grant, if the King’s intent sufficiently appears ; this was so held in the case of The King and Bishop of Chester (e), where the grant was made to a person as a knight who, in truth, was no knight, and though the grant was held void for this reason in B. P., yet the judgment was reversed in Parliament.” (^) In the fourth (/) and subsequent editions of Bacon’s Abridgment this word “not” is omitted, and the passage reads : “every false recital in a part material will not vitiate,” &c. The omission is very possibly due to a printer’s error, unobserved in editing, for if the change had been intention- ally made it would probably have been emphasized. But, curiously enough, the proposition, with or without the {d) Skin. 651. Raymond, 292. {e) 5 Mod. 297; 2 Salk. 560; (/) I have not seen the second Carth. 440 ; Skin. 651, pi. 1 ; 1 Ld. and third Editions. 272 APPENDIX V. “not,” is equally good law. Without the “not” it signifies, of course, that a misrecital, although it touches matter of substance, does not avoid the grant if it touch the matter only in such a way as not to affect the consideration for the grant, and this is precisely the effect of the authority cited, for there is no denying that the naming of a person as a knight who did not enjoy that dignity might occasion such confusion and uncertainty as must in the nature of things avoid the grant. In other words, it is a “ misrecital in a part material,” in fact in the most material part of all, namely, the identification of the grantee. The affirmative proposition, of course, involves the negative, so that it is not possible to say certainly whether the earlier or the later edition of the Abridgment is to be regarded as embodying the authentic text. “ Secondly, That if the King is not deceived by the false suggestions of the party, hut only mistaken by his own surmises, this will not vitiate his grant, and so was the resolution in the case of The King v. Kemp ” (/). “ Thirdly, That though the King mistakes either in matter of law or fact, yet if this is not any part of the consideration of the grant it will not vitiate it, and so is Lord Chandos Case [g), which was thus : Henry the Seventh granted to Lord Chandos a manor in tail, and the same King by other letters patent reciting the former grant, and that the said Lord Chandos had surrendered the same to be cancelled, and that the same had been cancelled, by reason whereof the King was and is seised in fee, did grant the said manor to husband and wife and to the heirs of the husband, &c. Now, though by the surrender of the first letters patent the estate tail was not determined and so the King not seised of the manor in fee as he recited he was in the second- grant — for he had only a reversion in fee expectant upon the determination of the estate tail — yet the cause, viz., hy virtue whereof ice are seised in fee^ being what the King collected to be the consequence of (/) 4 Mod. 277 ; Garth. 350 ; Skin. 446, pi. 4 ; 1 Lord Raym. 49. Comb. 334; Salk. 465, pi. 2; (^) 6 Co. Rep. 65. NOTE UPON REX V. MUSSARY. 273 the surrender, and not at all owing to the mis- information of the party, either as to the entail or surrender, the mistake which he made being no part of the consideration the grant was held good. “ Fourthly, That the words ex certd scientid et mero motu in the King’s Charters and letters patent do occasion them to he taken in the most benign and liberal sense according to the intent of the King expressed in his grant (//) . A marginal note in this place reads : — ‘ ‘ But where the King in his grant recites a thing which is false, that shall not make the jgatent good although the luords he ex certd scientid et mero motu, 10 Co. Rep. 112; 3 Leon. 249 ; Plow. 502 ; 3 Co. Rep. 4 ; Savil. 5, 37 ; Dyer, 300; 2 Salh. 561. In Rex v. Capyer, 5 Pri. 217, it was doubted whether the words ex certd scientid et mero motu reduced a royal grant to the same rules of construc- tion as a private grant. “ Fifthly, That though in some cases general words of a grant may be qualified by the recital, yet if the King’s intent is plainly expressed in the granting part it shall enure according to that, and is not to be restrained by the recital.” A marginal note reads : — “ Bo held in the King and Bishop of Chester, which is grounded on LegaVs Case, 10 Co. Rep. 112.” To these rules Bacon subjoins the following, derived from the argument of The King v. Bir Francis Clark {i), and supported by the authorities cited. ‘‘1. Where a particular certainty precedes it shall not be destroyed by an uncertainty or a mistake coming after [k). “2. That there is a difference when the King mistakes his title to the prejudice of his tenure or profit and when he is mistaken only in some {h) Br.Ab. Patents, pi. 80; Plow. {k) Cro. Eliz. 34, 48 ; Telv. 42 ; 337; 6Co. Rep. 56; 3 Leon. 249. 3 Leon. 162; And. 148; 2 Godb. (i) 1 Mod. 195 ; 2 Mod. 1 ; 3 Keb. 423 ; Markham's Case, 10 Co. Rep. : 412. Legal' s Case, 10 Co. Rep. 109. T G. 274 APPENDIX V. description of Lis grant wLicL is but supplemental and not material or issuable (/). ‘‘3. That distinct words of relation in the King’s grant are good to pass away any- thing (m). “ 4. That when the Xing’s grants are upon a valuable consideration they shall he construed favourably for the patentee for the honour of the King” Mr. Thomas’ note to the Case of Alton Woods in Coke’s Eeports is a textual quotation of the foregoing passage containing the five rules from Bacon’s Abridgment. But it is noteworthy that this author follows the later reading of the first rule, and states it thus. “ That every false recital in a part material will not vitiate the grant if,” &c. Moreover, to the fourth rule he adds the rule sub- joined, in Bacon’s Abridgment, concerning grants made upon a valuable consideration — the fourth of the subjoined rules — and to the fifth he adds the following new matter. “ In Bozoun^s Case, 4 Co. Eep. 34, it was held that a clause of non obstante would supply the defect of a misrecital, and this doctrine was recognized in A.-G. v. Hungate, Hard. 231. Lastly, Mr. Bridgman, and following him Mr. Webster, reproduces the passage as follows (o), his departures from the text followed by Bacon and Thomas being denoted by italic type. ‘‘ Eespecting patents the following general rules were laid down by Lee, C. J. (M. T. 12' G-. 2, A.D. 1738). “ 1st. Every false recital in a thing not mate- rial will not vitiate the grant if the King’s intention is manifest and apparent. “ 2nd. If the King is not deceived in his grant by the false suggestion of the party but from his own mistake upon the sur- mise and information of the party, it shall not vitiate or avoid the grant (p). (l) 21 E. 4, 49 ; 33 H. 7, 6 ; 36 (n) 2 Inst. 446, 447 ; 6 Co. Eep. ; H. 8, 37 ; 9 E. 4, 11, 12; Lane, Sir Jno. MoUine*s Case, 10 Co. Eep. Ill; 2 Co. Eep. 54. 65. (m) Bulst. 4 ; Dyer, 350; 9 Co. (o) 1 W. P. C. 41. Eep. 24; lOCo. Eep. 4; Whistler’s {p) This reading is manifestly Case. corrupt. The “surmise” cannot NOTE UPON REX V, MUSSARY. 275 “ 3rd. Althougli tlie King is mistaken in point of law or matter of fact, if that is not part of the consideration of the grant it will not avoid it. ‘‘ 4th. Where the King grants ex certa scientia et mero motu, those words occasion the grant to be taken in the most liberal and beneficial sense, according to the King’s intent and meaning expressed in his grant.” 5th. Although in some cases the general words of a grant may be qualified by the recital, yet if the King’s intent is plainly expressed in the body of the grant, the intent shall prevail and take place.” Mr. Webster extracts in addition two paragraphs relating to scire facias, one referred to 4 Inst. 88, and the other to Butler’’ s Case, reported in 2 Vent. 344. But as these are textually, although not quite accurately, quoted from the two authorities named, it is not necessary to vouch the somewhat disputable authority of Lee, C.J., to authenti- cate them, and if the case of Rex y. Mussary be rightly identified with The King against Massory, it seems all but impossible that the law as to scire facias can have been laid down in that judgment. These two paragraphs should probably, therefore, be regarded as an interpolation, if indeed they were not intended by Mr. Bridgman as independent notes. They read as follows : — A writ of scire facias to repeal letters patent lies in three cases: — 1st, When the King doth grant hy several letters patent one and the selfsame thing to several per- sons, the first patentee shall have a scire facias to repeal the second, 2nd, When the King doth grant a thing upon a possibly be surnuse of the party, ing unquestionably is as expressed i.e., of the patentee, for he gives by Bacon above, “his own sur- the information upon which the mises,” i.e., the King’s own sur- surmise is grounded. The mean- mises. See above, p. 272 . T 2 276 APPENDIX V. faUe suggestion^ he, prcerogativd regis, may hy scire facias repeal his own grant. Zrd. When the King doth grant any thing which ly law he cannot grant (q). 4 Inst. 88 .’’ Where a patent is granted to the pre- judice of a subject, the King of right is to permit him upon his petition to use his name for the repeal of it. Butlerh Case, 31 ^ 32 Car. 2 ; 2 Vent. 344 .” (^) Coke adds here: — “he jure regio (for advancement of justice and right) may have a scire to repeal his own letters patents.” INDEX ACCOUNT OF PROFITS, order for, 243. on what principles ordered, 129. See Damages. ACT OF PARLIAMENT, grant by Act of Parliament saved, 238. See also Statutes. ACTION, infringement. See Patent Action. monopoly. See Monopoly Action. threats. See Threats Action. AD QUOD DAMNUM, writ of, 227. ADVERTISEMENT, threat by, 78, 81, 243. AGENCY, agent’s liability in threats action, 78. particulars of agency in threats action, 97. AGGRIEVED PERSON, in respect of monopoly, 39, 42, 237. in respect of threats, 84, 94, 243. corporation, 85. rival patentee, 85. See also Grievance. AID PRAYER, 60, 237. compared with adding defendants, 61. third party procedure, 61. ALIEN. See Foreigner. ALUM MINES, 240. APPRENTICESHIP. See Trade — regulated by statute. ATTAINT, writ of, 64, 238. I AUTHORITY. See Privileqe. BOARD OF TRADE, power to compel patentee to grant licences, 98, 103, 242. neglect of powers, 98. petition to, 100, 248. procedure on application, 104. duty of Board of Trade, 103. 