•270 
THE  TROPICAL  AGRICULTURIST. 
[Oct.  i,  i8<>2. 
lid  to  bottom  and  through  which  the  upper  rolling 
surface  passes.  The  specification  alludes  to  the  case 
or  jacket  surrounding  the  upper-rolling  surface.  It 
could  never  have  intended  to  mean  only  one  side  of 
the  box  or  the  top  or  bottom  of  the  box.  Is  there 
anything  in  the  specification  to  restrict  those  words 
to  the  mere  wooden  or  metal  lining  of  the  case  itself  '? 
We  have  no  doubt  upon  this  point ; it  would  be  idle  and 
CONTRARY  TO  COMMON-SENSE 
to  say  that  plaintiff  called  only  one  part  of  his  case  1 
“the  case,”  Decause  that  part  was  made  of  wood;  I 
but  it  is  still  more  repugnant  to  common-sense  to 
urge  that  the  thin  cylinder  of  metal  which  is  in- 
serted as  a lining  to  the  cylinder  of  the  defendant’s 
machine  and  which  confines  the  upper  rolling  sur- 
face and  which  is  movable  at  will,  corresponds  to 
the  “ case  or  jacket”  of  the  plaintiff's  machine.  We 
hold  against  both  these  contentions,  and  we  hold 
that  what  is  called  the  “cylinder"  in  the  defendant's 
machine  is  nothing  more  nor  less  than  the  “case  or 
jacket  " of  the  plaintiff’s  machine,  from  its  top  edge 
to  the  bottom,  both  inside  and  out.  Then,  has  the 
defendant’s  machine  infringed  the  principle  upon 
which  motion  is  transmitted  to  the  upper  rolling 
surface  ? After  much  and  most  anxious  considera- 
tion I have  come  to  the  conclusion  that  it  has, 
and  that  in  this  respect  the  one  machine 
is  the  counterpart  of  the  other.  The  gearing 
is  the  same,  the  cranks  are  the  same,  and  the 
motive  power  thereby  transmitted  operates  with  the 
exception  directly  referred  to,  on  the  upper  rolling 
surface  in  the  same  way.  For  the  defendants  it  I 
was  contended  that  it  did  not  operate  in  their 
machine  through  the  lining  of  the  cylinder 
which  it  was  urged  corresponded  with  the  plain- 
tiff's case  or  jacket.  We  repeat,  the  two  things  are 
manifestly  distinct.  We  say  the  defendants'  cylinder 
is  the  corresponding  part  to  the  plaintiff’s  case  or 
jacket,  and  that  in  both  machines  linear  motion  is 
conveyed  to  the  upper  rolling  surface  by  reason 
of  its  connection  with  the  jacket  in  the  one  case, 
and  with  the  cylinder  in  the  other.  The  square 
sides  of  the  rolling  surface  in  the  plaintiff's  machine 
which  are  acted  on  by  the  jacket  pushing  them 
to  give  it  motion,  correspond  to  the  circular  surface  of 
the  vertical  shaft  in  the  defendants’  machine  which 
starts  out  of  the  upper  rolling  surface  called  the  lid,  and 
is  acted  on  by  the  connecting  bracket  of  the  cyliuder 
pushing  the  shaft  from  side  to  side  or  eccentrically 
to  give  the  lid  or  upper  rolling  surface  its  motion. 
But  if  the  model  machines  before  us  are  to  be  relied  on 
there  is  even  not  that  difference  between  the  two 
machines,  because  the  rolling  surface  of  the  de- 
fendants’ machine  has  as  well  a vertical  eh^ft  at- 
tached to  it  whioh  passes  through  a braoket  and 
embraces  the  jacket  in  the  same  way  as  the  bracket 
embraces  the  cylinder  of  the  defendants’  machine, 
and  by  which  motion  is  conveyed  to  the  upper- 
rolling surfaco  by  the  braoket  in  contaot  with  the 
vertical  shaft.  What  is  the  evidence  of  the  defen- 
dants’ own  speoifioation  on  this  point  ? It  s iys  “ The 
pulley  connected  with  the  ‘lid’  causes  it  to  revolve 
inside  the  hollow  cylinder  while  at  the  same  time 
it  has  the  eooentrio  motion  imparted  to  it  by  the 
hollow  cylinder.”  For  ‘1  lid  ” read  “ upper  rolling 
surface,”  and  for  “cylinder’  read  “ oase  or  jacket,” 
and  you  have  the  defendants’  maobine  described  in 
precisely  the  same  words  as  the  plaintiff  has  speci- 
fied his,  and  so  important  was  this  piece  of  evidence, 
and  suoh  was  its 
ADVERSE  BEARING  UPON  DEFENDANTS1  CONTENTION, 
that  one  of  the  defendants  wished  to  make 
it  appear  that  it  was  a mere  clerical  error 
by  whioh  “,by  ” had  been  written  for  “ of.”  In 
this  respect  therefore  we  hold  that  as  this  particular 
result  was  novel  in  its  application  1 1 the  plaintiff's 
machine  and  was  embraced  and  particularized  in 
the  specification  of  his  invention,  it  was  not 
competent  to  the  defendants  to  appropriate  it  to  any 
machine  of  their  own.  There  is  one  difference  as  we 
have  said  between  the  action  of  the  two  machines, 
and  it  is  this:  that  whereas  the  plaintiff’s  machine  ac- 
