February 4, 1871.] THE PHARMACEUTICAL JOURNAL AND TRANSACTIONS. 
G35 
IMiamcnfatrjr anir fato ItomMngs. 
THE BETTS SUITS. 
Lord Chancellor’s Court, 30 th January, 1871. 
Betts v. Willmott. 
This was an appeal by the plaintiff against a decree 
dismissing his bill with costs, made by the Vice-Chan¬ 
cellor James, on the 28th June, 1870, reported in the 
Pharmaceutical Journal, 3rd series, Vol. I. p. 32. 
The plaintiff had, by an order of the Lord Chancellor 
dated 3rd August, 1870, become bound in the suits Betts 
v. Potts, v. Cleaver , v. Field, v. Brooks, v. Foster , v. Pratt , 
v. Stevenson , v. Smith, v. Hall, v. Hart , v. Ellis, y. Warin, 
v. Cooper and v. Preston to abide the result of the appeal 
in Betts v. Willmott. 
Mr. Willcock, Q.C., Mr. Grove, Q.C., and Mr. Everitt 
appeared in support of the appeal—Mr. Kay, Q.C., Mr. 
Eddis, Q.C., and Mr. Langley, for the respondent. 
The Lord Chancellor, at the close of the appellant’s 
case, and without calling upon the respondent’s counsel, 
delivered judgment. 
Mr. Kay, I think, not having heard you, the case 
lias been established by Mr. Betts, upon whom the onus 
is thrown, that you are making an indirect use of his 
invention, but he is bound to prove two things, one of 
which, it appears to me (not having heard your argu¬ 
ment upon it), he has proved, namely, that there is a use 
■of his invention. But the question is, whether it is an 
unauthorized use. It appears to me, the onus being- 
thrown on Mr. Betts to prove that he has not discharged 
liimself of it, he has to show that this thing you are 
using is not manufactured by him. That he attempted 
to do, in the first instance, by an affidavit in which he 
says it has not his private mark. 
Mr. Kay .—He does not even swear that, my Lord. 
The Lord Chancellor .—I took that rather from the 
Vice-Chancellor’s judgment. Therefore he says, priinu 
facie, “I did not make this,” but what turns out upon 
cross-examination is this. He says, when cross-ex - 
-amined, that he is not only the manufacturer of this 
article in England, but that it is manufactured abroad 
by him in two different manufactories. It appears he 
bought up, at Paris, a business where the article was 
manufactured in the name of Espinasse, and he con¬ 
tinued afterwards to carry on the business there, through 
the medium of Espinasse, who was acting as his paid 
■agent, and therefore, for all purposes, Espinasse is the 
plaintiff in the suit. Being cross-examined further as 
to what is the actual condition of the thing so manu¬ 
factured by him, and having made the admission that 
there is a manufacture of this article in Paris, he thus 
continues in his cross-examination, “I cannot answer 
whether the capsules A. B. and C., mentioned in the 
same affidavit, are or have ever been in my possession. If 
they are, my solicitor lias them. I cannot now produce 
the Exhibit numbered 210. The eleven bottles now 
produced and marked as Exhibits 263, 201,” (and a 
number of others) “are the several bottles I rely on 
in eleven of my several suits. I don’t know whether 
the Exhibit No. 210, did or not correspond, in external 
appearance, with these eleven. The exhibits numbered 
201 and 207 being infringements, I have no doubt No. 
210 did correspond, in external appearance, with them, 
hut I cannot compare them with a thing which is not 
present. After examining the capsules on the eleven Ex¬ 
hibits, and those on the Exhibits numbered respectively 
211 and 401, I cannot say by whom those capsules 
were manufactured.” Then he is asked, “Will you 
pledge your oath whether those capsules were or not 
manufactured by your house of Espinasse?” Answer, 
” I believe they are infringements, and that they arc 
Tiot of the house of Espinasse. I found this my belief 
on this, that Rimmel’s dies, in Paris, do not correspond, 
R3 I have been informed, with the stampings on those, 
but I will not swear that they do not correspond exactly.” 
Then a little lower down he says this, “I do not know 
whether it is the fact that Dupre’s capsules supplied to 
Rinnnel boro Dupre’s name upon them,” and at line 52, 
he says, “ I will not swear that each of the capsules on 
the eleven Exhibits, and on those numbered 211 and 401, 
was not made by my house of Espinasse, or that they 
were not sold and delivered by that house to Eugene 
Rimmcl.” That is the part which, to my mind, creates 
the great difficulty in the plaintiff’s case. Unluckily 
210 itself has been lost, but we cannot help that, and we 
cannot, therefore, deal with that specially. He will not 
pledge himself to say that there is any real distinction 
between 210 and the others which arc exhibited. As to 
those others which are made Exhibits, ho says, “ 1 have 
sworn that they were not manufactured by me, but I 
will not take upon myself to say that they were not 
manufactured by my house in Paris, or were not sold by 
that house to Rimmel.” 
That being so, the onus, I apprehend, being on the 
plaintiff to show that not merely is the thing made his 
own patented article, but that it has been unlawfully 
sold, he must be prepared to swear distinctly that it is 
not manufactured by him or his agents. Take this case. 
Supposing he had three houses of manufacture,—one in 
the north of England, one in the west of England, and 
one in London. I apprehend it would be his duty in 
making out his case before a jury to come forward and 
prove not only by his London agent that the article was 
of the same description as the patented article, but ho 
would have to show it was not made by himself; and, 
for that purpose, he would have to call persons who had 
the control of his house in the north, also of his house 
in London, and also of his house in the west, to 
prove that no such articles were made by them. 
As things of a similar description are sold by millions, 
and are sold for the purpose of being distributed in 
every shop throughout the whole length and breadth 
of the land, it would be extremely improbable—not 
impossible, but a matter of considerable difficulty—for 
the persons who, from time to time, purchased not the 
capsules themselves brut the bottles covered with the 
capsules, not being buyers of capsules wholesale, but 
purchasers as part of their stock in trade of a variety of 
bottles at a time, sometimes one bottle of one article, and 
sometimes twenty bottles of another article,—it would be 
impossible for them to go round to the whole trade and 
trace these bottles through the variety of persons into 
whose possession they might have got, in order to show 
that they could be traced up to the plaintiff’s manufac¬ 
tory, without the Court in the least requiring it in the 
first instance; there should be the plaintiff’s oath. If he 
takes that oath, and throws the onus on the defendants, 
they must meet it as best they may, but the oath of the 
plaintiff would be required to show that he had not manu¬ 
factured that thing which had got into the hands of the 
particular defendant who is brought before the Court. 
This plaintiff discharged that duty in the first instance by 
saying, “I did not manufacture that particular thing; ” 
but on cross-examination he says, “ when I made that 
affidavit I did not intend to describe it in that way as 
not having come out of my manufactory in France, and 
I will not swear that now.'” The Vice-Chancellor’s ob¬ 
servations are certainly somewhat strong upon this gen¬ 
tleman, and I do not know quite that I should myself 
make the same strong observations, because the gentleman 
may possibly have had in his mind that view of the law 
which has been submitted by his counsel; and I quite 
agree with Mr. Grove that an argument might have 
been presented on that point, although I do not remem¬ 
ber such a point having been brought before the Court 
before, or that the circumstances ever occurred which 
could give rise to such an argument; the point is this 
supposing a man to have a patent in Franco and a pa¬ 
tent in Belgium and a patent in England, and he esta¬ 
blishes manufactories in each place for the manufacture 