278 INDEX. BOOK OF BOUNTY, reprint of, 161 — 192. identification of, 22, 23, 157, 232. history of, 7, 9. bibliography of, 159. origin of, 4, 6, 158. Sir E. Coke’s notices of, 4, 7, 157, 232. Dr. S. R. Gardiner’s observations on, 8, 158. leads to the Statute of Monopolies, 8, 21, 23, 235. incorporated in the Statute of Monopolies, 8, 23, 235. BOUNTY, of James I., 5, 7. sources of (Book of Bounty, pp. 17 — 29), 179 — 192. See Botal Bounty and Book of Bounty. BYE-LAWS. See Teade, rules. CANTERBURY. See Custom of Canterbury. CASE OF MONOPOLIES, 21. report of, 199 — 231. reviewed, 193. authorities for, 193, 197. Coke’s report, 194, 197, 199, 201, 226. Moore’s report, 198, 204. Noy’s report, 198, 209. proceedings in, sketched, 196. judgment in, 226. See Table of Cases. CERTAIN KNOWLEDGE, 275. cures uncertainties, 111, 260, 273. CERTAINTY, King’s grant imports, 269. rule as to certainty, 273. CERTIFICATE, of validity questioned in threats action, 93, 243. of reasonableness of particulars, 93, 243. CHANCELLOR, origin of the title, 38. jurisdiction of, over patents, 37. CHANCERY. See Couet, of Chancery. CHANDLER, town. See Custom of Canterbury, 221. CHARTER, defined, 30. compared with letters patent, 30. monopolies by, 24, 30, 236. void, 230. corporations’ charters saved in Statute of Monopolies, 239. City of London, 252. INDEX, 279 CHAETEE — continued. Drapers’, 252, 255, 258. Fishmongers’, 255. Goldsmiths’, 258. Merchant Taylors’, 259. Skinners’, 256, 258. Stationers’, 122, 225, n. (i). CIECULAE, threat by, 78, 243. instances of, 80, 82. See Threats. CIVIL LAW, V. Common Law of England, 5. doctrine of monopolies, 228. See Cowell’s “ Interpreter.” CLOSE WEITS, 28. CODEX JESTINIANI. See Civil Law. COKE, SIE EDWAED, on the Book of Bounty, 4, 7, 157, 232. Statute of Monopolies, 21, 25, 36. sole buying, selling, &c., 30, 33. Courts of Equity and Common Law, 37. penal statutes, 54. Darcy’s monopoly, 232. his definition of monopoly, 26. report of the Case of Monopolies, 194, 197, 199. COMMISSIONS, creating monopolies, 24, 28. contrary to law, 36, 236. COMMODITIES, enhancing prices of, 227, 238. (Book of Bounty, p. 21), 183. deteriorated by monopolies, 228. COMMON INFOEMEE, pestilent common informers of Tudor-Stuart times, 69. penalty given to, 52. See Penal Statute. COMMON LAW, monopolies to be tried by, 37, 236. doctrine concerning monopolies, 23, 226, 235, 236. (Book of Bounty, p. 13), 175. doctrine concerning threats, 12, 71. administered by Court of Chancery, 37. applied to construction of patents, 209, 210. See Halsey v. Brother- hood^ Wren v. Weild. COMMON LAW COUETS, jurisdiction, in reference to monopolies, 9, 37, 237. patents, 10, 209. monopoly action, 56, 237. See also High Court. COMPOSITION, for penalty ; grant of power of void, 24, 34, 236. 280 INDEX. COMPTROLLER, defined, 244. COMPULSORY LICENCE. See Licence by Patentee. CONDITION OF THE PEOPLE, how affected by monopoKes, 228. CONSIDERATION, for patent grant is entire, 108. in reference to validity, 272. to construction, 274. valuable for a patent for invention, 115, 250. CONSOLIDATION OF ACTIONS. See Joindee of Actions ; Peactice. CONSTRUCTION, of patents, by intention and interest of the Crown, 113, 119, 131, 207, 269, 273. rule of favourable construction, 113. defeasance by, 114. according to common law, 209. of penal statutes, 53. of specification, 115, 131. CONTEMPT, penalties of, under Star Chamber jurisdiction, 128. of Court, 80. COPYRIGHT PATENTS, 130, 225, 240. form of, 256. CORPORATION, liable in threats action, 76. aggrieved person, 85. disabled to bold monopoly, 39, 236. charters to corporations saved, 239. COSTS, double in monopoly action, 57, 237. full and reasonable indemnity substituted, 57. saved by Judicature Act, 58. COURT, defined, 244. of Chancery, is a Court of common law, 37, 56. jurisdiction of, 10, 37. of Common Law. See Common Law Couets. See also High Couet. COWELL, DR., bis Interpreter, 5. CROWN, deceived. 111, 228, 272, 274. See also Aid Peatee ; Bounty ; Geant by the Ceown ; Letters Patent ; Peeeooative ; Proclamation ; Protection ; Re- straint; Revenue; Royal Licence ; Sgire Facias ; Trade; Teeasuee Teove. INDEX. 281 CUSTOM, compared with patent, 206. of Canterbury, 221. of Newcastle, 240. DAMAGES, defined by patent, 129. given on general principles, 129. pleading to, 137, 145. in monopoly action, special damages, 134, 140, 143 treble damages, 57, 237. how ascertained, 57. in threats action, general damages, 91, 134. special damages, how ascertained, 90, remoteness of, 90. lost profits, 91. inquiry ordered, 91. See Account of Peofits. DAMNUM ABSQUE INJUBll, instances of, 221. DATE OF STATUTE OF MONOPOLIES, need not now be pleaded, 39, 140. DECEIVED IN GRANT. See Ceown. DECLARATION, by patentee, 107. of invalidity in threats action, 93. DEFENCE, to monopoly action, 143. DEFINITIONS. See Compteollee ; Couet ; Inteedict ; Invention ; Law Officee ; Patent ; Patentee ; Peeson ; Teeasuey. DELIVERY UP. See Foefeituee ; Seizuee of Goods. DESTRUCTION OF INFRINGING GOODS, contrary to doctrine of common law, 45. first instance of, 47. modem dicta, 50, 51. See also Foefeituee ; Seizuee of Goods. DICE, false, action for use of, 222. DILIGENCE, due diligence to defeat threats action, 94, 244. what is, 95. See also Theeats Action. DISABILITY, created by Statute of Monopolies, 10, 236. its bearing on modern patent law, 36, 37, 39. 282 INDEX. DISCONFORMITY OF COMPLETE TO PROVISIONAL SPECI- FICATION, a ground of pro parte ^ 109, 110. DISCOVERT. See Inspection ; Paeticulaes. DISPENSATION with penal laws, 22, 33, 203, 235. equivalent to royal licence, 230. tending to monopoly, 33, 230, 263. See also Dispensing Powee. “DISPENSE WITH OTHERS,” 24, 34, 236. the idiom explained, 34. DISPENSma POWER, in the hands of the IHng, 34, 231, 232. exercised by non obstante^ 203, n. (s), 233. abolished by 1 W. & M. cap. 1 . .231, n. (c). in respect of malum prohibitum, 218. none in respect of statute bono publico, 231. in the hands of a subject, 34, 233. monopolies by exercise of, 33, 230. grants of dispensing power are contrary to law, by Book of Bounty, p. 13. . 175. by common law, 232. by Statute of Monopolies, 33, 34, 236. See also Dispensation. DISQUIETED, 39, 43, 140, 237. DISTURBED, 39, 43, 140, 237. ELIZABETH, QUEEN, her policy, 1, 3. her prerogative, 3. EQUITY, Courts of. See Couet, of Chancery. ERROR, writ of, 64, 238. ESPECIAL GRACE, 250. how it affects the grant, 110, 113, 119, 269. See also Royal Bounty. ESPECIAL LICENCE, dispenses with laws, 121. removes disability, 251. defeats privileges, 119, 121, 252. See also Full Powee. ESSOIN, 59, 237. EVIDENCE. See Injunction. EXCHEQUER, privilege of, 62. INDEX. 283 FAIR, grant of, 208. Abbot of Westminster’s fair, 222. FALSE SUGGESTION, grant made upon a, 107, 111, 269. See also Recitals. FOREIGN TRADE, prerogative with reference to, 29, 206, 218, 263. FOREIGNER, patent rights extended over, 126. inhibited by the patent to John Gilbert, 254. Fishmongers’ charter, 255. protected by charter against liberties of London, 252. FORFEITURE, none can grow by patent, 45, 50, 220. modern doctrine, 45, 48, 51. by statute, 46. grants of, when void — by common law, 232. by Statute of Monopolies, 24, 34, 236. when contrary to law by Book of Bounty, p. 13 , . 175. by old form of patent, 254, 258. by trade charters, 258. r^es as to granting upon conviction — of felons (Book of Bounty, p. 17), 179. of misdemeanants [Ibid., p, 25), 187. of recusants {Ibid., p. 27), 189. after outlawry {Ibid., p. 19), 181. See also Desteuction of Infeingino Goods ; Seizuee of Goods. FORM, of application to Board of Trade, 100, 248. of application for patent, 108. of injunction in tlmeats action — interlocutory, 87. perpetual, 89. of licence by patentee, 131. of monopolies, 27. of patent, 107, 119, 123, 245, 249. of petition to Board of Trade, 100, 248. of plea of statutable right to licence, 153. of pleading in monopoly action, 52, 96, 139. of protection, 264. • of statute. See Statute. of Statute of Monopolies, 21, 67. of fourth section, 24, 55. of saving clauses, 66. of threats, 78. instances, 80. “FULL POWER,” granted to remove disabilities, 121, 251. See also Especial Licence. FULLER, personal notice of, 194. his argument in the Case of Monopolies, 209—223. 284 INDEX. GENERAL ISSUE, pleading in monopoly action, 54, 143. GILBERT’S PATENT (set out App. IV.), 249-262. GRANT BY THE CROWN, monopoly by, 29. how made, 28, 29. in a patent, 115, 120, 127, 251, 253. of favourable construction, 131, 259. of bounty — King James’ rules (Book of Bounty, p. 8), 170. See also Ceown ; Habendum: ; Lettees Patent. GREAT SEAL. See Seal. GRIEVANCE, of monopoly, 11, 41, 207, 227, 237. instances, 2, 26, 42, 102, 152, 215, 217, 220, 226. defined, 42. pleading, 140. of threats, 11, 17, 75, 84, 94. instances, 80. See also Hindeeed. HABENDUM, 256, 261. function of, 116. HALSEY V. BROTHERHOOD, doctrine of, 14, 71, 73, 75. results in Patents Act, 1883 . . 74. See Table of Cases ; and Wren v. Weild. HASTINGS’ PATENT, forfeiture clause inoperative, 220. HIGH COURT, Ch. Div., jurisdiction of, 38. See also Couet, of Chancery. Q. B. D., jurisdiction in respect of C. P. of Lancaster, 38. See also Common Law Couets ; Rules. “HINDERED,” by claim of monopoly, 39, 237. instances, 40. hindranee defined, 40. pleaded, 140. See also Geievance. HOASTMEN OF NEWCASTLE, 240. HUMPHREY’S PATENT, void by common law, 220. IMPARLANCE, 64, 237. IMPOSITION. See Peeeogative of taxation. INDEX. 285 INFRINaEMENT, is a tort, 117. by aliens, 126. occasional user, 127. colourable imitation, 128. an issue in a threats action, 94. INHIBITION, 35. of the modem patent, 127. form in Gilbert’s patent, 254. INJUNCTION, to restrain trade, 24, 35, 63, 205, 226, 236. to restrain monopoly — doctrine of Halsey v. Brotherhood, 14, 16, 72. under Statute of Monopolies, 18, 133. to restrain monopoly action, 63, 237. to restrain infringement, 152. to prevent continuance of mischief, 80, 85, 244. enforceable by attachment, 90. interlocutory, to restrain threats — on ex parte application, 85. applied for in vacation, 88. in patent action, 88. prejudiced by delay, 88. granting is ^scretionary, 74, 86. granted on weight of evidence, 87. balance of convenience, 86. evidence to support application, 86, 87. form of, 87. perpetual, to restrain threats — contemplated by sect. 32 of Pat. Act, 88. when granted, 85, 89, 243. counterclaimed in patent action, 89, 90. not discretionary, 89. not prejudiced % delay, 89. form of, 89. interim injunction, 88. See also Resteaint. INSPECTION, order for, 243. INTERDICT, defined, 244. INTERPRETATION. See Consteuction. INTERPRETER, THE, 5. INVENTION, defined, 244. use of, prevented by patentee, 102, 152, 242. ISSUES, in monopoly action, 18, 39, 140. in threats action, 14, 91, 136. shaping, 145. separating for trial, 97, 146. See also Peactice. 286 INDEX. JAMES I., KING, his policy, 3, 4. his prerogative, 7, 8. publishes the Book of Bounty, 6. his proclamations, 6. his rules concerning bounty, 163 — 191. 8ee Book of Bounty, passbn. JOINDER OF ACTIONS, doctrine of, 137. of monopoly and threats actions, 135, 139. ZING, ' can do no wrong, 218, 227, n. {q). his grant — how construed, 113, 119, 131, 269, 273. how made, 27, 132, 244. See also Ceown and headings there enumerated. LACHES, prejudice interlocutory injunction, 88. patentee’s. 111, 113. LAW OFFICER, defined, 244. LEAVE TO AMEND SPECIFICATION, in threats action, 97. in trade mark action, 97. LEGAL PROCEEDINGS. See Boaed op Teade ; Patent Action Monopoly Action ; Theeats Action. LETTER, of protection, 265. threats by solicitor’s letter, 81. letter to customer, 81, 82. letter in answer to inquiiy, 82. LETTERS PATENT, defined, 30. form of, 30. modern, 107, 244, 245. old, 249. contents of, 107 — 132. gives remedies as well as rights, 118. warrants the grant, 119. epitomised, 119. the title of the invention, 108. the inhibition, 127. the defeasance, 129, 130. phraseology, 132. vali(Bty of, under Statute of Monopolies, 24, 30, 66, 68, 236, 238. at common law, 227, 235. in terms of the patent, 129. may stand jaro 109. INDEX. 