also constructed with iron frames, of various constructions, covered by external iron plating.

In answer to a question put by the learned Judge to one of the plaintiffs' witnesses (Mr. Scott Russell)"How is the absence of the iron plating, which you say is a material part of the strength of an iron ship, compensated for in J. Jordan's ship?" the witness answered, that in Jordan's invention so much of the iron plating as is most useful in an iron ship to give it strength was retained, in order to give that strength to this combination; and that, on the contrary, the parts of the iron that were left out were those that kept out the water, but did not strengthen the ship.

The infringement of the patent by the defendant was proved.

At the close of the plaintiffs' case, the defendant's counsel submitted that the plaintiffs ought to be nonsuited, upon the ground (inter alia) that the first claim in the specification was too wide in its terms, being a claim for a combination of any iron frame of a ship with any external wooden planking; and that upon the plaintiffs' own evidence, and particularly from the above answer of Mr. Scott Russell, it appeared that the only novelty in their claim was the substitution of external wooden planking for external iron plating as applied to a wooden frame; that since external wooden planking, as applied to a wooden frame, was an old contrivance, this claim was bad, within the principle of Harwood v. the Great Northern Railway Company (1); that each of the claims must be taken separately, and must stand or fall by itself; and that the objection to the first claim applied to all the other claims, except the sixth, to which, for the purposes of that trial, the defendant's counsel offered no objection.

The learned Judge directed that the case should go on, reserving leave to the defendant's counsel to raise his objections.

The defendant's counsel then called several scientific witnesses and practical shipbuilders to contradict the plaintiffs' case as to the novelty of J. Jordan's invention, and drew attention to several previous patents of Dickinson, Ditchburn and others, which, it was alleged, had anticipated J. Jordan's invention. The defendant did not dispute

that he had infringed the first claim, if that were construed to mean the combination of any iron frame with any wooden planking; but did not admit that he had infringed the sixth claim.

The learned Judge directed the jury that there was no question for them as to the infringement of the patent by the defendant, which was admitted. In answer to questions put by the learned Judge the jury found that at the time of the plaintiffs' patent a complete, rigid, independent frame of iron covered with wood planking was new. That an iron frame with timber keel, or timber stem, or timber stern-post, was also new. That iron plates for butt-joints when applied to the planking of ships, and applied for the purpose of adding strength to the plank and making it a water-tight joint, were also new. The learned Judge thereupon directed a verdict for the plaintiffs, giving leave to the defendant to move on the grounds hereafter set out in the rule, the Court to be at liberty to draw inferences of fact consistent with the finding of the jury.

Bovill accordingly obtained, on the 15th of January, 1866, a rule nisi calling on the plaintiffs to shew cause why the verdict should not be set aside and a verdict entered for the defendant, pursuant to leave reserved, on the grounds, first, that the alleged inventions in the first, second, third, fourth, fifth and ninth claims of the specification respectively, or some of them, are not subject-matters for a patent: secondly, that they were not new; thirdly, that the specification was insufficient; that it claimed more than it ought to have done; was too wide in its terms; did not sufficiently describe the invention, and did not distinguish what was new from what was old: or why a new trial should not be had, on the grounds, first, that the verdict was against the weight of evidence; secondly, that the Judge misdirected the jury in a certain particular, which (from the view taken by the Court) it is immaterial to state here; or why this Court should not dispose of the questions on the evidence.

Grove, Aston and Ledgard, for the plaintiffs, shewed cause.-There is no question about infringement, and the main questions arise upon the objection to the first

