be no injunction granted, because the plaintiff is unable to prove that there was not, in fact, an infringement, and he is not able even to present to the Court such a case as would show that, probably even at the trial, that result would be brought about. That being so, I have nothing to do with the proviso at the end." (28 Ch. D. 394; 52 L. T. 573; 33 W. R. 576; 2 O. R. 173; Griff. 48.)

(r) HOUSEHOLD And Rosher v. Fairburn and Hall. [1884-5]

The plaintiffs, who were the makers of water elevators, commenced an action to restrain the defendants from continuing to issue a circular cautioning the public against the use of such elevators, as being infringements of the defendants' patents, and gave notice of motion for an injunction. The defendants commenced a cross action to restrain the plaintiffs from infringing their patents:-Held, that as there was no evidence of malá fides on the part of the defendants, they ought not to be restrained from issuing the circular until the action had been disposed of, but that they must undertake to prosecute their action with due diligence. The defendants, in fact, prosecuted their action as leisurely as they could, and the plaintiffs again moved in the original action for an injunction to restrain the issue. The injunction was granted. (51 L. T. Rep., N. S., 498; 1 O. R. 109; 2 O. R. 140; Griff. 131.)

(8) WILSON AND Co. v. WALTER E. CHURCH ENGINEERING COMPANY. [1885.]

The defendant company had commenced an action for infringement against the plaintiffs. The plaintiffs subsequently commenced an action under sect. 32, and applied for an injunction ex parte on an affidavit that the defendants had claimed royalties on machines supplied by the plaintiffs:-Held not to be a case for an ex parte injunction, but that notice of motion must be given. (2 O. R. 175.)

(t) DRIFFIELD LINSEED CAKE COMPANY v. WATERLOO MILLS CAKE COMPANY. [1886]

The words "Threats by circulars, advertisements, or otherwise," in sect. 32, include threats by private letter to the person charged with infringement, the words or otherwise" not being restricted to communications ejusdem generis with circulars or advertisements. The solicitor to the defendants sent a letter to the plaintiffs alleging an infringement of defendants' patents, and threatening proceedings. The plaintiffs asked for particulars. The defendants' solicitors refused to give the details asked for, but again threatened proceedings. No proceedings were taken, and in their defence to this action the defendants at first alleged an infringement, but afterwards struck out the allegation. A perpetual injunction was granted, with costs. The plaintiffs further claimed damages, and alleged that since the defendants' threats, they had stopped the progress of certain new works. Their business had not been sus

pended-Held, that there was no case for an inquiry as to damages. (31 Ch. D. 638; 55 L. J., Ch. 391; 54 L. T. Rep., N. S., 210; 34 W. R. 360; 3 O. R. 46; Griff. 80; 2 T. L. R. 314.)

(u) WALKER v. CLARKE. [1887]

On a motion for an interim injunction, under sect. 32, to restrain threats, it is not necessary for the plaintiff, in every case as a condition precedent, to prove that he has not infringed the defendant's patent; but the question is one of the balance of convenience and inconvenience, and the Court will decide according to its opinion whether more harm will be done by granting or refusing an injunction. (56 L. J., Ch. 239; 56 L. T. Rep., N. S. 111; 3 T. L. R. 297; 4 O. R. 111; 35 W. R. 245.)

(v) GOULARD v. LINDSAY. [1887]

The plaintiffs, having brought an action for infringement, pending the trial issued advertisements, stating that in consequence of the continued infringement of their patent by the defendants they had commenced an action against the defendants, and that actions would be commenced against all persons employing or using apparatus which was not according to the letters patent without the leave of the patentees:-Held, that notwithstanding the proviso at the end of sect. 32, the plaintiffs were not justified in issuing advertisements containing a positive statement that defendants had infringed. (56 L. T. Rep., N. S., 506; 4 O. R. 189.)

(w) FUSEE VESTA COMPANY v. BRYANT AND MAY. (No. 2.) [1887]

The plaintiffs having commenced an action for infringement, asked for leave to apply to disclaim, and that, pending the decisiou thereon, further proceedings might be stayed. Having obtained, on terms, the order asked for, the plaintiffs sent circulars to customers of the defendants, threatening legal proceedings. The defendants, as the proceedings were stayed, did not bring in a counter-claim, under sect. 32, but moved for an injunction to restrain the threats :-Held, that the Court had jurisdiction to grant the injunction asked for. (56 L. T. Rep., N. S. 136; 3 T. L. R. 408.)