287 LETTERS PATENT — continued. defeasance of, 129. cannot occasion a forfeiture, 45, 50, 220. change the law, 207. create a new burden, 207, 227. or a grievance, 207, 227. source of patent right, 106. See also Gteant by the Ceown. LICENCE EROM THE CROWN. See Royal Licence. LICENCE BY PATENTEE, forms of, 131. to be in writing, 128. or otherwise, 131. compulsory, 19, 98, 242, 247. proceedings to obtain, 100, 247. statutable right to, 99, 151. See also Boaed of Teade. LICENSEES, included in the patent grant, 123. injured by threats, 135. See also Licence by Patentee. MAGISTRATES, to assist patentee, 259. MAGNA CARTA, avoids forfeiture of goods by patent, 45. freedom of trade under, 206, 230. “MAKE, USE, AND EXERCISE,” 124. MAKING, sole, 24, 26, 30, 124, 219, 226, 228, 236, 245, 251. MALICE, doctrine of, in Wren v. Weild and Halsey v. Brotherhood, 13 — 15, 72, 73. MALUM IN SB, 203. monopoly is, 36. cannot be dispensed with, 215. MALUM PROHIBITUM, 203. dispensing with, 215, 218, 223. MANDAMUS, to enforce order of Board of Trade, 104. MATTHEY’S PATENT, 220. MERCHANTS, ■ their liberty to trade, 206, 218, 230. “MERE MOTION,” 112, 273. origin of the phrase, 112. 288 INDEX. . MONOPOLIES, definition of. See Monopoly. Case of. See Case of Monopolies. Statute of. See Statutes, 1624 (21 Ja. 1, c. 3). contrary to common law, 23, 26 (Book of Bounty, p. 13), 175, 205, 226, 235. to statute, 24, 25, 230, 232, 236. to the civil law, 228. created by, royal grant, 24, 28. private contract, 27, 205. mischievous effects of, on trade and industry, 2, 11, 102, 215, 227, 228. on prices, 130, 207, 215, 227. on quality of goods, 228. on condition of people, 228. to he tried by common law, 9, 236. subject-matter of, 31 — 33. popular feeling about, 2, 6. things tending to, 36. See also Monopoly. MONOPOLY, the word defined, 25, 31, 67, 68, 141, 218, 227. in Case of John the Byer, 26, 205, 217. in Bavenant v. HurdiSy 26, 206. in Ipswich Taylors' CasCy 26. in the Statute of Monopolies, 67. in Boulton v. Bully Tl. by Sir Edward Coke, 26. by Flemming, S.-G., 218. how' used, in Book of Bounty, 26, 175. in the Statute of Monopolies, 8, 25, 33, 67, 68. in the Case of Monopolies, 227. See also Monopolies. MONOPOLY ACTION, 52—65, 139—151. an untried remedy, 12. provisions of sect. 4 of Statute of Monopolies, 10, 39 — 65, 237. illustrated by Wren v. Weildy 12. compared with sect. 32 of Patents Act, 18, 134. the grievance, 10, 25, 33, 140, 237. the person aggrieved, 39, 42, 237. thejbmw, 56, 237. the party defendant, 57, 237. the plaintiff’s case, 139. the defence, 143. the issues, 18, 39, 140. procedure, 58, 61, 135, 145, 237. relief, damages, 18, 134, 140, 143. treble damages, 57, 237. injunction, 18, 133. double costs, 57, 237. See also Costs ; Damages ; “ Disouieted ; ” ‘‘ Disturbed General Issue; Grievance; “Hindered;” Injunc- tion ; Issues ; Monopoly ; Particulars ; Penal Statutes ; Pleading ; Practice ; Privilege ; Procedure ; Eight to Begin ; Statement of Claim ; Threats Action. INDEX. 289 NON OBSTANTE, effect of non obstante clause, 203, n. ( 5 ). See also Dispensing Power. OBSTRUCTIVE PATENTS, 19, 99, 102, 242. OPPRESSION BY PATENTEES. See Monopolies. OUSTER, of the 32nd section of Patent Act, 75, 94. See also Threats Action. PALATINE COURT, jurisdiction in monopoly action, 67. in patent action, 38. transferred to High Court, 38. PARTICULARS, in monopoly action, 145. in threats action, of agent, 97. of breaches, 92, 243. of objections, 92, 243. certificate of, 93. PASTIME, 214, 222. PATENT, defined, 244. compared with custom, 206 . not worked within the realm, 242. for copyright, 240, 256. for ordnance, 246. for philosopher’s stone, 225. for saltpetre, 208, 246. for smalt, 241, 251. Baker’s patent (iron ore), 241. Berkshire (kilns), 262. Bowes, (cards), 200. Darcy’s (cards), 200. Dudley’s (iron ore), 242, 256. Gilbert’s— set out — (dredger-pump), 249 — 262. Hastings’ (frisadoes), 220. Humphrey’s (sive), 220. Mansell’s (glass), 251. Mason’s (copyright), 256. Matthey’s (knives), 220. Molle’s (brocage), 205. Peechee’s (sweet wines), 206, 231. Speed’s (copyright), 256. See also Grant by the Crown; Letters Patent; Patent Action; Patent Act ; Patent Grant ; Prior Grant ; Rules. PATENT ACT. See Statutes (46 & 47 Viet. c. 57). PATENT ACTION, defeats threats action, 85, 89 , 94. but must be honest, 94. must test validity, 94. or infringement, 94 . G U 290 INDEX. PATENT ACTION — continued. defeats threats action — continued.. must be prosecuted with due diligence, 95. comparative diligence, 96. need not be successful, 95. brought by way of counterclaim, 97. brought by third party, does not avail to oust the 32nd section, 95. See also Theeats Action. PATENT GRANT, nature of, 107, 120, 123. for new inventions. Book of Bounty (p. 21), 183. Statute of Monopolies, 65, 238. to make, use, &c., 123. terms of, 115, 126, 253. as to geographical limits, 33, 126. ultra vires to be repealed, 276. prejudicial or inconvenient, 129. when void joro 109. how to be construed, 123, 207. consideration for, 108 — 110. See also Geant by the Ceown; Letters Patent ; Patent; Peioe Geant. PATENT EXILES, 1890. See Rules. PATENTEE, defined, by patent, 108, 245. by Patent Act, 1843 . .244. claiming to be patentee, 77, 140. a privileged person, 122, 124, 126, 251, 254. his profit and advantage, 125, 256. his right to sci.fa. to repeal later patent, 118. PENAL STATUTES, case of, reported, 232. bearing on Statute of Monopolies, 54. Pat. Act, s. 32.. 76. definition of, 52. construction of, 53, 54. benefit of, not grantable, 24, 34 (Book of Bounty, p. 13), 175, 236. action on, pleading general issue, 54, 143. See also Remedial Statutes ; Dispensation. PENALTY, composition for, 24, 34 (Book of Bounty, p. 28), 190, 236. grant of, before conviction, 24, 34 (Book of Bounty, p. 26), 186, 232, 234, 236. PERSON, defined, 244. PERSON AGGRIEVED. See Grievance. PERSONAL PRIVILEGE, of Chancery, 62. Bang’s Bench, 62. Common Pleas, 62. INDEX. 291 PERSONAL PRIVILEGrE — continued. of Exchequer, 63, 257. Parliament, 62. solicitor, 63. ousted by Statute of Monopolies, 58. PETITION, to the Crown, patentee’s, 108, 245, 250. to Board of Trade under sect. 22. . 100. form of, 100, 248. substance of, 101. proceedings upon, 100, 104, 247. hearing of, 105. PHILOSOPHER’S STONE, patent for, 202, 225. PLEA, of statutable right to licence, form of, 153. PLEADING, a statute, 52, 96, 140, 141. the general issue, 54, 143. statutable right to licence, 151, 153. to damages, 137, 145. specially to monopoly action, 144. See also Peactice. PRACTICE, generally, certificate of validity, 93. pleading a statute, 52, 96, 140, 141. trial of separate issues, 97, 146. agreement to save costs, 97. joinder of actions, 97, 135, 137, 139. setting down together, 97. delivery of particulars. See Paeticulaes. in monopoly action, to be tried by common law, 56, 237. joinder with threats action, 135, 138. statement of claim, 139. defence, 143. , pleading to damages, 137, 145. particulars, 145. trial of issues, 146. conduct of proceedings, 64, 150, 237. right to begin, 137, 144. treble damages, 57, 237. injunction, 133. double costs, 57, 58, 237. in patent action, jurisdiction, 9, 38, 236. due diligence, 95. commencing by counterclaim, 97. injunction, 152. plea of statutable right to licence, 151, 153. inspection, 243. particulars, 243. u2 292 INDEX, PEACTICE — continued. in threats action, joinder -with monopoly action, 135, 138. issue of validity, 91, 92. issue of threat or no threat, 97. severance of issues, 97, 1-16. plea of patent action, 94. by third party, 95. particulars, 92, 97. See also Paetichlaes. right to begin, 92, 136, 243. amendment of specification, 97. injunction, interlocutory, 74, 85. application in patent action, 88. in Vacation, 88. perpetual, 85, 88, 243. See also Injunction. damages, 90, 134. See also Damages. in application to Board of Trade, form of application, 248. submission of evidence, 100, 104, 247. hearing, 105. mandamus, 104. FR^^ITIXIEE, 64, 65, 238. PEE JUDICIAL GEANT, 211. is void, 227. ground for sci. fa., 276. jurisdiction of Privy Council, 129. of Board of Trade, 102. PEEEOGATIVE, abuse of, 1, 3. difficulty of redressing, 8. grounded in law, 205, 209. limitation of, 210. to regulate administration of justice, 40, 206, 223. to grant exemptions, 203, 204, 223. to grant protection, 59, 223. in respect of trade, 117, 203. of foreign trade, 206, 218, 224. of taxation, 225. of corporate liberties, 225. of granting a fair, 208. of matters of recreation, 202, 225, 229, 230. See Dispensing Powee. PEICES, enhanced by monopolies, 215, 227. PEINTING. See Copteight Patents. PEIOE GEANT, saving of, in patent, 261. INDEX. 293 PEIVILEGE, granted by patent, 122, 206. compared with chartered privileges, 122, 255. of trade fellowships, 121, 124, 252, 255. doctrine of, in Wren v. Weild, 14, 39. not available as defence to threats action, 76, 79. personal, 62, 63, 257. ousted by Statute of Monopolies, 58. See also Peesonal Peiyileqe. PEIVT COUNCIL, jurisdiction, ousted by Statute of Monopolies, 37, 236. stipulated for in patent, 129, 260. illustrations of its exercise, 44, 264 — 267. PEOCEDUEE, chapter on, 133 — 154. in action on statute, 231. in monopoly action, 18, 52 — 65, 133 — 151, 237. in threats action, 18, 85—97, 134 — 138, 243. application to Board of Trade, 19, 100 — 105, 242, 247. See also Foem ; High Couet ; Injunction ; Peactioe ; Pae- TICULAE8 ; Pleading ; and above headings. PEOCLAMATION, in furtherance of monopoly, avoided by Statute of Monopolies, 24, 34, 236. in aid of Earl of Berks’ patent, 262. King James’, collected and published, 6. PEOTECTION, in aid of monopoly disallowed, 69, 237. prerogative of, 59, 223. warrant of ; set out, 264. letter of ; set out, 265. EECITALS, in letters patent, bind patentee, not Crown, 107. patentee responsible for. 111, 112. effect of false recital, 271, 273, 274. qualifying grant, 114, 273. bearing on construction, 113, 115, 273. EEMEDIAL STATUTES, defined, 52. construction of, 54. See also Penal Statutes. EENT, reserved by patent, 130, 257, 261. EEQUIEEMENTS OF THE PUBLIC, in respect of patented invention, 102, 130, 242, 246. 294 INDEX. RESTEAINT, tending to monopoly, disallowed by statute, 24, 35, 236. by common law, 205 — 226. by tbe Crown or officer of the Crown, 35, 63. by subjects, 35, 206. See also Injunction. EEVENUES, reserved to Crown (Book of Bounty, p. 14), 176. EEVOCATION OE PATENT, 102. under Patent Act, 1883.. 