claim in the specification, and they are whether the invention claimed is a new one, and next whether it is properly described. The invention substantially consists of an iron skeleton of a ship coated with a wooden skin, by means of which the ship can afterwards be sheathed with copper, which in the case of an iron ship cannot be done except there be wood between the copper and the iron. Iron ships, combined with wood, had been previously made, but before the plaintiffs' patent there had not been an iron skeleton of a vessel complete in itself before the wood was used like those made under the plaintiffs' patent, where the whole wood-work might be burnt without affecting the framework. It is objected that the claim is too large, so that it would comprehend any iron frame for a ship. It is submitted that the whole specification must be read together, and that it manifestly appears from it when so read that the patentee claims only a complete iron frame of a definite plan of construction to which a wooden covering may be attached; and this is explained by the sixth claim, which is for the construction of such an iron frame as mentioned in the first claim. The patentee distinctly says, I make no claim for any of the parts separately, but only when in combination to carry out my said invention. Thomas v. Foxwell (3) is not in point. The whole, no doubt, depends on the meaning of the term "iron frame"; if that means 66 any iron ship," of course the claim would be bad; but it is submitted that that is not the fair construction to be put on the term in this specification. The case of Harwood v. the Great Northern Railway Company (1) does not apply, as the gist of the judgment of the House of Lords in that case was, that the invention had been used before, and was, therefore, not new; but the finding of the jury in the present case is an answer as to there being here any want of novelty. It is said that the application of iron and wood as claimed in this invention, being the application of well-known materials in a manner also known before, cannot be the subject of a patent, but the combination and result pro

(3) 6 Jurist, N.S. 271.

(4) 4 Man. & G. 580; s. c. 12 Law J. Rep. (N.S.) C.P. 81.

NEW SERIES, 35.-C.P.

duced by the plaintiffs' patent are both new, and sufficient therefore to be the subject of a patent-Crane v. Price (4). Until used it could not have been known whether by reason of the expansion and contraction of iron by heat and cold the wooden planking to a complete iron framework of a vessel would not have burst.

We

Bovill (with him Webster and Macnamara), for the defendant, in support of the rule. Our objections to the patent are that some of the claims in the specification are not new, are not the subject-matter of a patent, claim more than they ought to have done, are too wide in their terms, do not sufficiently describe the invention, and do not distinguish what is new from what is old. Our objections for the purpose of this argument are only to the first, second, third, fourth, fifth, and ninth claims. We do not dispute that if the patent is good in every respect, the first claim is so wide that what the defendant did was an infringement of it. But the first claim, we say, is clearly bad, as being too wide, and not new. do not admit that the defendant had infringed anything except the first claim. Each claim in the specification must be taken separately; and, adopting this construction, the first claim is so wide as to include every iron frame (of any construction) which is covered with external timber planking (of any construction). The undisputed evidence shewed that, long before the date of this patent, wooden frames were covered with wooden planking, and iron frames with iron plating. Our evidence at the trial shewed that the covering of an iron frame with external timber planking was published in the year 1841, in Ditchburn's patent, and on this point the verdict should be set aside as being against evidence. But apart from that, and assuming, for the sake of argument, that Jordan was the first to cover an iron frame with external timber planking, still this is not the subject-matter of a patent, because it is only the application of old contrivances. to an analogous object. It appeared from the plaintiffs' own evidence that Jordan's alleged invention consisted in nothing more than in taking the ordinary iron frame of a ship covered with external iron plating, and taking away of that external plating so much as served only to keep out the water

2 N

and not to strengthen the frame, and substituting for it wooden planking. This case therefore falls precisely within the rule laid down by the House of Lords in Harwood v. the Great Northern Railway Company (1). It was there held, that a certain contrivance of fish-joints having been used for bridges and other purposes, a patent for applying the same contrivance to a new purpose, the ends of rails used on railways, could not be upheld. So here, external wooden planking was long before this patent applied to wooden frames, and the only novelty (if any) was in applying it to iron frames.

[BYLES, J.-Is there not this distinction between this case and Harwood v. the Great Northern Railway Company (1), that here the patent is for the application of an analogous contrivance to the same purpose, while in Harwood's the patent was for the application of the same contrivance to an analogous purpose?]

The two cases are identical in principle. The present case also falls within the rule of Horton v. Mabon (5), Ormson v. Clark (6) and The Patent Bottle Envelope Company v. Seymer (7).

Bovill was then stopped by ERLE, C.J., who said that if the Court required to hear any further argument, they would inform him.

external covering of timber planking for the sides, bilges, and bottoms.

The only other claim necessary to be mentioned is the sixth, which is for the construction of iron frames adapted to an external covering of timber for the sides, bilges, and bottoms, as described.

