TINDAL C. J. I see no sufficient ground of objection against this warrant of attorney to induce the court to grant the rule prayed for. I am disposed to think that the warrant of attorney was good on the 13th of November; the only objection against it in its original shape being that it had an improper stamp, not indeed with reference to the actual situation of the defendant at that time, but on the ground that his situation did not appear, as it is contended it ought to have done, on the face of the warrant of attorney. But admitting that to be an objection, it is a sufficient answer to say the court would not be inclined to grant a rule to set aside a warrant of attorney merely on the ground of its bearing an imperfect stamp, because while the rule was pending the parties might set the matter right by going to the stamp office and paying the penalty. But, as I have before stated, I think that- rebus sic stantibus in the state of affairs on the 13th of November, this was a good warrant of attorney. Then the question arises whether a material alteration has been made in the instrument since that time, so as to vitiate it. The authorities are strong to shew that if a deed be altered in an immaterial part, by a stranger (a), or in a material part by the consent of the parties (6), it is not thereby vitiated: they are collected (a) For this position Comyns cites 11 Co. 27.a. (Henry Pijot's case), where, in a bailbond, the words "sheriff of the county of Oxford" were added after the execution. The defendant pleaded non est factum, without demanding oyer of the bond or condition. The court gave judgment for the plaintiff upon a special verdict, on the ground that for any thing which appeared to the court, the alteration may have been made in a point (b) For this Comyns cites 1842. HARTLEY บ. MANSON. 1842. HARTLEY v. MANSON. in Com. Dig. tit. Fait (F. 1.) Now the alteration in this instrument was not material in my opinion; it was moreover made with the consent of both parties, and was merely intended to correct a mistake and carry out their original intention. It falls within that numerous class of cases upon bills of exchange, where, after a bill has been drawn and delivered, an alteration, made in pursuance of the original intention of the parties, has been held not to vitiate the bill; as where the words "or order" were introduced after the bill had been indorsed. (a) The utmost that can be said is, that the introduction of the words in this warrant of attorney (b) might save the parties some trouble and expense in proving that the defendant was in custody at the time the warrant of attorney was given; as it does not appear in any way to interfere with the object of the instrument. In Walmesley v. Bryant (c), where a bond was conditioned executed by A. and B., the two obligors named therein, the name and addition of C., a third obligor, were interlined, with the consent of all parties, and C. executed the bond, which was held to be the joint bond of A., B., and C. He also refers to a dictum of Popham, in Cro. El. 627. (Markham v. Gonaston), in which, according to the statement in Comyns, it would appear that Popham had said that a material alteration made by consent, upon an agreement that an addition should be made after the deed is sealed, does not vitiate the deed. But upon referring to Cro. El., it will appear that the dictum is of a more qualified character: "But if it had been appointed by the obligor before the ensealing and delivery thereof, that it should be afterwards filled up, it might then, peradventure, have been good enough, and it should not have made the deed to be void." Vide antè 172 (a) (a) See Kershaw v. Cox, 3 Esp. N. P. C. 246., 10 East, 437.; Jacobs v. Hart, 2 Stark. N. P. C.45.; Byrom v. Thompson, 11 A. & E. 31., 3 P. & D. 71. See also Brett v. Picard, 1 R. & M. 37.; Attwood v. Griffin, Ib. 425. (b) As to the consequences of such an alteration, see Markham v. Gonaston, antè 172 (a), 175 (a). (c) 1 Moo. & Rob. 529. for the payment of money, which was declared to be the same money as that secured to be paid by an indenture of even date, but it did not appear, by any recital, that the indenture required an ad valorem stamp, Parke B. held, that in order to dispense with an ad valorem stamp on the bond, it was necessary to produce the indenture, to shew that it was properly stamped with an ad valorem stamp. This however was not done for the purpose of negativing the obligation of the bond, but the party was put to this extra trouble from not having recited the fact in the deed. On these grounds, therefore, I think the rule must be refused. COLTMAN J. I am of opinion that the original warrant of attorney was valid. Objections on the stamp laws-though the revenue certainly ought to be protected are not to be stretched against the subject. I think extrinsic evidence would have been sufficient to support this warrant of attorney so as to shew that it was good on the 13th of November. The alteration did not vary the liability of the parties, for it was not in a material part, and, consequently, would not vitiate what was good before. ERSKINE J. I also am of opinion that the warrant of attorney after the execution on the 13th of November was valid; and that the subsequent alteration did not deprive it of its validity. No case has been cited to shew that a 17. stamp was not sufficient on the 13th, as the instrument then stood; and I think it was not necessary to shew on the face of the warrant of attorney that the defendant was then in custody. In the schedule to 55 G. 3. c. 184., under the title Warrant of Attorney, the exception to the general duty is confined to the two cases where the payment of money shall be already se 1842. HARTLEY v. MANSON. 