242. by Privy Council, 129, 246. See also Sciee Facias. EIGHT TO BEGIN, in monopoly action, 137, 144, 146, 149. in threats action, 92, 136, 243. See also Issues ; Peactice. EOMAN LAW. See Civil Law. EOYAL BOUNTY, See Book of Bounty, passim^ 161 — 192. sources of, 5, 257. (Book of Bounty, pp. 17 — 29), 179 — 191. theoretical source of patent, 107, 110, 269. EOYAL LICENCE, tending to monopoly, void, 24, 29, 236. to carry on foreign trade, 29, 203, 263. go beyond the seas, 224. excuse a nuisance, 30. answer a privilege, 29, 251. follow a handicraft, 29. infringe the law, 33, 34, 121. See also Especial Licence; Pee- EOGATIVE. EULES, of Supreme Court, 0. XVI. r. 11 (Parties), 61. r. 48 (Third party), 61. O. XVIII. r. 1 (Causes), 136. O. XIX. r. 7 (Particulars), 92. r. 16 (Departure), 92. 0. XXI. r. 4 (Damages), 145. r. 19 (Pleading statute), 142. r. 20 (Abatement), 60, 63. 0. XXV. r. 2 (Point of law), 145. 0. XXXVI. r. 8 (Separate trial), 146. of Patent Office, as to proceedings at Board of Trade, 100, 101, 104, 247. as to application for patent, 108. SANCTUAEY, for debt, 223, 224. SAVING, in Statute of Monopolies, of patents for new inventions, 65 — 69, 238. for copyrights, 240, 256. of subsisting patents, 70, 239 — 242. of charters, 239. INDEX. 295 SAVING — continued,. in patent, of prior grant, 261. of subsisting trades, 129, 261. SOmE FACIAS, 38. when it lay, 275. Crown’s right to, 118. patentee’s right to, 118. when conceded to a subject, 276. abolished, 242. See also EEvocATioii of Patent. SEAL, great seal, indispensable to grant by Crown, 27, 29. King James’ rules concerning (Book of Bounty, p. 5), 167. of Patent Office, substituted for great seal, 27, 132, 244. See also Geant by the Ceown. SEAECH, power of, in old patents, 43, 257. in trade charter, 258. See also Seizuee of Goods. SEIZUEE OF GOODS, penalised by Statute of Monopolies, 45, 237. modem doctrine and practice, 47, 50, 51. power granted, by patent, 258. by trade charter, 258. See also Destehction of Infeinoino Goods — Foefeituee. SELLING. See Sole Peivilege to Sell. SETTING DOWN TOGETHEE FOE TEIAL, 97. STANDEE OF TITLE. See HALSEY^. BROTHERHOOD and WREN V. WEILD. SOLE, privilege, &c., 26, 32, 122, 141, 245, 251. to buy, 24, 26, 30, 227, 236. to sell, 24, 26, 30, 123, 125, 227, 236, 253, 255. to make, 24, 30, 116, 124, 219, 226, 228, 236, 245, 251. to work, 24, 30, 116, 236. to use, 24, 30, 102, 124, 153, 236, 245, 253, 255. to exercise, 123, 124, 245. SOLICITOE’S PEIVILEGE, 63. See also Peesonal Peivilege. SPECIFICATION, recited in patent, 109, 245. doctrine of disconformity, 110. construction of, 115. STAE CHAMBEE, jurisdiction in cases of monopoly, 128, 219. ousted by Statute of Monopolies, 37, 236. STATE OF THE LAW, as to monopolies reviewed, 1 — 20. 296 INDEX, STATEMENT OF CLAIM, in monopoly action, 39, 52, 139. STATUTES, St. Westr. Sec. c. 31 (error), 64. Magna Carta, 25 Edw. I., c. 18 (free trade), 230. c. 29 (forfeiture), 45. c. 29 (prerogative), 213. c. 30 (prerogative), 206. 1328. 2 Edw. III., c. 2 (prerogative), 209. 1335. 9 Edw. III., c. 1 (free trade), 218, 224, 230. 1340. 14 Edw. IIL, c. 15 (prerogative), 209. 1352. 25 Edw. III., c. 2 (free trade), 218, 230. (dispensation), 218. 1353. 27 Edw. III., c. 11 (free trade), 230. 1363. 37 Edw. III., c. 1 (free trade), 230. 1388. 11 Eic. II., c. 9 (impositions), 225. 1388. 12 Rio. II., c. 6 (pastime), 214, 222. (prerogative), 230. 1393. 16 Rio. II., c. 5 (praemunire), 64, 65, 238. 1399. 1 Hen. lY., c. 6 (patents). 111. c. 9 (pastimes), 222. 1401. 2 Hen. IV., c. 2 (patents). 111. 1402. 4 Hen. lY., c. 4 (patents), 112. 1410. 11 Hen. lY., c. 4 (pastimes), 214. (prerogative), 230. 1463. 3 Edw. IV., c. 4 (trade), 203, 207, 229. (procedure), 231. c. 6 (trade), 215. 1478. 17 Edw. lY., c. 3 (prerogative), 230. 1484. 1 Ric. III., c. 12 (trade), 215, 229. 1495. 11 Hen. VII., c. 17 (prerogative), 229. 1504. 19 Hen. VII., c. 21 (injunction), 63. 1534. 26 Hen. VIII., c. 10 (prerogative), 218. 1542. 33 Hen. VIII., c. 9 (pastimes), 214, 222. (prerogative), 230. 1563. 5 Eliz., c. 4, s. 24 (apprenticeship), 29, 63, 215, 219, 230. 1581. 23 Eliz., c. 10 (prerogative), 229. 1587. 29 Eliz., c. 4 (grievance), 41. 1589. 31 Eliz., c. 1, s. 1 (hindrance), 40. c. 5 (disquiet), 44. c. 11 (disturbance), 43. 1604. 1 Ja. I., c. 6 (injunction), 63. 1606. 3 Ja. I., c. 13 (prerogative), 229. 1610. 7 Ja. I., c. 5 (double costs), 58. 1624. 21 Ja. I., c. 2 (quiet), 44. (Monopolies) c. 3.. 8, 21 — 70, 235 — 242. preamble (Book of Bounty), 7, 157. (commentary), 22. (appendix), 235. s. 1 (commentary), 24 — 37. (appendix), 236. 8. 2 (commentary), 37, 38. (appendix), 236. 8. 3 (commentary), 39. (appendix), 236 8. 4 (commentary), 39 — 65. (settlement of text), 12. (pleading), 140. INDEX. 297 STATUTES — continued. 1624. 21 Ja, I., c. 3, 8. 4 (procedure), 150. (Monopolies — continued.) (appendix), 237. /See Monopoly Action. 8. 5 (appendix), 238. 8. 6 (commentary), 65 — 69. (sole privilege), 116, 124. (monopoly), 141. (appendix), 238. 8. 7 (saving), 66, 69. (appendix), 239. 8. 8 (commentary), 69, 70. (appendix), 239. ss. 9 — 14 (commentary), 70. ■ (appendix), 239, 242. c. 4 (penal statutes), 54, 143. c. 5 (quiet), 44. c, 8 (grievance), 41. c. 16 (quiet), 44. c. 17 (hindrance), 40. c. 25 (monopoly), 31. 1627. 3 Car. I., c. 1 (quiet), 44. 1640. 16 Oar. I., c. 1, s. 1 (grievance), 41. 1688. 1 Will. & Mar., c. 1 (dispensing power), 231, n. (e). 1802. 42 Geo. III., c. 56 (aid prayer), 62. 1825. 6 Geo. IV., c. 50, s. 60 (attaint), 64. 1832. 2 Will. IV., c. 39, s. 11 (imparlance), 64. 1835. 5 & 6 Wm. IV., c. 76, s. 133 (double costs), 58. 1842. 5 & 6 Viet., c. 97, s. 2 (double costs), 57, 58. c. 100 (forfeiture), 46. 1852. 15 & 16 Viet., c. 83, s. 6 (construction), 132. Schedule (patent grant), 120, 254. (form of patent), 123. (sole selling), 124. 1861. 24 & 25 Viet., c. 96, s. 3 (penal statutes), 53. 1863. 26 & 27 Viet., c. 125 (repeal), 12, 65, 238. (mere motion), 113. 1868. 32 & 33 Viet., c. 71, s. 71 (grievance), 41. 1872. 35 & 36 Viet., c. 94, s. 52 (grievance), 41. c. 98 (mere motion), 113. 1873. 36 & 37 Viet., c. 66, s. 16 (1) (Chancery), 37. (J.A.) (9) (Palatine Court), 38, 67. 8. 24 (5) (restraint), 35, 63. 8. 25 (8) (injunction), 133. s. 34 (3) (Chancery), 38, 56. 1881. 44 & 46 Viet., c. 58, s. 144 (essoin), 59. 1883. 46 & 47 Viet., c. 57, s. 5 (4) (specification), 109. (Pat. A.) s. 11 (person interested), 101. 8. 12 (2) (seal), 27, 132. 8. 18 (amendment), 97. 8. 22 (comp, lie.), 19, 151, 153. (commentary), 98 — 105. (appendix), 242. 8. 26 (procedure), 149. (appendix), 242. 8. 29 (procedure), 93. (appendix), 243. s. 30 (appendix), 243. 8. 31 (appendix), 93, 243. G X 298 INDEX. STATUTES — continued. 1883. 46 & 47 Viet., c. 57, s. 32 (tWats), 12, 16, 76, 78, 135, 146. (Pat. A. — continued.) (commentary), 71 — 97. (joinder), 138. (appendix), 243. 8. 33 (form of patent), 107. (appendix), 244. 8. 46 (patentee), 77. (appendix), 244. 8. 84 (appendix), 244. 8. 90 (grievance), 42. 8. 101 (rules), 247. 8. 113 (repeal), 239, 240. 8. 117 (appendix), 244. Sch., Form D. (commentary), 106 — 132. (appendix), 245. Schedule 3 (repeal), 239, 240. 1884. 48 & 49 Viet., c. 63, s. 2 (declaration), 107. 1887. 50 & 51 Viet., c. 59 (repeal), 112. 1888. 51 Viet., c. 3 (Statute of Monopolies, s. 2), 236. (Statute of Monopolies, s. 4), 12, 237. (Statute of Monopolies, s. 6), 238. (Statute of Monopolies, ss. 7, 9), 239. 1890. 63 & 54 Viet., c. 44, s. 5 (double costs), 58. SUGGESTION. See False Suggestion. SYNOPSIS, of Statute of Monopolies, 21, 68. first section of, 23, 24. of patent, 119. TAVERNS, licensing of, 241. THIRD PARTY PROCEDURE, 61. See also Peactice ; Peooedueb. THREATS, of patent action, &c., 11, 39, 243. mischief of, 75, 76, n. (r), 78. in respect of rubbishy patent, 78. addressed to third person, 79, 84. damaging a licensee, 135. what are, 78, 84. instances, 80 — 83. by agent, 77, 78. circular, 75, 78. letter, 81. advertisement, 75, 81. oral threats, 78, 82. constructive, 79. equivocal threats, 78. general warnings, 78, 79. vague threats, 84. repeated threats, 91. what is not a threat, 83. issue of threat or no threat, 97. INDEX. 299 TKREATS ACTION, 71—97. origin of the term, 76. raised by counterclaim, 89. dismissed as vexatious, 89. agent’s liability to, 78. when patent invalid, 93. aggrieved person in, 84, 94, 243. party defendant, 85. defeated by patent action, 94, 95. issues in, 91. procedure in, 92, 96, 97, 136. relief, injunction, 85—90. damages, 90, 91. declaration of invalidity, 93.. certificate of validity questioned, &c., 93. TOLEEATION. See Dispensing Power (grants of). TKADE, free by common law, 216, 218, 226. by statute law, 218, 230. regulated by statute, 29, 203, 207, n. (a), 215, 229, 230. by Royal licence, 117, 121, 206, 208, 224, 255. by Privy Council, 63, 263. fettered by trading privileges, 121, 124, 251, 258. rules of Merchant Taylors, 226. charters saved in Statute of Monopolies, 239. See also Charter ; Common Law ; Custom ; Especial Licence ; Pull Power ; Injunction ; Magna Charta ; Merchants ; Monopolies ; Prerogative ; Privilege ; Restraint ; Sole Privilege. TRADE MARK ACTION, 97. TREASURE TROVE, granted, 28, 261. TREASURY, defined, 244. UNITED KINGDOM, 33, 125, 126. USE OF INVENTION, prevented by patentee, 103, 152, 242. See also Licence by Patentee. USING, sole privilege of, 19, 24, 26, 30, 102, 124, 153, 236, 245, 253, 255. See also Sole Privilege. VALIDITY, of patent, at common law, 227, 235. by statute, 24, 30, 66, 68, 236, 238. in terms of grant, 129. Flemming’s four tests, 207. FuUer’s criterion, 219. to be tried by common law, 9, 37, 236. 300 INDEX VALIDITY — continued. of patent — continued. when in issue, doctrine of Wren v. Weild, 14, 71. Halsey y. Brotherhood^ 15. in monopoly action, 18, 139. in threats action, 91, 94. separate trial of, 146. certificate of, 93, 243. See also Monopolies ; Patent Geant ; Prejudicial Grant. VALUABLE CONSIDERATION, 110, 115, 274. VEND, patentee’s privilege of vending, 123, 125, 251, 253, 256. chartered privilege of vending, 125, 255. See also Sole Priyileoe to Sell. WAGER OF LAW, 60, 237. WARNING, of intended action, 13. general warning, 78, 79. See Threats. WARRANT, of assistance, 24, 36, 236. of protection, 59, 264. for dispensation, 34, 232, 236. to justices, 239. Kang James’ rules as to making (Book of Bounty, p. 6), 168. WAERANTIA BIEI, 218, 223. WORDS. See Definitions. WORKING AN INVENTION, 102, 153. privilege of, 124. sole privilege of, 19, 24, 26, 30, 236, 245. See also Sole Privilege. WRENy. weilb, pleadings in, 12. doctrine of, 13, 15, 71, 72, 75. See Table op Cases ; and Halsey v. Brotherhood. WRIT, of attaint, 64, 238. of error, 64, 238. printed bt c. f. eoworth, great new street, fetter lane, e.c. r TELEGRAPHIC ADDRESS- MaiJ, 1897. “ RHODRONS, LONDON.” ^ OF LAW WORKS PUBLISHED BY STBYBNS AND SONS, Ltd. 119 & 120, Chancery Lane, London. (And at 14, Bell Yard, Lincoln’s Inn.) 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Kelly’s French Law. — Vide “Marriage.” DOGS. — Lupton's Law relating to Dogs.— By Feedeeick Lupton, Solicitor. Royal 12mo. 1888. 