complishes but  two  surfaqial  motions  that  of  the  de- 
fendants’ has  three  leading  to  its  appellation  “Triple- 
action roller.”  This  super-added  third  motion  is  doubt- 
less new  to  the  plaintiff’s  machine,  bat  it  cannot  exist 
independently  of  it,  and  cannot  be  regarded  in  any 
other  light  than  as  an  improvement  or  application  to 
the  plaintiff's  machine,  and  in  that  respect  it  might 
be  the  snbjeot  ot  a patent  right,  but  the  defendants 
ooulJnotuse  or  apply  it  without  the  lioense  of  the 
plaintiff.  This  brings  us  to  the  last  issue,  .one  of 
faot,  upon  which  we  are  oalled  to  perform  the  func- 
tions of  a jury.  We  have  already  said  that  if  we  take 
the  learned  District  Judge’s  expresion  of  opinion  upon 
it  as  indicating  how  it  should  be  deoided,  it  mast 
lead  to  a finding  in  favour  of  the  plaintiff.  This  is 
what  the  learned  District  Judge  has  said— we  quote 
from  his  judgment — “ As  the  Excelsior  was  an 
improvement  on  the  ‘Standard,’  60  the  ‘Triple- 
action roller’  is  an  improvement  on  the  ‘ Excelsior,’ 
and  is  decidedly  a far  more  cffioient  and  satis- 
factory maohine.”  This  finding  of  fact  would 
necessarily  lead  to  judgment  against  the  defendants, 
for  while  the  plaintiff  had  a perfect  legal  right  to 
appropriate  to  himself  and  secure  by  patent  all  the 
novel  and  useful  mechanical  contrivances  contained 
in  the  “ Standard  ” which  had  never  been  patented 
here  and  in  which  no  publio  use  had  been  acquired ; 
so  soo  1 as  he  had  done  so,  shut  the  defendants  out 
from  the  appropriation  of  the  same  invention,  and  it 
was  not  possible  for  the  defendants  to  have  patented 
a mere  improvement  on  his  (the  plaintiff’s)  invention, 
independently  of  the  plaintiff.  Looking  at  the  two 
machines  and  working  ihem  side  by  side,  and  bearing 
mind  the  identical  purpose  which  both  are  inteudtd 
to  secure,  I am  unable  to  come  to  any  other  conclusion 
than  that  the  defendants’  machine  is  the  resnit  of  an 
adoption  of  the  meohanioal  principles  and  contrivances 
which  found  practical  adaptation  and  arrangement 
in  the  plaintiff’s  machine  varied  no  more  than  in  un- 
essential form,  but  with  cenain  improvements  made 
by  the  defendants  and  which  are  practically  useful 
only  in  connection  with  it.  The  plaintiff  muat  there- 
fore have  judgment  ani  the  case  must  go  back  in 
order  that  the  District  Judge  may  deal  with  the 
prayer  for  accounts  and  for  damages. 
JUSTICE  LAWRIE’s  OPINION. 
Justice  Lawrie  said : — I agree.  The  plaintiff  has  by  his 
patent  an  exclusive  right  to  sell  tea  rolling  machiues  in 
which  motion  is  transmitted  to  the  top  rolling 
surface  through  the  oase  or  jacket.  The  best  evi- 
dence in  this  oase  proves  that  the  case  or  jacket 
is  the  sides  which  surround  the  upper  roller,  which 
form  a space  or  box  into  which  the  tea  leaf 
is  poured  aud  which  keeps  the  leaf  together  while 
it  is  being  roiled  between  the  surfaces  of  the 
two  rollers.  The  projections  which  connect  this 
case  or  jacket  with  other  parts  of  the  machine 
have  been  oalled  by  some  of  the  witnesses  a con- 
necting rod,  and  in  a sense  that  part  of  the 
projection  which  joins  the  case  to  the  gearing 
is  a connecting  rod  ; but  the  better  part  of  the 
evidence,  and  I think 
A REASONABLE  USB  OF  W0BDS, 
leads  me  to  the  cooclnsion  that  a part 
of  the  jaoket  is  the  thickened  band  whioh 
passes  round  the  oase  or  jacket  and  which  at 
onoe  serves  to  connect  it  with  the  gearing  and  to 
give  it  strength.  I do  not  include  as  part  of  the 
case  or  jacket,  the  bow  bracket,  spindle,  &c.  By 
“ through  ” I understand  “ by  meanB  of.”  If  this 
meaning  were  attached  to  the  words  “ case  or  jaoket” 
there  would  be  bat  little  difference  of  opinion  be- 
tween the  witnesses,  and  I think  that  all  would 
agree  that  in  the  Triple-action  roller  the  motion  is 
transmitted  to  the  upper  roller  by  means  of  the  oase 
or  jacket  if  case  or  jacket  ’ includes  as  much  as 
I hold  it  does.  The  motion  is  not  transmitted 
precisely  at  the  same  place  or  in  the  same  way 
in  the  defendants’  maohine  as  in  the  plaintiff’s,  though 
I confess  I agree  with  those  witnesses  who  are 
unable  to  see  much  difference  ; but  the  exact  way 
in  whioh  the  motion  is  transmitted  is  not  the  ques- 
tion. The  question  is— Is  the  oase  or  jaoket  whether 
