1838. FISHER v. DEWICK. the manufacture of bobbin-net lace; whereas the said specification did not shew any improvement in such machinery for the making bobbin-net lace. 10. That the machinery for making bobbin-net lace was complete in itself, and not improved by any part of the inventions for which the said letters patent were granted. 11. That such of the machinery as was set out in the said specification as applicable to the manufacture of bobbin-net lace, was not new, but was in general use before the date of the letters patent. 12. That the invention for which the said letters patent were granted was more extensive than that shewn in the specification. 13. That the invention described in the said letters patent did not correspond with the invention described in the said specification. 14. That the said William Sneath claimed as his invention those parts only of the machine which were described in the said specification by numeral figures; whereas many of the parts which were noted by letters in the said specification must form part of his alleged invention, or the same would be incomplete. 15. That many directions were inserted in such specification which were altogether useless, and only tended to mislead. 16. That the alleged invention was not an improvement, and ought not to be the subject of a patent. 17. That, should the said alleged invention, or any part thereof, be an improvement, the same was not of sufficient consequence to be the subject of a patent. 18. That a certain part or parts of the said alleged invention had been, before the date of the said letters patent, combined, and in common use, both severally and together. 19. That the description of certain parts of the said alleged improvement, as set forth in the said specification, and the description thereof as set forth in the plans thereto annexed, were at variance with each other, and did not correspond. 20. The defendants will further shew all such objections to the said patent, and the specification mentioned in the declaration, as shall be considered by the court to be admissible under their several pleas, and whereof the pleas themselves are sufficient notice. 1838. FISHER v. DEWICK. The plaintiff deeming the above notice not to be a suf- Summons. ficient compliance with the statute, took out a summons calling upon the defendants to shew cause before a judge at chambers why they should not within a limited time furnish" an intelligible and true statement of the objections they meant to rely on at the trial." Vaughan, J., Order of before whom the summons was heard, made an order requiring the defendants to deliver more specific objections within two days. Wightman, on a former day in this term, obtained a rule nisi to rescind this order. He conceded that it was too late, after the decision of this court in Bulnois v. M'Kenzie, 5 Scott, 419, 4 New Cases, 127, 6 Dowl. 215, to contend that a judge at chambers had not power to make orders of this description: but he submitted that the object of the statute was not to tie the defendant to any very strict precision in the statement of his objections; and that the effect and validity of them was more properly a question for the judge at Nisi Prius. Wilde, Serjeant, and Hoggins, shewed cause.-The question as to the jurisdiction of the court or a judge was fully discussed and set at rest by the case of Bulnois v. M'Kenzie. The only matter for discussion, therefore, is, whether the particulars that have been delivered in this case are or are not a compliance with the statute. Particulars have been required to be given even in criminal Vaughan, J. 1838. FISHER ". DEWICK. cases (42). What is the construction the courts of law put upon general words of similar import in statutory provisions for the protection of magistrates, commissioners, canal and dock companies, and the like? A notice complying with the mere words of the act, and evading its obvious intention, clearly will not do. The intention of this act was, that the plaintiff should be apprised of the real nature of the scrutiny to which his patent was to be subjected; not that the proceedings should be incumbered with a mere formal notice, the only effect of which would be to perplex and mislead the plaintiff and create useless expense. To hold particulars framed like these to be a compliance with the statute, would be a practical repeal of a very wholesome provision. The statute could not enter into a detail of what the notice should contain: the circumstances of each case are so infinitely various. [Tindal, C. J.-These particulars certainly convey no real information. Some of them are altogether unintelligible; others are as wide as the general issue.] The fourth objection is, that, if any part of the invention were new, the same is useless or unnecessary, and not the ground of a patent. Surely it is not unreasonable to call upon the defendants to give some indication of the parts that are supposed to be useless or unnecessary. The sixth is, that the said improvements, or some of them, have been publicly and generally used long before the granting of the letters patent: not shewing what parts have been in public use, or where; and it is notorious that a pretended user is one of the most difficult parts of the inquiry in cases of this sort. The same want of particularity pervades the whole of the objections: they are drawn with such ingenious obscurity as to be more perplexing than an entire absence of particulars. (42) See Johnson v. Birley, 5 B. & A. 540, 1 D. & R. 174; Rex v. 1 Chit. 698; Anon. 1 Chit. 699. Wightman, in support of his rule.-Before the passing of this act and the making of the new rules of pleading, a patentee laboured under very considerable difficulty in the maintenance of his patent right: it seemed to have been the policy of the law to discourage monopolies. Under a plea of the general issue, the plaintiff was always uncertain whether the defendant meant to deny the fact of the infringement, or to rely on the insufficiency of the patent; and, in the latter case, he had no means of knowing what were the particular objections intended to be urged against the patent. The statute was passed with a view to relieve the patentee from this dilemma-to give him notice whether any and what objections to his patent existed (43). It never could have been the intention of the legislature to impose upon the defendant the difficulty and the injustice this order would impose upon him-ripping up and exposing his whole line of defence. The defendant has an undoubted right to make as many objections as he pleases: the statute does not restrict him; to what extent, then, will the court do so? Reference has been made to the case of notices of action to justices and others. Who ever heard of an application to the court or a judge for a more specific notice of action? or of any objection to the sufficiency of the notice, except as a ground of nonsuit at Nisi Prius. [Tindal, C. J.-The object of the notice of action is, to give the defendant an opportunity of tendering amends. Here, the object is, to give the plaintiff better information as to the objections he will be called upon to meet, than the pleas furnish.] The defendant is asked to point out what particular parts of the machine are useless. (43) It was stated in the course of the argument that when this act was first introduced into Parliament, the new rules of pleading were not in operation. The Bill was brought into the House of Commons by Mr. God son early in the session of 1833. 1838. FISHER บ. DEWICK. 1838. FISHER v. DEWICK. The alleged improvements consist of ninety-four parts. Suppose they are all useless, and that the best machines now existing have none of these parts, and yet make better lace of the description in question than the plaintiff's machine? [Tindal, C. J.-Then the particulars are untrue: they only allege that certain parts of the invention are useless or unnecessary.] It is difficult to perceive how there could be a mere bona fide compliance with the statute. TINDAL, C. J.—I think this rule must be discharged. The question is whether the matters alleged in this notice are so indefinite and uncertain as to be calculated rather to mislead than to assist the plaintiff in shaping his course at the trial. The object of this statute certainly was not to deprive the defendant of any ground of defence; but one object at least was to lessen the expense of the trial, and to prevent the plaintiff from being surprised by objections to his patent of which he had no previous intimation or knowledge. When the statute requires a notice of objections to be given, it must mean such a notice as shall convey to the opposite party real and honest information of the grounds upon which it is sought to avoid the patent. In the present case, some of the objections are certainly much more likely to embarrass than to enlighten the plaintiff: they are evidently framed with that view. For example, the 4th objection states, "that, if any part of the invention were new, the same was useless or unnecessary, and not the ground of any patent at all, and therefore ought not to have been described in the specification as part of the improvements;" the 6th, "that the said improvements, or some of them, had been publicly and generally used long before the granting of the letters patent;" the 18th, "that a certain part or parts of the said alleged invention had been, long before the date of the said letters patent, combined, and in common use, both |