5s. DOMESDAY BOOK AND BEYON D.— Three Essays in the Early History of England. By Professor Maitland, LL.D. 1897. 15s. EASEM ENTS.— Goddard’s Treatise on the Law of Easements. — By John Letbohen Goddaed, Esq., Barrister-at-Law. Fifth Edition. Demy 8vo. 1896. H. 5s. “ Has taken its place as a standard treatise by virtue of that best evidence of merit, the favour of those for whom it was written.” — J. of British Architects. “Nowhere has the subject been treated so exhaustively, and, we may add, so scientifically, as by Sir. Goddard. We recommend it to the most carefrd study of the law student, as weU as to the library of the practitioner.” — Law Times. Innes’ Digest of the Law of Easements. Fifth Edition. By L. C. Innes, lately one of the Judges of Her Majesty’s High Court of Judicature, Madras. Royal 12mo. 1895. Is. 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He has brought to the work all his father’s subdued enthusiasm for the Church, he has omitted nothing that lent value to the original treatise, he has expunged from it what could be spared, and has added to it everything that the ecclesiastical lawyer can possibly need to know, pouring a flood of luminous learning on the newer ecclesiastical problems with which he deals.” — Law Journal. Whitehead. — Vide “ Church Law.” ELECTION IN EQU ITY.— Serrell’s Equitable Doctrine of Election. By Geoege Seeeell, M.A., LL.D., Esq., Barrister-at- Law. Royal 12mo. 1891. 7«. Qd. ELECTIONS. — Day’s Election Cases in 1892 and 1893. — Being a Collection of the Points of Law and Practice, together with Reports of the Judgments. By S. H. Day, Esq., Barrister-at-Law, Editor of “ Rogers on Elections.” Royal 12mo. 1894. Is.Qd. Hedderwick’s Parliamentary Election Manual : A Practical Handbook on the Law and Conduct of Parliamentary Elections in Great Britain and Ireland, designed for the Instruction and Guidance of Candidates, Agents, Canvassers, Volunteer Assistants, &c. By T. C. H. Heddeewick, Esq., Barrister-at-Law. Demy 12mo. 1892. Is. 6d. “ Clear and well arranged.” — Law Quarterly Review. All standard Laio Works are kept in Stock, in laic calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 13 ELECTION S — continued. Rogers’ Law and Practice of Elections. — Vol. I. Registration, including' the Practice in Registration Appeals; Parliamentary, Municipal, and Local Oovernment; with Appendices of Statutes, Orders in Council, and Forms. Fifteenth Edition. With Addenda of Statutes to 1894. By Maurice Powell, Esq., Barrister- at-Law. Royal 12mo. \l. Is, “ The practitioner will find 'wfithin these covers everything- which he can be expected to know, well arranged and carefully stated.” — Law Times. Vol. II. Parliamentary Elections and Petitions ; with Appen- dices of Statutes, Rules and Forms. Seventeenth Edition. By S, H. Day, Esq., Barrister-at-Law. Royal 12mo. 1895. \l. Is. “The leading book on the difficult subjects of elections and election peti- tions.” — Lnvj Times. “ A very satisfactoiy treatise on election law . . . .” — Solicitors' Journal. Vol. III. Municipal and other Elections and Petitions, with Appendices of Statutes, Rules, and Forms. Seventeenth Edit. By Samuel H. Day, Esq., Barrister-at-Law. Royal r2mo. 1894. H. Is. This Volume treats of Elections to Municipal Councils [including the City of London), County Councils, Parish Councils, Rural and, Urban Eistrict Councils, Boards of Guardians [within and without London), Metropolitan Vestries, School Boards. ENGLISH LAW. — Pollock and Maitland’s History of English Law before the time of Edward I. — By Sir Frederick Pollock, Bart., andFRED.W. Maitland, Barristers-at-Law. 2 vols.roy.8vo. 1895. 21. EQUITY, and CHANCERY. Seton's Forms of Judgments and Orders In the High Court of Justice and in the Court of Appeal, having especial reference to the Chancery Division, with Practical Notes. Fifth Edition. By Cecil C. M. Dale, Esq., Barrister-at-Law, and W. Clowes, Esq., a Registrar of the Supreme Court. InSvols. Royal 8 vo. 1891-3. 6/. The Volumes sold separately, 21. each. “A monument of learned and laborious accuracy.” — Law Quarterly Beview. “ Seton in its new guise is well up to the character which it has for so many years sustained of being the best book of forms of judgment.” — Law Times. Smith’s Manual of Equity Jurisprudence. — A Manual of Equity Jurisprudence for Practitioners and Students, founded on the Works of Story, Spence, and other writers, comprising the Fundamental Principles and the points of Equity usually occurring in General Practice. By Josiah W. Smith, Q.C. Fourteenth Edition. By J. Trustram, LL.M., Esq., Barrister-at-Law. 12mo. 1889. 12^. ^d. Smith’s Practical Exposition of the Principles of Equity, illus- trated by the Leading Decisions thereon. For the use of Students and Practitioners. Second Edition. By H. Arthur Smith, M.A., LL.B., Esq., Barrister-at-Law. Demy 8vo. 1888. 21s. “This excellent practical exposition of the principles of equity is a work one can well recommend to students either for the bar or the examinations of the Incorporated Law Society. It will also be found equally valuable to the busy prac- titioner. It contains a mass of information well arranged, and is illustrated by all the leading decisions.” — Law Times. ESTOPPEL. — Everest and Strode’s Law of Estoppel. By Lancelot Fielding Everest, and Edmund Strode, Esqrs., Barristers-at-Law. Demy 8vo. 1884. 186-. EVIDENCE. — Wills’ Theory and Practice of the Law of Evidence. — By Wm. Wills, Esq., Barrister-at-Law. 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Demy 8vo. 1888. 16s. EXECUTORS. — Macaskie’s Treatise on the Law of Executors and Administrators, and of the Administration of the Estates of Deceased Persons. With an Appendix of Statutes and Forms. By S. C. Macaszie, Esq., Barrister-at-Law. 8vo. 1881. 10s. M. Williams’ Law of Executors and Administrators. — Ninth Edition. By the Hon. Sir Roland Vaughan Williams, a Justice of the High Court. 2 vols. Roy. 8vo. 1893. 3?. 16s. “ We can conscientiously say that the present edition will not only sustain, hut enhance the high reputation which the book has always enjoyed. The want of a new edition has been distinctly felt for some time, and in this work, and in this work only, will the practitioner now find the entire law relating to executors and administrators treated in an exhaustive and authoritative fashion, and thoroughly brought down to the present date.” — Law Journal. EXTRADITION. — K i rc h n e r’s L’ Ext rad itio n . — Recueil Renfermant in Extenso tous les Traites conclus jusqu’au ler Janvier, 1883, entre les • Nations civilisees, et donnant la solution precise des difficultes qui peuvent surgir dans leur application. Avec une Preface de M® Georges Lachaud, Avocat a la Cour d’ Appel de Paris. Public sous les auspices de M. C. E. Howard Vincent, Directeur des Affaires Criminelles de la Police Metropolitaine de Londres. Par F. J. Kirchner, Attache a la Direction des Affaires Criminelles. In 1 vol. (1150 pp.). Royal 8 VO. 1883. 21. 2s. *^* All standard Law Works are kept in Stocky in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 15 FARM, LAW OF. — Dixon’s Law of the Farm ; mcluding- the Cases and Statutes relating to the subject ; and the Agricultural Customs of Eugland and Wales, Fifth Edition. By Aubrey J. Spencer, Esq., Barrister-at-Law. Demy 8vo. 1892. 2Qs. “ The book is well and carefully edited.” — Law Journal. “ A complete modern compendium on agricultural matters.” — Law Times. FINANCE ACT.— Vide “ Death Duties.” FIXTURES. — Amos and Ferard on the Law of Fixtures and other Property partaking both of a Real and Personal Nature, Third Edition, By C. A. Ferard and W. Howland Roberts, Esqrs,, Bar- risters-at-Law. Demy 8vo. 1883. 18s, FORMS. — Archibald. — Vide “ Chamber Practice.” Bullen and Leake. — “ Pleading.” Chitty’s Forms of Practical Proceedings in the Queen’s Bench Division. Twelfth Edition. ByT. W. Chitty, Esq., Barrister-at- Law. Demy 8vo. 1883. (Published at 11. 18s.) Reduced to net 20s, Daniell’s Forms and Precedents of Proceedings in the Chan- cery Division of the High Court of Justice and on Appeal therefrom.— Fourth Edition. By Charles Burney, B. A., a Chief Clerk of the Plon. Mr. Justice Chitty. Royal 8vo. 1885. 21. 10s. “ The standard work on Chancery Procedure,” — Law Quarterly Review. ' FRAUD AND M ISREPRESENTATION.— Moncreiff’s Treatise on the Law relating to Fraud and Misrepresentation. — By the Hon. F. Moncreiff, Barrister-at-Law. 8vo. 1891. 21s. FRENCH CIVIL CCDE.—Cachard’s French Civil Code, with the various Amendments thereto, as in force on March 1 5th, 1 895. — By Henry Cachard, B. A., and Counsellor-at Law of the New York Bar, Licencie en Droit de la Faculte de Paris. Demy 8vo. 1895. 20s. “ It would involve a denial of the plainest justice to contend that the Code Civil has found in Mr. Cachard anything less than a brilliant and successful translator.” — Law Times. Code of Commerce. — Vide “Commercial Law.” GAME LAWS. — Warry’s Game Laws of England. With . an Appendix of the Statutes relating to G-ame, By Gr. Taylor Warry, Esq., Barrister-at-Law, Royal 12mo, 1896. 10s. &d. “ The author has treated the subject in a clear and lucid style.” — Law Times. GCCDWILL. — Allan’s Law relating to Goodwill. — By Charles E. Allan,M. A. ,LL.B., Esq., Barrister-at-Law. 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Demy 8vo. 1891. 2/. 10s. “ Continues to be a vast and closely packed storehouse of information on practice at Nisi Prius.” — Law Journal. NONCONFORMISTS. — Winslow’s Law Relating to Protestant Nonconformists and their Places of Worship; being a Legal Handbook for Nonconformists. By Bkginald Winslow, Esq., Barrister-at-Law. Post 8vo. 1886. 6s. NOTARY. — Brooke’s Treatise on the Office and Practice of a Notary of England. — With a full collection of Precedents. FifthEd. By Gr. F. Chambees, Esq., Barrister-at-Law. Demy 8vo. 1890. 1^. Is. OATHS.— Stringer’s Oaths and Affirmations in Great Britain and Ireland; being a Collection of Statutes, Cases, and Forms, with Notes and Practical Directions for the use of Commissioners for Oaths, and of all Courts of Civil Procedure and Offices attached thereto. By Francis A. Stringer, of the Central Office, Royal Courts of Justice, one of the Editors of the “Annual Practice.” Second Edition. Crown 8vo. 1893. 4s. Indispensable to all commissioners.” — Solicitors’ Journal. OTTOMAN CIVIL LAW. — Grigsby's Medjelle, or Ottoman Civil Law. — Translated into English. By W. E. Grigsby, LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. 21s. PARISH LAW.— Humphreys’ Parish Councils. — The Law relating to Parish Councils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By George Humphreys, Esq., Barrister-at-Law, Author of ‘ ‘ The Lawrelating to Cormty Councils,” &c. Royal 8vo. 1895. 10s. Steer’s Parish Law. Sixth Edition. By W. H. Macnamara, Esq., Barrister-at-Law. Demy 8vo. {In preparation.) PARTNERSHIP. — Pollock’s Digest of the Law of Partnership; incorporating the Partnership Act, 1890. Sixth Edition. By Sir Frederick; Pollock, Bart., Barrister-at-Law. Author of “Principles of Contract,” “ The Law of Torts, ” &c. Demy 8vo. 1895. 