(x) CHALLENDER v. ROYLE. C. A. [1887]

Sect. 32 consists of two parts: the first part contains directions as to what circumstances will enable a person threatened to obtain judgment in an action; the second part contains a proviso which excepts certain cases from the section, so that if a case comes within the proviso, it must be dealt with under the old law. The first part contemplates a final judgment, and in order to obtain an interlocutory injunction, the plaintiff must make out a primâ facie case, i.e. a case such that, if the evidence remains the same at the hearing, it is probable that he will obtain a decree, and unless he makes out such a case, an injunction will not be granted on the mere balance of convenience and inconvenience. Prima facie

the onus is on the plaintiff to show that what he did was "not an infringement of any legal right," and (semble) for that purpose. he may call in question the validity of the defendant's patent.

Challender brought an action against Royle, under sect. 32, to restrain Royle from issuing threats against persons selling Challender's patent articles. After the issue but before service of the writ, Royle commenced an action for infringement against a company who were selling Challender's articles: -Held, that the case was within the proviso, for that in order to bring the case within the proviso, the action need not be against the person aggrieved, but may be any action to test the validity of the patent, or the fact of infringement honestly brought with reasonable diligence against any of the persons to whom the threats have been made, and that in considering whether such action is brought with due diligence, the time of issuing the threats, and not the time when the party bringing the action first knew of the alleged infringements, is the period to be looked at. (36 Ch. D. 425; 3 T. L. R. 790; 4 O. R. 363.)

In this case the order made by Bristowe, V.-C., was substantially in the terms of the notice of motion, viz., to restrain the defendant, personally or by his servants, agents and workmen, by circulars, letters, or otherwise, from threatening any person with legal proceedings or liability in respect of the manufacture, use, sale, or purchase, of a certain tap-union, of which the plaintiff was patentee, and from interfering by such threats, or otherwise, with the manufacture, use, sale, or purchase, of the plaintiff's invention. (36 Ch. D. 427.)

(y) KURTZ v. SPENCE. C. A. [1887]

Formerly, in an action for an injunction against threats by a person claiming the benefit of a patent, the two issues were: first, the good faith of the person making the threat; second, whether the person threatened was in fact infringing the patent. The validity of the patent was not in issue. (33 Ch. D. 581.) In an action under sect. 32, the plaintiffs alleged that the defendant's patent, which they were accused of infringing, was invalid.

Chitty, J., being of opinion that the words in sect. 32, "not in fact an infringement of any legal rights," did not allow the plaintiff to put in issue the validity of the patent, ordered the allegation to be struck out. (33 Ch. D. 579.) Subsequently the case was transferred to Kekewich, J., and the remarks in the case of Challender v. Royle having meantime established a contrary view of the law, and the time for appeal being passed, the plaintiffs applied for leave to amend by again alleging the invalidity of the patent. The application was refused, but, on appeal, leave to amend was given by the majority of the Court of Appeal on the terms that the plaintiffs should pay solicitor and client's costs of the application, and all costs incurred and wasted, and that the defendants should have the same notice of objections, and the same rights of beginning and replying as they would have had if they had brought an action for violation of their

patent. (36 Ch. D. 770; 3 T. L. R. 827; 4 O. R. 427.) Ultimately it was held that the patent was void, on the ground of part of the invention claimed being impracticable, and that the plaintiffs were entitled to an injunction, and forty shillings damages. (5 0. R. 161.) (33 Ch. D. 579; 36 Ch. D. 770; 55 L. J., Ch. 919; 3 T. L. R. 827; 55 L. T. Rep., N.S., 317; 35 W. R. 26; 3 0. R. 368; 5 O. R. 161.)

