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1851. with regard to improvements claimed, and their appli
cation. THE ELECTRIC TeleGRAPH The second objection was not less extensive than the COMPANY
first, and would allow the full use of all the patentees' BRETT.
improvements, supposing them to be used only in such an apparatus as the defendant used. That objection was, in substance, that the plaintiffs' patent was for a system of giving signals by means of several wires and converging needles pointing to letters; whereas, the defendant had used one wire, and had made signals by counting the deflections of a needle or needles, which was found by the jury to be a different system from that of the plaintiffs.
This objection appears to us to be founded on a wrong construction of the specification, which, we think, shews the patent not to be for a system of giving signals, but for certain distinct and specified improvements comprehending those now in question,--the system being described only for the purpose of explaining the improvements claimed.
Another objection, somewhat connected with that last mentioned, was urged for the defendants,—that the breaches in the declaration, being, that the defendants had used and counterfeited the invention of the patentees, was not supported by evidence of the use or counterfeiting of part only. But, on looking at the specification, which explains what the invention is, it appears to consist of nine specified improvements: and the declaration, in speaking of the said invention, is to be considered as if it charged the using, &c., of the said nine improvements, and is sufficiently proved, by shewing that one of them has been used.
It appears to us, therefore, that none of the objections which apply to both grounds on which the plaintiffs claim the verdict "in respect of vertical needles, and
of duplicates at intermediate stations,” ought to pre- 1851. vail.
The ELECTRIC With respect to the objection before adverted to, as to TELEGRAPH
COMPANY the claim to the verdict regarding vertical needles,-on considering the finding of the jury with regard to the
BRETT. defendants' instrument, in conjunction with the claim in the specification, antè, p. 865, and taking, as we are bound to do on the present inquiry, the finding of the jury to be correct, it may be doubtful whether the plaintiffs can claim the verdict on this ground. But, it appears to us that the use of duplicate apparatus at intermediate stations,—which the jury have found to be a new invention, and which was undoubtedly used by the defendant, -entitles the plaintiff to retain his verdict.
There was, indeed, an objection particularly applying to this part of the case, which it is proper to mention : it was insisted that the giving of duplicate signals at intermediate stations, was not the proper subject of a patent; being an idea, or principle, only, and not a new manufacture. But we think that the patentees, not only communicated the idea or principle that duplicate signals might be given, but shewed how it might be done, i.e. by duplicate apparatus at each station; and that this is a fit subject of a patent. It was, indeed, contended that it was obvious and self-evident that a circuit having a distinct coil, could have intermediate ones also, which would operate in the same manner. But it appears to us, that, though it might be probable, à priori, that such would be the case, it was matter of experiment that it could practically be done; and that the invention of the patentees, though simple, was one for which a patent might be granted.
If, as was mentioned on the argument, the defendants have intermediate stations to send, as well as to receive, communications, it is a very important improvement, for which the inventors may probably be entitled to a patent,
though they may not be entitled to use it, unless by the The ELECTRIC licence of the patentees of the less perfect invention, on TELEGRAPH which their own is grounded. COMPANY
For these reasons, we think that the rule must be BRETT. discharged.
for a sugges;
CROSSE v. SEAMAN. May 2. It is no ground DEBT, for work and labour and materials, money tion under the
paid, and money due upon an account stated, the London small sum sought to be recovered being 261. 5s. 6d. debts act, 10 & 11 Vict. c.
The defendant pleaded,—first, never indebted, -se. that the debt condly, except as to 71. 15s., payment,-thirdly, as to has been that sum, a tender before action brought. reduced below
The plaintiff took the 71. 15s. out of court, and, at the
trial before Maule, J., at the first sitting in London in court under a plea of tender. the present term, obtained a verdict for 181. 6s. 5d,
201. by a pay
Brewer, upon an affidavit containing all the necessary allegations, now moved for a rule to shew cause why a suggestion should not be entered, to deprive the plaintiff of costs, under the London small debts act, 10 & 11 Vict. c. lxxi. s. 113., relying upon Turner v. Berry (a), where the debt had been reduced by payment before action brought. (Cresswell, J. Could the plaintiff have sued for the 261. 5s. 6d. in the county-court?] No. [Cresswell, J. Was he entitled to have 261. 58. 6d. at the time of action brought ?) Yes; but he was not entitled to bring an action for that sum. This is dif
(a) 1 L. M. & P. 744.
ferent from the case of payment of money into court, where the defendant would have to pay the costs up to the time of payment; whereas, tender is an absolute bar. [Williams, J. A tender is no bar to the action, in debt or assumpsit.] Suppose the whole sum due had been tendered, the plaintiff must have failed in the action. The action, therefore, was not well brought as to the 71. 15s.
Jervis, C. J. I think there ought to be no rule. Tender and set-off are not like payment. The plaintiff cannot know that the defendant will set up his tender or his set-off.
The rest of the court concurring,
Rule refused. (a)
(a) See Heaward v. Hopkins, 2 Dougl. 448.; Waistell v. Atkinson, 3 Bing. 289., 11 J. B. Moore, 14.; Downes v. Ray,
1 Har. & W. 649. But See Jordan v. Strong, 5 M. & Selw. 196.
BODEN v. FRENCH.
The declara- THIS
was an action of assumpsit. The declaration tion stated, that, in consistated, that, in consideration that the plaintiff
, at deration that
the request of the defendant, would retain and employ the plaintiff would employ the defendant as a coal-factor, to sell certain coals on the defendant account of the plaintiff, for reasonable reward, the deas a coal-factor to sell certain fendant promised the plaintiff that he would not sell and coals on account of the
dispose of the said goods and chattels otherwise than plaintiff, the for ready money, and that he would render to the plaindefendant
tiff a true account of the sale thereof within a reasonable plaintiff that he time; that the plaintiff, confiding in the said promise, would not sell the said coals did employ the defendant as such factor to sell the said otherwise than
goods, upon the terms aforesaid ; and that the defendant for ready money,
and accepted such employment; and alleged for breach, alleged for breach, that
that the defendant sold the said coals otherwise than for the defendant ready money, to wit, at two months' credit, &c. sold the coals otherwise than Plea, amongst others, non assumpsit. for ready
At the trial, before Jervis, C. J., at the sittings in money, to wit, at two months' London after the last Hilary term, the plaintiff put in credit:
the following letter, in order to shew the terms upon Held, that the action was which the defendant was authorised to sell the coals in not sustained by the produc- question :tion of the following letter
“ London, September 26, 1850. of instructions
“ Mr. French. given by the plaintiff to the “Sir,- Please sell for me two hundred tons of andefendant, and by proof of a
thracite coal, now lying at Neale's Wharf, Blackfriars, sale of the coals and belonging to me, at such a price as will realise me at 15s. 6d. per ton, at a credit of two months :-"Please sell for me 250 tons of anthracite coal, at such price as will realise me not less than 15s. per ton, net cash, less your commision for such sale."