8s. 6^?. “We are confident this book will be most popular as well as extremely use- ful.” — Law Times. Turner. — Vide “Conveyancing.” PATENTS. — Edmunds on Patents. — The Law and Practice of Letters Patent for Inventions. By Lewis Edmunds, Q.C. Second Edition. By T. M. Stevens, E.sq., Barrister-at-Law. Roy. 8vo. 1897. ll. 12s. “We have nothing but commendation for the book.” — Solicitors’ Journal. “ It would be difiicult to make it more complete.” — Law Times. Edmunds’ Patents, Designs and Trade Marks Acts, 1883 to 1888, Consolidated with an Index. Second Edition. By Lewis Edmunds, Q.C., D. Sc., LL.B. Imp.8vo. 1895. Net'ls.Qd. Johnson’s Patentees’ Manual. — A Treatise on the Law and Practice of Patents for Inventions. Sixth Edition. By J ames John- son, Esq., Barrister-at-Law ; and J. Henry Johnson, Solicitor and Patent Agent. Demy8vo. 1890. 10s. 6rf. Morris. — Vide “ Conveyancing.” Thompson’s Handbook of Patent Law of all Countries. — By Wm. P. Thompson. Tenth Edition. 12mo. 1896. Net, 2s. 6rf. PERPETUITIES. — Marsden’s Rule against Perpetuities. — A Treatise on Remoteness in Limitation. By Reginald G. Marsden, Esq.. Barrister-at Law. Demy 8vo. 1883. 16s. PERSONAL PROPERTY. — Smith. — Vide “ Real Property.” *** All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 23 PLEADING. — Sullen and Leake’s Precedents of Pleadings, with Notes and Rules relating to Pleading. Fifth Edition. Revised and Adapted to the Present Practice in the Queen’s Bench Division of the High Court of Justice. By Thomas J. Bullen, Esq., Barrister- at-Law, Cyril Dodd, Esq., Q.C., and C. W. Clifford, Esq., Bar- rister-at-Law. Demy 8vo. 1897. 38s. “ The standard -work on modern pleading.” — Law Journal, April 10, 1897. Odgers’ Principles of Pleading in Civil Actions, with observations on Indorsements on Writs, Trial without Pleadings, and other business Preliminary to Trial.— Second Edition. By W. Blake Odgers, LL.D., Q.C., Author of “A Digest of the Law of Libel and Slander.” Demy 8vo. 1894. 10s. 6^f. “ The student or practitioner who desires instruction and practical guidance in our modern system of pleading cannot do better than possess himself of Mr. Odgers’ hook.” — Law Journal. POISONS. — Reports of Trials for Murder by Poisoning. — With Chemical Introductions and Notes. By Gr. Latham Browne, Esq., Barrister- at-Law, andC. GT. Stewart, Senior Assistant in the Labo- ratory of St. Thomas’s Hospital, &c. Demy 8vo. 1883. 12s. Qd. POWERS. — Farwell on Powers. — A Concise Treatise on Powers. Second Edition. By George Farwell, Esq., Q.C., assisted by W. R. Sheldon, Esq., Barrister-at-Law. Royal 8vo. 1893. ll. 5s. “ The practitioner and the judge will find it comprehensive and complete.” — Law Times. PRESCRIPTION. — Herbert’s History of the Law of Prescription in England. — By T. A. Herbert, Esq., Barrister-at-Law. Demy 8vo. 1891. 10s. PRI NCI PAL AND AGENT. — Wright's Law of Principal and Agent. By E. B. Wright, Esq., Barrister-at-Law. Demy 8vo. 1894. 18s. “ Clearly arranged and clearly written. Completely up to date.” — Law Tim es. “ The work is remarkably complete.” — Law Journal. “ May with confidence be recommended to all legal practitioners as an accu- rate and handy text book on the subjects comprised in it.” — Solicitors^ Journal. PRINTERS, PUBLISHERS, &,c. — Powell’s Laws specially affect- ing Printers, Publishers and Newspaper Proprietors. By Arthur Powell, Esq., Barrister-at-Law. Demy 8vo. 1889. 4s. PRIVY COUNCIL LAW.— Wheeler’s Privy 9ouncil Law: A Synop- sis of all the Appeals decided by the Judicial Committee (including Indian Appeals) from 1876 to 1891. Together with a precis of the Cases from the Supreme Court of Canada. By George Wheeler, Esq., Barrister-at-Law, and of the Judicial Department of the Privy Council. Royal 8 VO. 1893. 31s. Giif. “ The cases are summarised with brevity and with the skill of a practised lawyer in seizing upon essential facts and legal points embodied in each case, and in distinguishing law and practice.” PROBATE. — Powles and Oakley's Law and Practice relating to Probate and Administration. By L. D. Powles, Barrister-at- Law, and T. W. H. Oakley, of the Probate Registry, (Being a Third Edition of “ Browne on Probate.”) Demy8vo. 1892. H. 10s. PROPERTY. — See also “ Real Property.” Raleigh’s Outline of the Law of Property.— Demy 8vo. 1890. 7s. 6i. Strahan’s General View of the Law of Property.— Intended as a first book for Students. By J. A. Strahan, assisted by J. Sinclair Baxter, Esqrs., Barristers- at- Law. Demy 8vo. 1895. 12s. Qd. “ A well written and useful work.” — Tmw Notes. “There is no work that we know which we should more confidently place in the hands of one beginning the study of the law.” — Law Times. ■*** All standard Law Works are kept in Stock, in law calf and other bindings. 24 STEVENS AND SONS, LIMITED, PUBLIC HEALTH. — Bazalgette and Humphreys. — Vide “Local and Municipal Government.” PUBLIC MEETINGS.— Chambers’ Handbook for Public Meet- ings, including Hints as to the Summoning and Management of them. Second Edition. By George E. Chambers, Esq., Barrister- at-Law. Demy 8vo. 1886. Net, 2s. Qd. QUARTER SESSIONS.— Archbold.— “ Criminal Law.” RAILWAY RATES. — Darlington’s Railway Rates and the Carriage of Merchandise by Railway ; including the Provisional Orders of the Board of Trade as sanctioned by Parliament, containing the Classification of Traffic and Schedule of Maximum Bates and Charges applicable to the Eailways of Great Britain and Ireland. By H. B. Darlington, Esq., Barrister-at-Law. Demy 8vo. 1893. U. 5s. RAILWAYS.— Browne and Theobald’s Law of Railway Com- panies. — Being a Collection of the Acts and Orders relating to Bailway Companies in England amd Ireland, with Notes of all the Cases decided thereon, and Appendix of Bye-Laws and Standing Orders of the House of Commons. Second Edition. By J. H. Balfour Browne, Esq., one of Her Majesty’s Counsel, and H. S. Theobald, Esq., Barrister-at-Law. Boyal 8vo. 1888. U. 15s. “ Contains in a very concise form the whole law of railways.” — The Times. RATES AND RATING. — Castle’s Law and Practice of Rating. — Third Edition. By Edward James Castle, Esq., one of Her Majesty’s Counsel. Demy 8vo. 1895. 25s. “ A sure and safe guide, avoiding all speculation as to what the law might he.” — Law Magazine. Mr. Castle’s hook has hitherto held a very high place, and the success that has attended it seems assured to the new edition.” — Law Journal. “ A compendious treatise, vliich has earned the goodwill of the Profession on account of its conciseness, its lucidity, and its accuracy.” — Law Times. Chambers’ Law relating to Local Rates; with especial reference to the Powers and Duties of Bate-levying Local Authorities, and their Officers; comprising the Statutes in full and a Digest of 718 Cases. Second Edition. By G. F. Chambers, Esq., Barrister-at- Law. Boyal 8vo. 1889. 10^. &d. REAL PROPERTY. — Digby’s History of the Law of Real Pro- perty. — Foiu’th Edition. Demy 8vo. 1892. 12s. Qd. Leake’s Elementary Digest of the Law of Property in Land. — Containing : Introduction. Part I. The Sources of the Law. — Part II. Estates in Land. By Stephen Martin Leake, Barrister- at-Law. Demy 8vo. 1874. Net, 15s. Leake’s Digest of the Law of Property in Land. — Part III. The Law of Uses and Profits of Land. By Stephen Martin Leake, Barrister-at-Law. Demy 8vo. 1888. Net, 15s. Lightwood’s Treatise on Possession of Land : with a chapter on the Beal Property Limitation Acts, 1833 and 1874. — By John M. Lightwood, Esq., Barrister-at-Law. Demy 8vo. 1894. 15s. All standard Law Works are kept in Stock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 25 REAL PROPERTY — continued. Shearwood’s Real Property. — A Concise Abridgment of tbe Law of Real Property and an Introduction to Conveyancing. Designed to facilitate the subject for Students preparing for examination. By Joseph A. Sheaewood, Esq., Barrister-at-Law. Third Edition. Demy 8vo. 1885. 8«. 6c?. Shelford's Real Property Statutes. — Comprising the principal Statutes relating to Real Property passed in the reigns of King William IV. and Queen Victoria, with Notes of Decided Cases. Ninth Edition. By Thomas H. Caeson, assisted by Haeold B. Bompas, Esqrs., Barristers -at -Law. Royal 8vo. 1893. 30s. “ Absolutely indispensable to conveyancing and equity lawyers.” Smith’s Real and Personal Property. — A Compendium of the Law of Real and Personal Property, primarily connected with Con- veyancing. Designed as a Second Book for Students, and as a Digest of the most useful learning for Practitioners. By Josiah W. Smith, B.C.L., Q.C. Sixth Edition. By the Authoe and J. Teus- TEAM, LL.M., Barrister-at-Law. 2 vols. Demy 8vo. 1884. 2?. 2s. “ A book which he (the student) may read over and over again with profit and pleasure.” — Law Times. “ Will be found of very great service to the practitioner.”— Journal. “ A really useful and valuable work on our system of Conveyancing.” — Law Students' Journal. Strahan. — Vide “Property.” R EG I ST RAT I O N .—Rogers.— Vide “ Elections.” Coltman’s Registration Cases. — ^Vol. 1. (1879—1885). Royal 8vo. Calf. Net, 2?. 8s. Fox and Smith’s Registration Cases. — Vol. I. (1886 — 1895). Royal 8 VO. Calf, net, 21. 10s. Smith’s (C. Lacey) Registration Cases. Vol. I., Part I. (1895-96). Net, 6s. Qd. Part II., 1896, 5s. Lawson’s Notes of Decisions under the Representation of the People Acts and the Registration Acts, 1885 — 1893, inclu- sive.— By Wm. Lawson, Barrister-at-Law. Demy 8vo. 1894. 24s. Ditto, ditto, for 1894, 4s. Qd. ; for 1895 4s. %d. REQUISITIONS ON TITLE. — Dickins. — “Conveyancing.” RIVERS POLLUTION.— Haworth’s Rivers Pollution.— The Statute Law relating to Rivers Pollution, containing the Rivers Pollution Prevention Acts, 1876 and 1893, together with the Special Acts in force in the West Riding of Yorkshire and the County of Lancaster. By Chaeles Joseph Hawoeth, Solicitor, B.A. (Cantab.), LL.B. (London). Royal 12mo. 1897. 6s. ROMAN LAW. — Abdy and Walker’s Institutes of Justinian, Trans- lated, with Notes, by J. T. Abdy, LL.D., and the late Beyan Walkee, M.A., LL.D. Crown 8vo. 1876. 16s. Abdy and Walker’s Commentaries of Gaius and Rules of Ulpian. With a Translation and Notes, by J. T. Abdy, LL.D., late Regius Professor of Laws in the University of Cambridge, and the late Beyan Walkee, M.A., LL.D. New Edition by Beyan Walkee. Crown 8vo. 1885. 16s. Buckler’s Origin and History of Contract in Roman Law down to the end of the Republican Period. By W. H. Bucklee, B.A., LL.B. Post 8vo. Second Edition. {In the press.) Goodwin’s XII. Tables. — By Feedeeick Goodwin, LL.D. London. Royal 12mo. 1886. 3s. Qd. All standard Law Works are kept in Stock, in law calf and other bindings. 26 STEVENS AND SONS, LIMITED, ROMAN LAW — continued. Greene’s Outlines of Roman Law. — Consisting chiefly of an Analysis and Summary of the Institutes, For the use of Students. By T. Whitcombe Geeene, Barrister-at-law. Fourth Edition. Foolscap 8 vo. 1884. 