bowl was unequal: in embossing, the roller was *patterned, [*472 and the speed of the roller and bowl was equal. The plaintiff's patent was originally taken out for a combination of the patterned roller with unequal speeds of the roller and the bowl. Having afterwards discovered that one description of roller only would answer, the plaintiff entered a disclaimer, and by his amended specification confined his claim to one kind of substance for the roller, viz. a hard metal, and one kind of pattern for engraving thereon, viz. circular grooves round the roller."

The Court of Common Pleas held that the alleged invention as originally specified was void for want of novelty and utility; and that the amended specification was practically a claim for a new invention, and not a part of any invention comprised in the original specification.

Against this decision the plaintiff appealed. The appeal was heard in the Exchequer Chamber on the 17th of June and the 28th of November, 1861, the judges present on the first occasion being Pollock, C. B., Wightman, J., Crompton, J., Bramwell, B., Blackburn, J., and Wilde, B., and, on the second, Wightman, J., Crompton, J., Channell, B., Blackburn, J., and Wilde, B.

Bovill, Q. C. (with whom was Hindmarch), was heard for the appellant, and Grove Q. C. (with whom were Mellish, Q. C., and Aston), for the respondent. The arguments and authorities cited were substantially those respectively relied on in the Court below.

The points urged on behalf of the plaintiff were as follows:"1. That the invention as originally described in the specification of the plaintiff's patent was a good subject of a patent, and that the patent was not after *disclaimer void for want of novelty or utility in the invention or sufficiency in the specification:

[*473

"2. That the disclaimer and memorandum of alteration filed by the plaintiff did not extend the exclusive right granted by the patent, and were therefore authorized by the 5 & 6 W. 4, c. 83, s. 1, and the other statutes relating to disclaimers, and must, according to the provision of the statute above mentioned, be deemed and taken to be part of the letters patent and specification:

"3. That the specification, as amended by the disclaimer and memorandum of alteration, sufficiently describes and claims a part of the invention originally described in the specification, and that the specification as so amended does not claim anything not previously claimed by the specification:

"4. That there was sufficient evidence of infringement by the defendant, to go to the jury:

"5. That the use of rollers with spiral grooves, as used by the defendant, might be and was a colourable imitation of the plaintiff's invention, and an infringement of the patent; and the defendant's process produced the combined effects of glazing and embossing woven fabrics in one operation by substantially the same means and in substantially the same manner as in finishing cloth by the process claimed by the plaintiff."

The points urged on behalf of the defendant were as follows:-"1. That the invention of the plaintiff below was a mere application

of old processes to analogous purposes, and was not the proper subjectmatter of letters patent:

"2. That the original specification of the plaintiff below did not describe any new invention; and that *the process of manufacture in his specification is useless and impracticable:

*474] "3. That the plaintiff below had not at the date of his first specification invented what he now claims as his invention; and that he described in his specification, as altered by disclaimer, a different invention from that for which the letters patent were granted:

"4. That the disclaimer taken with the original specification does not describe how the alleged invention is to be performed, by stating the materials to be employed for the rollers, and does not state what is the invention claimed:

"5. That the disclaimer and memorandum of alteration extended the exclusive right for which the letters patent of the plaintiff below were granted, and that the said letters patent are therefore void:

"6. That the respondent (the defendant below) has not been guilty of infringement, in that the plaintiff below by his disclaimer and memorandum of alteration limited his claim to rings made round the roller, which the defendant below did not in fact use."

WIGHTMAN, J., now delivered the judgment of the Court:

The invention as described in the original specification consists in the use of rollers having "any design grooved, fluted, engraved, milled, or otherwise indented upon them :" but it appears from the statements in the disclaimer that the effect desired can only be produced by the use of a certain species of roller not particularly described in the specification, namely, a roller having circular grooves, &c., round their surfaces. And all other rollers are expressly disclaimed.

But, if the other rollers disclaimed will not succeed, and the special rollers are alone effectual, then the true invention resides entirely in the process described in the *disclaimer: and the original speci*475] fication does not describe or even suggest the form of roller in which that invention consists. And this is by the disclaimer to extend the right granted by the patent.

The patentee who made and described the invention which is found in the specification, appears not to have conceived the invention mentioned in the disclaimer; for, he had not found out, or, if he had, he did not give to the public the necessary elements of the process which is alone effectual, as in the disclaimer set forth. And we concur in the opinion expressed by the Court of Common Pleas, that "such a disclaimer is in effect an attempt to turn a specification for an imprac ticable generality into a grant for a specific process which is comprised within the generality in one sense, but could not be discovered to be there without going through the same course of experiment which led to the discovery of the specific process in the disclaimer." On this point, therefore, the judgment must be affirmed.