1842. HARTLEY V. MANSON. cured by a bond, mortgage, or other security which shall have paid the ad valorem duty, and where the warrant of attorney shall be given to secure any sum of money for which the person giving the same shall be in custody under an arrest. In these cases a duty of 17. is imposed, the two cases being put on the same footing; and the same construction must be given to both exceptions. The present case, therefore, which falls within the latter class of exceptions, would be governed by Walmesley v. Bryant (a), which came within the former class. Then I think if the stamp was sufficient as the instrument originally stood, without the recital of the fact of the defendant being in custody, the subsequent alteration, by the introduction of the recital of that fact, was not material. If it were material, the only effect would be to make a new stamp necessary; but even then, for the reasons already given, I think the court ought not to grant a rule to set aside the warrant of attorney. But independently of that, the words introduced were in accordance with the original intention of the parties, and, therefore, according to decided cases, even supposing the alteration were material, a new stamp could not be necessary. CRESSWELL J. concurred. (a) 1 Mood & Roby. 529. (b) The objection that a warrant of attorney has an insufficient stamp, or none at all, can be taken advantage of only by a motion to set the warrant of attorney aside. If it is a ground for refusing such an application that the defect may be cured, there seems to be no Rule refused. (b) motive for incurring the expense of a stamp in any case. The revenue would appear to be better protected, by granting the rule, and afterwards discharging it upon payment of costs by the party whose contravention of the law had occasioned the application. 1842. GIBSON and Another v. BRAND. pro May 3, 4, 5. In case, for infringing a patent for a new and im proved pro facture of silk, the in cess or manu declaration alleged in the was that the CASE, for the infringement of a patent, granted to the plaintiffs for a new and improved process or manufacture of silk, and silk in combination with certain other fibrous substances. The declaration stated that the patent contained the usual provisoes, as to the invention being new, and as to the inrolment of a specification; and that the plaintiffs were the true and first inventors of the fringement cess described, and did inrol a certain instrument in writing containing a proper specification. Breach: that the defendant had directly and indirectly made, used, and put in practice the said invention and every part thereof, and counterfeited, imitated, and resembled the same. Pleas: first, not guilty; secondly, a traverse of the allegation that the plaintiffs were the inventors; thirdly, that the invention in the letters patent and in the specification mentioned, was not a new invention; concluding with a verification; fourthly, that the said alleged invention and improvement were of no benefit or advantage to the public; concluding with a verification; fifthly, that the said instrument in writing in the declaration mentioned, was as follows: "To all to whom, &c. (It then recited the grant of to be manu defendant had, directly and indirectly, made, used, and put in practice the said incounterfeited vention, and the same: Held, that this allegation was supported by proof that the defendant had ordered silk factured by certain parties same. by the plaintiffs' process, and had afterwards received and sold the A plea in an action on the case for infringing a patent, set out the specification in hæc verba, and alleged that the plaintiffs did not inrol any instrument other than that set out, and that such instrument did not particularly describe the nature of the invention. The jury having found a verdict for the plaintiffs upon their traverse of this plea: Held (hæsitante Coltman J.), that judgment could not be arrested upon the ground of the specification being otherwise defective. The third and fourth issues raised the question whether the alleged invention was a new invention; the jury found specially that it was not a new invention, or a new combination, but that it was an improved process: Held that, upon these issues, the verdict should be entered for the defendant. |