7s. ^d. Grueber's Lex Aquilla. — The Roman Law of Damage to Property: being a Commentary on the Title of the Digest “ Ad Legem Aqui- liam” (ix. 2 ). With an Introduction to the Study of the Corpus luris Civilis. By Erwin Grijebee, Dr. Jur., M.A. 8 vo. 1886. 10s. ^d. Holland’s Institutes of Justinian. — Second Edition. Extra fcap. 8 vo. 1881. 5s. Holland and Shadwell’s Select Titles from the Digest of Jus- tinian. — Demy 8 vo. 1881. 14s. Holland’s Gentilis, Alberici, I.C.D., I.C.P.R., de lure Belli Libri T res. — Edidit T, E. Holland, I.C.D. Small 4to,, half-morocco. 21 s. Monro’s Digest XIX. 2. Locati Conduct!. Translated, with Notes, by C. H. Monro, M.A. Crown 8 vo. 1891. 5s. Monro’s Digest XLVIl. 2, De Furtis. Translated, with Notes, by C. H. Monro, M.A. Crown 8 vo. 1893. 5s. Moyle’s Imperatoris Justinian! Institutiones. — Third Edition. 2 vols. Demy 8 vo. 1896. \l. 2s. Poste’s Elements of Roman Law. — By Gains. With a Translation and Commentary. Third Edition. By Edward Poste, Esq,, Barrister- at-Law. Demy 8 vo. 1890. 18s. Roby’s Introduction to the Study of Justinian’s Digest, con- taining an account of its composition and of the Jurists used or referred to therein. By H. J, Roby, M.A. Demy 8 vo. 1886. 9s. Roby’s Justinian’s Digest, — Lib. VII., Tit. I. De Usufructu, with a Legal and Philological Commentary. By H. J. Roby, M.A. Demy 8 vo. 1884. 9s. Or the Two Parts complete in One Volume. Demy 8 vo. 18s. Sohm’s Institutes of Roman Law. — By Rudolph Sohm, Professor in the University of Leipzig. Translated (from the Fourth Edition of the German) by J. C, Ledlie, B.C.L., M.A. With an Introductory Essay by Erwin Grueber, Dr. Jur., M.A. 8 vo. 1892. 18s. Walker’s Selected Titles from Justinian’s Digest. — Annotated by the late Bryan Walker, M.A., LL.D. Part I. Mandati vel Contra. Digest xvii. i. Crown 8 vo. 1879. 5s. Part II. De Adquirendo rerum dominio, and De Adquirenda vel amittenda possessione. Digest xli. 1 , 2 . Crown 8 vo. 1880. 6 s. Part III. De Condictionibus, Digest xii. 1 and 4 — 7, and Digest XIII. 1 — 3. Crown 8 vo. 1881. 6 s. Walker’s Fragments of the Perpetual Edict of Salvius Julianus. Collected and annotated by Bryan Walker, M.A., LL.D. Crown 8 vo. 1877. 6 s. Whewell’s Grotius de Jure Belli et Pads, with the Notes of Bar- beyrac and others ; accompanied by an abridged Translation of the Text, by W. Whewell, D.D. 3 vols. Demy 8 vo. 1853. 12 s. The Translation separate. 65 . RULING CASES.— Campbell.— “Digests.” SALE OF GOODS. — Lely and Craies’ Sale of Goods Act, 1893. — With Introduction, Notes, and Index. By J. M. Lely and W. F. Craies, Esqrs., Barristers-at-Law. Royal 8 vo. 1894. Net Is. *** All stoMdardLaw Works are kept in Stocky in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 27 SALES. — Blackburn on Sales. A Treatise on the Effect of the Con- tract of Sale on the Legal Rights of Property and Possession in Goods, Wares, and Merchandise. By Lord Blackburn. 2nd Edit. By J. C. Graham, Esq., Barrister-at-Law. Royal 8vo. 1885. IZ. Is. “We have no hesitation in saying that the work has been edited with re- markable ability and success.” — Law Quarterly Review. SALES OF LAND. — Clerke and Humphry’s Concise Treatise on the Law relating to Sales of Land. By Aubrey St. John Clerke, and Hugh M. Humphry, Esqrs., Barristers-at-Law. Royal 8vo. 1885. \l. 5s. SALVAGE. — Kennedy’s Treatise on the Law of Civil Salvage.— By the Hon. Sir William R. Kennedy, a Justice of the High Court. Royal 8 VO. 1891. 12s. “The best work on the law of salvage. It is a complete exposition of the subject, and as such is accurate and exhaustive.” — Law Times. SHERIFF LAW.— Mather’s Compendium of Sheriff Law, espe- cially in relation to Writs of Execution.— By Philip E. Mather, Solicitor and Notary, formerly Under Sheriff of Newcastle-on-Tyne. Royal 8vo. 1894. 25s. “We think that this book will be of very great assistance to any persons who may fill the positions of high sheriff and under-sheriff from this time forth. The whole of the legal profession will derive great advantage from having this volume to consult.”— i/aw Times. SHIPCWNERS. — Holman’s Handybook for Shipowners and Masters. Eourth Edition. By H. Holman, Esq., Barrister-at-Law. Royal 8vo. 1896. 5s. SHI PPI NG.— Pulling’s Merchant Shipping Act, 1 894. — With Intro- duction, Notes, and Index. By Alexander Pulling, Esq., Barris- ter-at-Law. Royal 8vo. 1894. Net 6s. Pulling’s Shipping Code; being the Merchant Shipping Act, 1894 (57 & 58 Viet. c. 60) ; With Introduction, Notes, Tables, Rules, Orders, Forms, and a Full Index. — By Alexander Pulling, Esq., Barrister-at-Law. Royal 8vo. 1894. Net Is. (id. Interleaved and hound in blue leather, net 11s. Temperley’s Merchant Shipping Act, T894 (57 & 58 Viet, c. 60). With an Introduction ; Notes, including all Cases decided under the former enactments consolidated in this Act ; a Comparative Table of Sections of the Former and Present Acts ; an Appendix of Rules, Regulations, Forms, etc., and a Copious Index. — By Robert Temperley, Esq., Barrister-at-Law. Royal 8vo. 1895. 25s. “ There is evidence* of unusual care and industry in Mr. Temperley’s elaborate work, by far the most comprehensive which has yet appeared on this lengthy and important consolidating measure.” — Law Times. “ A full, complete, and most satisfactory work.” — Law Quarterly Review. “A monument of well-directed industry and knowledge directed to the elucidation of the most comprehensive and complicated Act.” — Law Journal. SLAN DER. — Odgers. — Vide “ Libel and Slander.” SOLICITORS. — Cordery’s Law relating to Solicitors of the Supreme Court of Judicature. With an Appendix of Statutes and Rules, and Notes on Appointments open to Solicitors, and the Right to Admission to the Colonies. Second Edition. By A. Cordery, Esq., Barrister-at-Law. Demy 8vo. 1888. 16«. T urner. — Vide “Conveyancing” and “Vendors and Purchasers.” All standard Lem Works are kept in Stock, in law calf and other bindings. 28 STEVENS AND SONS, LIMITED, SPECIFIC PERFORMANCE. — Fry’s Treatise on the Specific Performance of Contracts. By the Eight Hon. Sir EdwaedFey. Third Edition. By the Author and E. Poetsmouth Eey, Esq., Barrister -at-Law. Royal 8vo. 1892. \l. 16s. “ The standaid work on Specific Performance .” — Law Gazette. STAMP ACTS. — Highmore’s Stamp Act, 1891, and the Stamp Duties Management Act, 1891. With an Introduction and Notes, and a copious Index. By Nathaniel Joseph Highmoee, Esq., Barrister- at-Law, Assistant -Solicitor of the Inland Revenue. Demy 8vo. 1891. 5s. “ A useful guide to those who desire to understand the present state of the stamp laws .” — Law Journal. STATUTE LAW.— Wilberforce on Statute Law. The Principles which govern the Construction and Operation of Statutes. By E. WiLBEEEOECE, Esq., Barrister- at- Law. 1881. 18s. STATUTES, and vide “ Acts of Parliament.” Chitty's Statutes. — New Edition. — The Statutes of Practical Utility, from the earliest times to 1894 inclusive. Arranged in Alpha- betical and Chronological Order ; with Notes and Indexes. Fifth Edition. By J. M. Lely, Esq., Barrister-at-Law. Royal 8vo. Complete with Index . In \Z Volumes. 1894-1895. 13^. 13s. Annual Supplement for 1895. By J. M. Lely, Esq. 5s. For 1896. 10s. “It is a book which no public library should be without.” — Spectator. “ We think that the present edition will not only keep up, but add to the reputation of the work, and render it a work of permanent value to the practising lawyer.” — Solicitors' Journal. “The profession will feel grateful both to the editor and the publishers of a work which will be found of the highest value.” — Law Journal. “A legal work of the very highest importance. . . . Few besides lawyers will, we suspect, realise the amount of work which such an undertakirg involves to the editor, who appears to have spared no pains to give a clear, orderly, and methodical character to the com- pilation.” — Baily Xews. “This collection has fulfilled a purpose of usefulness only to be understood by those who are acquainted with the amazing com- plexity of English statute law. with its bewildering incoherence and painful heterogeneity.” — Pall Mall Gazette. “ Ihe efforts of the editor of Chitty’s Statutes are directed to the collection and arrangement, under convenient'heads, of all the body of practical legislation under which we live. — Baily Chronicle. “ Indispensable in the library of every lawyer.” — Saturday Review. “ It is needless to enlarge on the value of ‘ Chitty’s Statutes’ to both the Bar and to Solicitors, for it is attested by the experience of many years.” — The Times. “We have examined, with some care and much interest, each volume as it has come with rapidity and accuracy from the press, and we must confess to some amazement at the remarkable skill and expedition with which the compilation has progressed. Not only to lawyers, but to all concerned with the laws of England Chitty’s Statutes of Practical Utility are of essential importance, whilst to the practising lawyer they are an absolute necessity.” — Laio Times. All standard Law Works are kept in Stocky in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 29 SUMMARY CONVICTIONS.— Raley’s Law and Practice of Sum- mary Convictions under the Summary Jurisdiction Acts, 1848 — 1884; including Proceedings Preliminary and Subse- quent to Convictions, and the Responsibility of Convicting Magistrates and their Officers, with the Summary J urisdic- tion Rules, 1886, and Forms. — Seventh Edition. By W. H. Macnamaea, Esq., Barrister-at-Law. Demy 8vo. 1892. 24s. TAXPAYERS’ GUIDES.— “House,” “Income,” & “Land Tax.” THEATRES AND MUSIC HALLS.— Geary’s Law of Theatres and Music HaJIs, including Contracts and Precedents of Contracts. — By W. N. M. Geaey, J.P. With Historical Introduc- tion. By James Williams, Esqrs., Barristers-at-Law. 8vo. 1885. 5s, TITHES. — Studd’s Law of Tithes and Tithe Rent-Charge. — Being a Treatise on the Law of Tithe Rent -Charge, with a sketch of the History and Law of Tithes prior to the Commutation Acts, and in- cluding the Tithe Act of 1891, with the Rules thereunder. Second Edition. By Edwaed Eaiefax Studd, Esq., Barrister-at-Law. Royal 12mo. 1891. 6s. “ This work is thoroughly reliable.” — Solicitors' Journal. TORTS. — Addison on Torts. — A Treatise on the Law of Torts; or Wrongs and their Remedies. Seventh Edition. By Hoeacb Smith, Esq., Bencher of the Inner Temple, Metropolitan Magis- trate, Editor of “Addison on Contracts,” &c., and A. P. Peeceval Keep, Esq., Barrister-at-Law. Royal 8vo. 1893. \l. 18s. “As an exhaustive digest of all the cases which are likely to be cited in practice it stands without a rival.” — Law Journal, “As now presented, this valuable treatise must prove highly acceptable to judges and the profession.” — Law Times. “ An indispensable addition to every lawyer’s library.”