darrein continuance, were placed upon the record. [Tindal C. J. If the costs are taxed under the rule, how is payment to be obtained ?] Channell, in support of the rule. The defendant might have pleaded the payment of money into court by way of compensation or amends for part of the cause of action, and might, without being chargeable with any inconsistency, have pleaded other pleas, denying the plaintiff's cause of action, as to the residue. TINDAL C. J. The defendant may either confine his plea of payment to part of the cause of action, or withdraw it altogether. The costs of the motion and of the amendment, to be costs in the cause. Rule absolute, in the form pronounced. (a) (a) And see Corbett v. Swinburne, 8 Ad. & Ell. 673.; 3 N. & P. 551.; Roe v. Cobham, 6 Dowl. P. C. 628. ; post, 279. As to the application of a plea of payment, (the rule being the same whether the payment be before or after action brought), see Mitchell v. Townley, 7 A. & E. 164., 2 N. & P., over-ruling Mee v. Tomlinson, 44.& E.262., 5 N. & M.624.; Jourdain v. Johnson, 2 C. M. &R. 564.; Marshall v. Whiteside, 1 M. & W. 188. See also Taylor v. Willes, Cro. Car.219.; Swinburne v. Ogle, 1 Lutw. 241., second point. A release of the action, given after declaration, pending an imparlance, though it is only in bar of the further maintenance of the action, may be pleaded as an original plea; Price v. Kendrick, Fortesc. 338. At common law the owner of cattle taken damage feasant, might, before impounding, ten der amends; Six Carpenters' 1840. THOMPSON บ. JACKSON. 1840. THOMPSON v. JACKSON. them, the plaintiff shall be enforced to join issue, and if the issues be found for the defendant, or the plaintiff shall be nonsuited, the plaintiff shall be clearly barred from the said action and all other suits concerning the same." This statute did not extend to trespasses by mistake, if the acts were voluntary, Basely v. Clarkson, 3 Lev. 37., or to any trespass for taking goods, Bailee v. Viveash, 1 Stra. 549. In replevin it would not, from the above cases, appear to be necessary to plead that the trespass was involuntary. In Allen v. Bayley, 2 Lutw. 1594., however, the plea in bar to the avowry alleged, that the trespass had been committed involuntariè et contra mentem le distreinee, ib. 1595. Thus stood the law at the time of the passing of 3 & 4 W. 4. c. 42. as to parties generally. But in the case of a justice of the peace, it was provided, by 24 G. 2. c. 44. s.2.," that it shall be lawful for such justice, at any time within one calendar month after notice of action given him, as required by that act, to tender amends to the party complaining, or to his agent or attorney, and in case the same is not accepted, to plead such tender in bar to any action to be brought against him, together with the plea of not guilty, and any other plea, with the leave of the court; and if, upon issue joined thereon, the jury shall find the amends so tendered to have been sufficient, then they shall give a verdict for the defendant; and in such case, or in case the plaintiff shall become nonsuit or shall discontinue his action, or in case judgment shall be given for such defendant upon demurrer, such justice shall be entitled to the like costs as he would have been entitled unto, in case he had pleaded the general issue only; and if upon issue so joined the jury shall find that no amends were tendered, or that the same were not sufficient, and also against the defendant on such other plea or pleas, then they shall give a verdict for the plaintiff, and such damages as they shall think proper, which he shall recover together with his costs of suit." And by the fourth section it is enacted, "that in case such justice shall neglect to tender any amends, or shall have tendered insufficient amends, before the action brought, it shall be lawful for him, by leave of the court where such action shall depend, at any time before issue joined, to pay into court such sum of money as he shall see fit; whereupon such proceedings, orders, and judgments shall be had, made, and given in and by such court, as in other actions where the defendant is allowed to pay money into court." It will be seen therefore, that justices of the peace are authorised by 24 G. 2. c. 44. to plead a tender of amends, with the plea of not guilty and any other plea. It is however observable that this statute does not expressly give any power of signing judgment, such as is contained in R. H. 4 W. 4. reg. 19., 3 N. § M. 7., and in R. T. 1 Vict. reg. 1., 8 A. & E. 278. In an action against two defendants, one may plead in bar of the action generally, the other in bar of its further maintenance. In Ejectione firmæ, Nevil's Case, Dyer, 226 b. 1840. ELIJAH GALLOWAY and THOMAS ROUTLEDGE v. the defendant was described as thesecretary of a public company, and a cause of action against the company was set forth, the court, after verdict for the plaintiff, refused to allow an amenddeclaration by ment in the THE declaration stated, that the plaintiff Galloway Where, in a was the inventor of "certain improvements in pad- declaration dle-wheels for propelling vessels," and that, on the 18th of August, 6 WV. 4., a patent was granted to Galloway to make, use, exercise, and vend (a) the said invention, to wit, within England, Wales, and Berwick-upon-Tweed, for a term of fourteen years, with a proviso that, if Galloway should not particularly describe and ascertain the nature of his invention, and in what manner it was to be performed, by an instrument in writing under his hand and