a condition that the patentee should bring no action for infringements prior to the disclaimer. But I have allowed a disclaimer even without advertisements when the disclaimer has been of mere formal matter.] At all events, the prosecutor ought to pay the costs subsequent to the disclaimer, for it is like proceeding in an action after the amount sought to be recovered has been paid into Court; 2 Chitty's Archbold, 1187. The Petitioner is entitled not only to the costs of the action, but to his "damages and expenses" according to the terms of the bond. Mr. Glasse, contrà, did not contest the liability to pay the costs subsequent to the disclaimer. The MASTER of the ROLLS. I My opinion is, that the Defendant in the scire facias is entitled to receive some costs of this litigation. think that after the action had been brought the patentee must have felt, that he could not maintain his patent as it then was, and I do not doubt that the object and effect of the disclaimer was to assist him in his defence in the action of scire facias. I do not remember the particulars of the disclaimer; and there is no evidence to shew what it was; but if there were any such evidence, I think that it would not affect the view which I take of this case. The power to disclaim given by Lord Brougham's Act is very valuable and of great importance to patentees, but it is a power, which, if indiscriminately exercised, would work considerable injustice to the public. In many cases a person may make an invention, some part of which may be comprised in another patent, which he may be advised is wholly invalid, and 1851. The QUEEN บ. MILL. 1851. The QUEEN V. MILL. yet by the effect of a subsequent disclaimer, it may become perfectly good, and a liability created which did not previously exist. It is very desirable to afford protection to patentees in consequence of the difficulties arising from the nature of the subject, and the state of the law; it is proper that they should be allowed to correct errors in their patents by removing from the specification parts which are not material or substantial, or which they have since discovered not to be new inventions; but this power ought to be exercised with great care and discretion. I think that a patentee who disclaims must take the consequence of having it assumed, in the absence of evidence, that the patent was invalid previous to the disclaimer; and I must treat it so in this case. But I think that after the disclaimer, the prosecutor was bound to know that the patent was good, and ought then to have discontinued the action. From that period he ought, therefore, to pay the costs in the action. As to any special costs, I do not think I ought to make any order, unless something very special had occurred. In all cases some inconvenience must have been sustained. I think the words used in the bond intended to refer to some special inconvenience or damage independent on the result of the action. By consent I will order the taxation; otherwise I can make no other order than to give leave to bring an action on the bond to recover the subsequent costs. 1851. WILSON v. EDEN. of Sir THIS case, relating to the leasehold property Mr. Elmsley, for the Plaintiff, having conceded that the case was not so clear, as to lead him to expect that this Court would now decide it, without having the opinion of another Court of law, was stopped by the Court from entering into the merits of the case. Mr. Walpole, Mr. Malins, and Mr. Dumergue, for Sir William Eden, pressed for a decision in accordance with the certificate of the Court of Exchequer. They observed upon the inconvenience and expense of sending the same case repeatedly for the opinion of the different Courts of law, and stated, that Lord Cranworth and Sir George Turner had lately expressed their determination to decide such questions themselves in the first instance, unless the points involved were so doubtful as to render it necessary to have the assistance of a Court of law. Mr. July 22. Except in cases of diffi culty, this Court will itself deter mine questions of con struction in the first instance, with out seeking the assistance of courts of law. (a) 11 Beavan, 237. 1851. WILSON v. EDEN. Mr. Roupell, Mr. Teed, Mr. Lloyd, Mr. R. Palmer, Mr. Faber, Mr. Dickinson, and Mr. Goldsmid for other parties. The MASTER of the ROLLS. In this case Lord Langdale has expressed an opinion one way, and the Court of Exchequer another. Now, if the case were brought before me unprejudiced by any decision, and I thought the case clear either way, I should feel bound to act on my own opinion; but when I find there is a reasonable question, with two contradictory decisions of high authority, I certainly should not decide it myself without having the assistance of another Court of law. I think it proper to take this opportunity of saying, that I concur in what Lord Cranworth and Sir George Turner have done with respect to sending cases on questions of construction for the decision of Courts of law; and that in all such cases as may come before me, I shall think it my duty, so far as I possibly can, to decide them myself, without the assistance of a Court of law, particularly where the parties press me to do so; and whenever I do so decide, I shall not afterwards offer the party against whom I decide a case for the opinion of a Court of law. It must therefore be understood, that in such cases, the decision, so far as I am concerned, will be final. It being frankly admitted, that this case is not free from doubt, and there being contradictory decisions on the point, it must be sent for the opinion of the Court of Queen's Bench. 1851. DAVENPORT v. STAFFORD. July 2, 3, 4. THE FRISBY v. STAFFORD. CHARLESWORTH v. MANNERS HE testator Edward Manners, by his will, gave all the residue of his goods and chattels, &c. &c. stock in any of the public companies or funds, and all his shares in the Erewash and Melton Mowbray canals, and all other his personal estate unto Ann Stafford for life, and after her death he gave the same to his ten children, and he appointed Ann Stafford his sole executrix. The testator died in 1810, and his will was proved by Ann Stafford. At his death, he possessed, amongst other things, a sum of 60,000l. Bank four per cents., seven shares in the Erewash canal, and ten shares in the Melton Mowbray canal. In 1815, the original suit of Frisby v. Stafford was filed by one of the children against Ann Stafford and terest. An execu trix and tenant for life unnecessarily and improperly sold out a sum of stock; a com mon decree others for an account was made against her representatives. Held, that her estate was liable to replace the stock and dividends, and that relief might be had on further directions, though the particular matter was not charged by the bill. Executors were ordered to sell canal shares before the 14th of July 1833. They did not sell them until 1836, and a great loss occurred. Held, that they were personally liable for the loss. |