(z) BURT v. MORGAN AND CO. [1887]

The plaintiff was a patentee of an invention for improvements in carriage springs. The defendants wrote to customers of licensees of the plaintiff, who had fitted the plaintiff's springs to carriages, stating that the springs were infringements of the defendants' patents. The defendants were prosecuting an action for infringement against certain persons other than the plaintiff :-Held, that the plaintff was a person aggrieved, within sect. 32, and was entitled to an injunction, or an undertaking to abstain from. threatening. (4 O. R. 278; W. N. 1887, 123; 3 T. L. R. 666.) (2*) CRAMPTON v. PATENTS INVESTMENT COMPANY. C. A. [1888]

In an action to restrain threats, the Court having held that the defendants' patent was valid, and had been infringed, gave a certificate that the validity of the patent came in question without prejudice to the validity of such certificate. (5 Ó. R. 382.) The words "or otherwise" in section 32 of the Patents Act are not confined to matters ejusdem generis with circulars or advertisements, and may include threats made by a solicitor's letter. (Ib. 393.) An appeal as to the question of validity was dismissed. (6 O. R. 287.)

(a) UNION ELECTRICAL POWER AND LIGHT COMPANY v. ELECTRICAL STORAGE COMPANY. C. A. [1888]

The defendant company caused a notice to be inserted immediately below the plaintiffs' advertisement in the Standard, to the effect that the defendants were the owners of patents for various specified modes of construction of secondary batteries, and that every manufacturer or individual user of secondary batteries of such construction, without licence from the defendants, rendered himself responsible for such unlawful manufacture or use. The defendants also sent threatening letters to the plaintiffs' customers. The plaintiffs alleged that the defendants' patents were all invalid, and applied for an injunction to restrain the threats. The defendants applied for particulars of objections to their patents. Ordered, that on the defendants giving a list of the patents on which they intended to rely, the plaintiffs should within three weeks deliver particulars of objections to the validity of those patents. (38 Ch. D. 325; 5 O. R. 329.)

(b) COLLEY v. HART. [1888 and 1890.)

Form of order to restrain threats in Challender v. Royle, (36 Ch. D. 427), followed by North, J. In an action to restrain threats, when

there is a doubt whether the thing does infringe what the defendant calls his rights, the fact that the defendant does not bring an action to assert his rights is a fact to be considered in forming an opinion whether he has such rights or not. (6 O. R. 17.)

(c) UNGAR v. SUGG AND CO. [1889]

Action for an injunction to restrain threats in respect of some lamps supplied by the plaintiff and alleged to be infringements of the Sugg patent. The threats were admitted, and it was held by Huddleston, B., that on the pleadings the onus was on the defendants. The jury was asked whether the lamps supplied by the plaintiffs were substantially copies of the Sugg patent, and gave a verdict for the plaintiff, and an injunction was granted with an inquiry as to damages. (5 T. L. R. 373; 6 O. R. 337.)

(d) HERBURGER SCHWANDER ET CIE. v. SQUIRE. [1889]

The defendant, Squire, in an action to restrain threats, made the threats in October, 1886, and September, 1887. The action was commenced in October, 1887. In November, 1887, the defendant commenced two actions against other persons, and in December he counterclaimed for infringement :-Held, that he had not shown due diligence. An injunction to restrain was granted under sect. 32, although the claim was framed as if for slander of title, and not under sect. 32. (5 O. R. 589; 6 O. R. 194.)

(e) COMBINED WEIGHING AND ADVERTISING MACHINE COMPANY ♥. AUTOMATIC WEIGHING MACHINE COMPANY. [1889]

In consequence of two letters, dated September 21st, 1887, sent by the solicitors of the defendant company, the plaintiff company, on September 27th, 1887, having simply acknowledged the receipt of one of the letters which was addressed to them, commenced this action to restrain threats. On September 30th the defendant company commenced an action against the plaintiffs for infringement. The defendants having written another threatening letter to one of the plaintiffs' customers, the plaintiffs applied to North, J., for an interim injunction, but were refused, and given liberty to apply if the infringement action were not prosecuted with due diligence. On April 27th, 1888, the plaintiffs in this action offered to stay proceedings until the action for infringement was concluded; but the defendants refused, and threatened to apply for judgment, and accordingly the plaintiffs set the action down for trial, and the two actions were tried together. Kekewich, J., held that the infringement was proved, and accordingly dismissed the action for threats with costs. The Court of Appeal held that the combined company had not infringed, and reversed the judgment in the action for threats, and referred it back to Kekewich, J., to deal with the costs. (6 O. R. 367.) The Automatic Company had, prior to the threats in question, instituted and prosecuted an action against another defendant for other infringements :-Held, by Kekewich, J., (1)