The validity of the sixth claim, which is for a complete and strong iron frame of a definite construction, was not disputed at the bar, so far as the present action is concerned.

It was contended by the counsel for the defendant that the expression "iron frame" in the first claim, was not confined to an iron frame such as that specified in the sixth claim, but comprehended whatever might, according to the ordinary use of language, be called "" an iron frame for a ship. And, on a careful consideration of the specification, we are of that opinion. The counsel for the plaintiffs laid much stress on the rigidity and strength of the model produced at the trial, and made in conformity with the sixth claim. Those qualities would be very material if we were considering the merits of the sixth claim itself; but we find nothing in the specification requiring any definite degree of rigidity or strength or any peculiarity of construction in the frame mentioned in the first claim.

The first claim therefore is, according to our construction, a claim for planking with timber any iron frame of a ship.

Questions of this nature must, of course, depend very much on the extent to which scientific and practical knowledge of the subject had been carried at the date of the patent.

The evidence (from which, by the arrangement made at the trial, we are at liberty to draw inferences consistent with the findings of the jury) shewed (what indeed is common knowledge) the extensive use of iron as a material in shipbuilding, and, amongst other things, that composite ships, partly of iron and partly of wood, had frequently been constructed; that frames partly of iron and partly of wood had been coated with iron, and that the iron coating of iron vessels had been placed upon iron frames of more or less strength and completeness.

Then arises the main question in the cause. Iron and wood being both of

them materials long used for the construction of the frame and coating of vessels, can the application of wooden planking to the iron frame of a vessel (without any peculiarity in the nature of that planking) be the subject of a patent? We think it cannot. It is not only the substitution of one well-known and analogous material for another, that is, wood for iron, to effect the same purpose on an iron vessel, but it is the application of the same old invention, namely, planking with timber which was formerly done on a wooden frame to an analogous purpose, or rather the same purpose, on an iron frame. In this view of the case the recent decision of the Exchequer Chamber and of the House of Lords, in Harwood v. the Great Northern

Railway Company (1), appears to us to be in point, and decisive for the defendant. There grooved iron fish-plates having been before used for fastening the scarf-joints of timbers, a patent was taken out for their application to fastening the butt-joints of iron rails, and it was held that the patent was bad, because it claimed the application of an old contrivance to an analogous purpose.

The result is, that the verdict must be entered for the defendant on all the issues involving this question.

Rule absolute accordingly.

Attornies-Wilson, Bristows & Carpmael, for plaintiffs; Loftus, Vizard & Co., Tinley & Adamsons, for defendant.

The declaration alleged that the plaintiff was possessed of certain land, which received lateral support from certain adjoining land; that the defendants dug in the said adjoining land a certain well near the said land of the plaintiff, and thereby and for want of keeping the sides of the said well shored up, or otherwise preventing the consequences thereinafter mentioned, wrongfully deprived the said land of the plaintiff of its said support, whereby it sunk, and certain walls, &c. thereon sunk, and the plaintiff received certain specified damage.

The defendants pleaded not guilty, and not possessed.

At the trial, it appeared that the defendants had dug the well as in the declaration alleged, and afterwards filled it up; that

the soil was friable and sunk in the centre of the filled-up well about nine inches, and that a wall of the plaintiff fell, whereby he received damage to the amount of about 157. For the plaintiff, it was contended that the plaintiff's land would have sunk even if the wall had not been there, and so he was entitled to 157., and that at all events he was entitled to nominal damages, as some portion of his land under any circumstances must have subsided.

The learned Judge directed the jury that, unless they thought (excluding the wall from their attention) appreciable damage had been caused by the well, their verdict should be for the defendants; but that if they thought there was appreciable damage, then for the plaintiff. The jury found that there had been no appreciable damage to the land, and the learned Judge directed a verdict to be entered for the defendants, with leave to the plaintiff to move to set it aside and enter a verdict for himself for such sum below 15l. as the Court should direct, on the ground that the facts proved at the trial entitled the plaintiff to a verdict without proof of pecuniary damage.

A rule nisi having been obtained pursuant to such leave,