— iaw Magazine. Ball’s Leading Cases on the Law of Torts, with Notes. Edited by W. E. Ball, LL.D., Esq., Barrister-at-Law, Author of “Prin- ciples of Torts and Contracts.” Royal 8 VO. 1884. IL Is. Bigelow’s Elements of the Law of Torts. — A Text-Book for Students, By Melville M. Bigelow, Ph.D., Lecturer in the Law School of the University of Boston, U.S.A. Crown 8vo. 1889. 10s. 6d. Innes’ Principles of the Law of Torts. — By L. C. Innes, lately one of the J udges of the High Court, Madras, Author of “A Digest of the Law of Easements.” Demy 8vo. 1891. 10s. 6d. “ A useful addition to any law library.” — Law Quarterly Review. Pollock’s Law of Torts: a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Fourth Edition. By Sir Feedeeicz Pollock, Bart., Barrister-at-Law. Author of “ Principles of Contract,” “ A Digest of the Law of Partnership,” &c. Demy 8vo. 1895. 21s. “ Concise, logically arranged, and accurate.”— Times. “ A book which is well worthy to stand beside the companion volume on ‘Contracts.’ Unhke so many law-books, especially on this subject, it is no mere digest of cases, but bears the impress of the mind of the writer from beginning to end.” — Law Journal. Shearwood’s Sketch of the Law of Tort for the Bar and Solicitors’ Final Examinations. By Joseph A. Sheaewood, Esq., Barrister-at- Law. Royal 12mo. 1886. 3s. *** All standard Law Works are kept in Stocky in law calf cmd other bindings. 30 STEVENS AND SONS, LIMITED, TRADE MARKS. — Aston. — Vid^ “Patents.” Sebastian on the Law of Trade Marks and their Registration, and matters connected therewith, including a chapter on Goodwill ; together with the Patents, Designs and Trade Marks Acts, 1883-8, and the Trade Marks Rules and Instructions thereunder ; Forms and Precedents; the Merchandize Marks Act, 1887, and other Statutory- Enactments; the United States Statutes, 1870-81, and the Rules and Forms thereunder ; and the Treaty with the United States, 1877. Third Edition. By Lewis Boyd Sebastian, Esq., Barrister-at- Law. Demy 8vo. 1890. \l. bs. “ Stands alone as an authority upon the law of trade-marks and their regis- tration.” — Law Journal. ‘‘It is rarely we come across a lawbook which embodies the results of years of careful investigation and practical experience in a branch of law, or that can be unhesitatingly appealed to as a standard authority. This is what can be said of lyir. Sebastian’s book.” — Solicitors' Journal. Sebastian's Digest of Cases of Trade Mark, Trade Name, T rade Secret, Goodwill, &,c., decided in the Courts of the United Kingdom, India, the Colonies, and the United States of America. ByLEWis Boyd Sebastian, Esq., Barrister-at-Law. 8vo. 1879. U. U. “ Wni be of very great value to aU practitioners who have to advise on matters connected -with trade marks.” — Solicitors' Journal. TRAMWAYS. — Sutton’s Tramway Acts of the United Kingdom; with Notes on the Law and Practice, an Introduction, including the Proceedings before the Committees, Decisions of the Referees with respect to Locus Standi, and a Summary of the Principles of Tramway Rating, and an Appendix containing the Standing Orders of Par- liament. Rules of the Board of Trade relating to Tramways, &c. Second Edition. By Heney Sutton, assisted by Robeet A. Ben- nett, Barristers-at-Law. Demy 8vo. 1883. 15s. TRUST FUNDS. — Geare’s Investment of Trust Funds. — Incorpo- rating the Ti’ustee Act, 1888. Second Edition. Including the Trusts Investment Act, 1889. By Edwaed Aeundel Geaee, Esq., Barrister-at-Law. Royal 12mo. 1889. 7s. Qd. TRUSTS AND TRUSTEES.— Ellis’ Trustee Act, 1893, including a Guide for Trustees to Investments. By Aethue Lee Ellis, Esq., Barrister-at-Law. Fifth Edit. Roy. 12mo. 1894. 6s. “ The entire Act is annotated, and the way in which this is done is satis- factory.” — Law Journal. “Mr. Arthur Lee Ellis gives many valuable hints to trustees, not only -with regard to the interpretation of the measure, but also with regard to invest- ments.” Godefroi’s Law Relating to Trusts and Trustees. — Second Edit. By Heney Godefeoi, of Lincoln’s Inn, Esq., Barrister-at-Law. Royal 8vo. 1891. \l. 12s. “ The second edition of this work which lies before us is a model of what a legal text-book ought to be. It is clear in style and clear in arrangement.” — Law Times. VENDORS AND PURCHASERS. — Dart’s Vendors and Pur- chasers. — A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. By the late J. Heney Daet, Esq., one of the Six Conveyancing Counsel of the High Court of J ustice. Chancery Di-vision. Sixth Edition. By William Baebee, Esq., Q.C., Richaed Buedon Haldane, and William Robeet Sheldon, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1888. 3^. 15s. All standard Law Works are kept in Stocky in law calf and other bindings. 119 & 120, CHANCEHY LANE, LONDON, W.C. 31 VENDORS AND PU RCHASERS.— Turner’s Duties of Solicitorto Client as to Sales, Purchases, and Mortgages of Land. — Second Edition. By W. L. Hacon, Esq., Barrister-at-Law. Demy 8vo. 1893. 10s. “ The most skilled in practical conveyancing would gain many useful hints from a perusal of the book, and we recommend it in all confidence.” — Law Notes. See also Conveyancing. — “ T urner." Webster’s Law Relating to Particulars and Conditions of Sale on a Sale of Land. — With Appendix of Forms. Second Edition. By William Feedeeick Webstee, Esq., Barrister-at-Law. Boyal 8vo. 1896. 25s. “ This is the Second Edition of a well arranged and useful hook, and the use- fulness Avill not be impaired by the fact that the authority for each proposition and the reference to such authority are cited in the text itself instead of being relegated to a footnote.” — Law Journal. WAR, DECLARATICN CF.— Cwen’s Declaration of War.--A Survey of the Position of Belligerents and Neutrals, with relative considerations of Shipping and Marine Insurance during War. By Douglas Owen, Esq., Barrister-at-Law. Demy 8vo. 1889. 21s. WILLS. — Theobald’s Concise Treatise on the Law of Wills. — Fourth Edition. By H. S. Theobald, Esq., Barrister-at-Law. Boyal 8vo. 1895. 30s. “ A concise and convenient work of reference. ... A condensed and trust- worthy digest.” — Law Quarterly Review. “ Comprehensive though easy to use, and we advise all conveyancers to get a copy of it without loss of time.” — Laxo Joux'nal. “ Of great ability and value. It bears on every page traces of care and sound judgment.” — Solicitors' J ournal. ‘‘ The work is, in our opinion, an excellent one, and of very great value, not only as a work of reference, out also tor those who can afford to give special time to the study of tae subject with which it deals.” — Law Student's Journal. Weaver’s Precedents of Wills. — A Collection of Concise Precedents of Wills, with Introduction, Notes, and an Appendix of Statutes. By Chaeles Weaves, B.A. Post 8vo. 1882. 5«. WINDING UP. — Palmer’s Company Precedents. — For use in rela- tion to Companies, subject to the Companies Acts, 1862 — 1890. Part II. Winding-Up Foems and Peactice. Arranged as follows : — Compulsory Winding-Up, Voluntary Winding-Up, Winding-Up under Supervision, Arrangements and Compromises, with a Chapter on Debentures, and copious Notes, and an Appendix of Acts and Rules. Seventh Edition. By Feancis Beaufoet Palmee, assisted by Feank Evans, Esqrs., Barristers- at-Law. Royal 8vo. [Nearly ready.) “ Palmer’s ‘ Company Precedents ’ is the book 'par excellence for practitioners. It is needless to recommend Mr. Palmer’s book to the profession, for it is already known and appreciated. We advise those who have any doubts to con- sult it, and they will be in agreement with ms,."— Law Journal, March 7, 1896. “ Simply invaluable, not only to company lawyers, but to everybody con- nected with companies.” — Financial News. WRECK INQUIRIES. — Murton’s Law and Practice relating to Formal Investigations in the United Kingdom, British Posses- sions and before Naval Courts into Shipping Casualties and the Incompetency and Misconduct of Ships’ Cfficers. With an Introduction. By Waltee Mueton, Solicitor to the Board of Trade. Demy 8vo. 1884. U. 4^. WRCNGS. — Addison, Ball, Pollock, Shearwood. — Vide “Torts.” STEVENS AND SONS, Ld., 119 & 120, CHANCERY LANE, LONDON. NEW WORKS AND NEW EDITIONS PREFAEim FOR PUBLICATION. Browne and Powles' Law and Practice in Divorce and Matri- monial Causes. — Sixth Edition. By L. D. Powles, Esq,, Bar- rister-at Law. {Nearly ready.) Campbell’s Ruling Cases. — Arranged, Annotated and Edited by Bobeet Campbell, Esq., Barrister-at-Law ; with American Notes by Irving Browne, Esq. Vol. XI. : Estoppel to Execution. {Nearly ready.) Vol. XII. : Executor to Indemnity, {In the press.) To be completed in about 25 Volumes. Prospectus on application. Chitty’s Forms of Practical Proceedings in the Queen’s Bench Division. Thirteenth Edition. By T, W. Chitty and Herbert Chitty, Esqrs., Barristers -at -Law. {In preparation.) Greenwood’s Manual of the Practice of Conveyancing. — Ninth Edition. By Harry Greenwood, LL.D., Esq., Barrister-at-Law. {Nearly ready.) Lowndes’ Practical Treatise on the Law of Marine Insurance. — Third Edition, By Walter Lowndes, Esq. {In preparation^ Macdonell’s Law of Master and Servant. — Second Ed. By John Mac- DONELL, LL.D., Esq., a Master of the Supreme Court. {In preparation.) Marsden’s Treatise on the Law of Collisions at Sea.— Fourth Edition. By Beginald G. Marsden, Esq., Barrister-at-Law. {In the press.) Mews’ Complete Common Law and Equity Digest of all the Reported Decisions in the English Courts from 1756 to the Date of Publication. — Consolidating Eisher’s Common Law Digest and Chitty’s Eodity Index. By John Mews, Esq., Barrister-at-Law, Editor of “The Law Journal Beports,” assisted by other members of the Bar. {In preparation.) Odgers’ Principles of Pleading, Practice, and Procedure in Civil Actions in the High Court of Justice. — Third Edition. By W. Blake Odgers, Esq., Q.C., LL.D. {In the press.) Palmer’s Company Precedents. — Part II. Winding Up Forms and Practice. Seventh Edition. By Francis B. Palmer and Frank Evans, Esqrs., Barristers-at-Law. {Nearly ready.) Pollock’s Law of Torts: a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Fifth Edition. By Sir Frederick Pollock, Bart., Barrister-at-Law. {In the Press.) Robbins’ Treatise on the Law of Mortgage. — By L. G. Gordon Bobbins, Esq., Barrister-at-Law. (Founded on Coote’s “Law of Mortgage.”) {In the press.) Rogers’ Law and Practice of Elections. — Vol. I. Begistration, including the Practice in Begistration Appeals ; Parliamentary, Municipal, and Local Government ; with Appendices of Statutes, Orders in Council, and Forms. Sixteenth Edition. By Maurice Powell, Esq., Barrister-at-Law. {In the press.) Roscoe’s Admiralty Practice. — Third Edition. By E. S. Boscoe, Assistant Begistrar, Admiralty Court, and T. Lambert Mears, Esqrs., Barrister-at-Law. {In preparation.) Smith’s Manual of Common Law. — For Practitioners and Students. Comprising the Fundamental Principles, mth useful Practical Buies and Decisions. By Josiah W. Smith, B.C.L., Q.C. Eleventh Edition. By C. Spurring, Esq., Barrister-at-Law. {In preparation.) STEVENS AND SONS, Ld., 119 & 120, CHANCERY LANE, LONDON.