seal, and cause the same to be enrolled in Chancery within six calendar months, then the patent should be void. Averment: that Galloway did, within six calendar months, to wit on, &c., by an instrument insertingin writing, under his hand and seal, describe and ascertain, &c., and cause the same to be enrolled: and that Galloway assigned a moiety of the patent to the plaintiff Routledge. Yet the said company, well knowing the premises (b), but contriving and wrongfully intending to injure the plaintiffs, and to deprive them of the said invention, made divers paddle-wheels for propelling vessels on the said improved plan or principle, and in imitation of the said invention, and sold and vended (a) divers other of the said paddle-wheels, without the leave and against appointed by that the com pany were trading under letters patent jesty, em-, powering of Her Ma them to sue and be sued in the name of one of the two public officers to be them for that purpose, and that the defendant was one of such officers, duly appointed to sue and be sued for and on behalf of the company, and duly registered as such officer, pursuant to 7 W. 4. & 1 Vict. c. 73., except upon the terms of the plaintiff's paying the costs of the motion, and of a motion in arrest of judgment, and of foregoing the costs of the trial. (a) See 5 N. & M. 647. (b) Qu. Whether a scienter necessary. 1840. ย. the will of the plaintiffs, in breach of the letters patent, and against the privilege so granted to Galloway. GALLOWAY Second count, that the company, further contriving and BLEADEN. intending as aforesaid, made paddles in imitation of the invention. Third count, for counterfeiting, imitating, and resembling the invention in part, and making colourable additions to and subtractions from the same, whereby to pretend the said company to be the inventors thereof, and selling and putting into practice paddle-wheels for propelling vessels made to counterfeit, imitate, and resemble, in part, Galloway's invention, with colourable additions and subtractions. Fourth count, for making paddle-wheels for propelling vessels, with other improvements in the construction thereof, which were intended to imitate and resemble, and did imitate and resemble, the improved paddle-wheels so invented by Galloway. Pleas: first, that the Company are not guilty (a); secondly, that Galloway was not the first and true inventor; thirdly, that the nature of the invention (6), and the manner in which it was to be performed (c), were not particularly ascertained or described, according to the true intent and meaning of the said letters patent, in or by the instrument of specification mentioned in the declaration; fourthly, that the supposed invention was not a new invention (d) or manufacture, within this realm, but had been publicly used (e) in England by divers other persons. (g) (a) As to what shall be an (b) Godson, Pat. 2d ed. 108. (d) See Hill v. Thompson, Manton, Davis, Patent Cases, 333. (e) See Wood v. Zimmer, Holt, N.P.C.58.60.; Lewis v. Marling, 10 B. & C. 22., 5 Mann. & R. 66., 4 Carr & P. 52. ; Cornish v. Keene, 3 New Cases, 570., 4 Scott, 337., 2 Hodges, 281.; Russell v. Cowley, 1 Cr. M. & R. 864.; Morgan v. Seaward, 2 M. & W.544., 1 Murph. & H. 57.; Minter v. Mower, With these pleas a notice of objections was delivered, pursuant to 5 & 6 W. 4. c. 83. (a) s. 5., which notice was afterwards amended by striking out some objections and altering others. The replication joined issue upon the first three pleas, and took issue upon the fourth, by asserting that the invention was a new invention or manufacture within this realm, and had not been publicly practised and used by others. Admissions were made in the cause by the defendant's attorney, in the whole of which the company are mentioned as "the defendants." At the trial, at Westminster, before Tindal C. J., which occupied two days, the jury found a verdict for the plaintiffs upon all the issues, with nominal damages. Campbell A. G. applied to the Lord Chief Justice to give a certificate under the third section of 5 & 6 W. 4. c. 83. s. 5. (b), and also to certify for a special jury. The 6 Ad. & Ell. 735., 1 N. & P. 595., 1 Willm. W. & D. 263. ; Kay v. Marshall, 5 New Cases, 492., 1 Mylne & C. 373.; Hare v. Harford, Godson, Pat. 2d ed. 39.; Walker v. Congreve, ib. 56.; Jones v. Pearce, ib. 28. 46. 190. In the last case the defendant obtained a rule nisi for a new trial; but before the rule came on to be argued, the cause was compromised. Ex relatione Watkins and Hooper, attorneys for Pearce. (g) Orders have been obtained in this Court, for the name and addresses of the persons supposed, by the declaration, to have used the invention; Boulnois v. Mackenzie, 4 New Cases, 127., 6 Dowl. P. C. 215. So in the Court of Exchequer, Lord v. Hague, Gods, Pat. 2d ed. 239. (a) By which it is enacted, that in any action for infringing letters patent, the defendant, on pleading thereto, shall give the plaintiff a notice of any objections on which he means to rely at the trial; and no objection shall be allowed to be made by the defendant at the trial, unless he prove the objections stated in such notice. Provided always, that it shall be lawful for any judge at chambers to give leave to offer other objections, on such terms as to the judge shall seem fit. (b) That if any action at law, or suit in equity for an account, be brought in respect of any alleged infringement of letters patent, or any scire facias to repeal letters patent, and if a verdict pass for the patentee or his assigns, or if a final de |