With respect to the entry of the verdict on the plea of not guilty, we are not prepared to concur with the Court of Common Pleas in directing a verdict to be entered for the defendant; and we are disposed to think that it ought to be entered for the plaintiff: but, as our judgment is in favour of the defendant upon the main point, this

is comparatively unimportant; and we are relieved from the necessity of considering whether there should be a venire de novo upon this issue, by the agreement of the defendant's counsel.

Judgment affirmed, except as to the issue upon not guilty, and upon that the verdict to be entered for the plaintiff.

The Right Hon. John Baron Campbell, Lord High Chancellor of England, died suddenly on Sunday, the 23d of June, 1861, at his residence, Stratheden House, Knightsbridge.

Sir Richard Bethell, Knight, Her Majesty's Attorney-General, was thereupon appointed Lord High Chancellor, and was created a peer by the title of Baron Westbury, of Westbury, in the county of Wilts. Sir William Atherton, Her Majesty's Solicitor-General, was promoted to the office of Attorney-General; and Roundell Palmer, Esq., one of Her Majesty's Counsel learned in the Law, was appointed Solicitor-General, and received the honour of Knighthood.

C. B. N. S., VOL. XI.-19

The Judges who usually sat in banco in this term, were

As to Special Cases, Special Verdicts, and Bills of Exceptions.

'IT is ordered, that from and after the first day of Easter Term next, inclusive, every special case, special verdict, and bill of exceptions set down in any of the superior Courts of common law, shall be divided into paragraphs, which, as nearly as may be, shall [each] be confined to a distinct portion of the subject: and every paragraph shall be numbered consecutively:

"And that the masters, on taxation, do not allow the costs of draw*478] ing and copying any special case, special *verdict, or bill of exceptions not in substance in compliance with this rule, without the special order of the Court.

"Jan. 21, 1862."

"A. E. COCKBURN. "W. ERLE.

"FRED. POLLOCK."

JOHN THOMAS COLLIER, Appellant; FREDERICK KING, Respondent. Jan. 15.

The respondent will not be allowed costs on a registration appeal, where the case is a reasonably fit one for argument.

THIS was an appeal against the decision of a revising barrister,

which decision the Court, after time taken to consider, affirmed: vide antè, p. 14.

Coleridge, Q. C., for the respondent, applied for the costs of the appeal. He referred to Passingham, app., Pitty, resp., 17 C. B. 299, 315 (E. C. L. R. vol. 84), and De Boinville, app., Arnold, resp., 1 C. B. N. S. 3, 22 (E. C. L. R. vol. 87); in which latter case Cresswell, J., after consulting the master, said "he understood the practice to be, to allow the respondent his costs of the appeal, when the decision of the revising barrister is affirmed.(a)

ERLE, C. J.-I find, that, in the return made by Tindal, C. J., to the House of Commons upon the subject of these appeals, in 1845, that learned Judge states that the principle upon which the Court had acted with regard to costs was this, viz., "that, where the subjectmatter of the appeal presented a fair and reasonable ground of doubt as to the legal construction of the statute, and the propriety of the determination of the revising barrister, it was not the intention of the legislature that costs should be awarded against the un[*479 successful party." Here, it was as near as possible a case in which the Court was equally divided. In Clark, app., The Overseers of Bury St. Edmunds, resp., 1 C. B. N. S. 23 (E. C. L. R. vol. 87), costs were not given, the case being one of reasonable doubt: but in Hannaford, app., Whiteway, resp., 1 C. B. N. S. 53, the Court not thinking it necessary to hear the respondent in support of his vote, costs were allowed. Again, in Steward, app., Sherlock, resp., 7 C. B. N. S. 21 (E. C. L. R. vol. 97), the case being considered a reasonable one for argument, costs were refused. We cannot, consistently with these decisions, grant costs here. Coleridge took nothing.

(a)" Especially," adds Willes, J., "where, as here, the party's claim to the franchise is established by our decision,"—which was not the case upon this occasion.

The author of a drama called "Gold," which had been printed and represented on the stage, published a novel founded upon it, called "It is never too late to mend," to which novel he transferred some of the scenes from the drama. The defendant caused another drama to be constructed from the novel, which he called 46 Never too late to mend," taking many of the scenes from the novel which had been imported into the novel from the original drama, and produced it at his theatre:

Held, that this was an infringement of the plaintiff's copyright in his drama.

THIS was an action brought to recover damages for an alleged infringement of the plaintiff's alleged sole liberty of representing and causing to be represented at any place or places of dramatic entertainment in Great Britain a duly registered play or dramatic piece or entertainment, intituled "Gold," composed by the plaintiff, and of which he was the duly registered author and proprietor, as alleged by him; and for the alleged infringement of the plaintiff's alleged copyright in a certain duly registered book, being a tale, novel, or story, intituled "It is never too late to mend."

The defendant pleaded not guilty to the whole declaration, and, to the second count, leave and license; and he also demurred to the