as to the obtaining of letters-patent was entirely changed. No doubt, as a patent-agent, he was bound to possess a reasonable degree of skill and knowledge of his profession; but he was not bound to be so intimately conversant with the law as to know the precise effect of the decision of Ex parte Bates (1). The law allows a patentee six months from the date of the provisional specification for filing a complete specification; notice to proceed being given at the expiration of the first four months. Can it be said that the defendant was negligent in delaying the necessary steps only for the periods allowed by law? Such a delay was always usual, and is frequently essential to the interest of the patentee. The defendant could have no notice of the precise character of the invention for which Perman's patent was taken out until the decision of the Attorney-General, on the 11th of October. The title would give him none.

*BYLES, J. In this case the rule calls upon the plaint- [125 iffs to show cause why a nonsuit should not be entered, if this Court should be of opinion that there was no evidence of negligence. My Brother Lush, acting as judge and jury, directed a verdict for the plaintiffs. We ought not to interfere with that direction, unless we can clearly see that the learned judge was wrong in his view of the facts. I do not see that he was wrong; nor am I satisfied that I should not have come to the same conclusion that he came to. There were two facts before him which in my judgment tend to establish negligence on the part of the defendant: 1. The long interval between April and October which he suffered to elapse before he took steps to make the plaintiffs' patent available; 2. his ignorance of the decision in the case of Ex parte Bates (1), which, had he been aware of it, as I think he ought to have been, would have apprised him of the danger he was incurring. These grounds seem to me enough to sustain the verdict.

BRETT, J. The defendant undertook for reward to act for the plaintiffs as a skilled agent in obtaining a patent for them. He was, therefore, bound to bring reasonable and ordinary care and knowledge to the performance of his duty as such skilled agent. It is suggested that the defendant did not bring reasonable and

(1) Law Rep., 4 Ch., 577.

ordinary care and skill, because he unnecessarily delayed applying to the Attorney-General for his fiat to get the letters-patent sealed, from the 28th of April, when he was instructed, until October. Now, if there had been no such decision as Ex parte Bates (1), I must confess I should not have thought that evidence of want of care and skill. The delay would not have been greater than was consistent with the exercise of ordinary care and skill. The ordinary practice was, to wait until the expiration of four months before giving notice of intention to proceed with the patent, and then to wait two months more before filing a complete specification and obtaining the great seal to be affixed. But in May, 1869, the case of Ex parte Bates (1) was decided by the Lord Chancellor, which totally altered the practice in this respect. I entirely agree that an agent of this kind is not 126] bound to be accurately acquainted with the *whole law of patents: but I think he is bound to know the law as to the practice of obtaining patents: and, as this was a most important decision with respect to the sealing of patents, the very practice the conduct of which he undertook for reward, I think he was bound to know it. Since that decision, patent-agents are not entitled to carry on their business as they had done before. If the defendant had regulated his course according to that decision, he would not have delayed so long in proceeding to perfect the patent which he was employed to obtain. For that delay he is I think responsible, especially as he was well aware that a second provisional protection had been obtained for a similar invention. I am clearly of opinion that there was some evidence of negligence to justify a jury in finding for the plaintiffs.

GROVE, J. I am of the same opinion. Had this case occurred prior to the decision of Ex parte Bates (1), I must confess I should have entertained great doubt. In obtaining letterspatent certain steps are to be taken at given periods, and certain fees are to be paid on the taking of each of these steps. It is not unreasonable that the agent should be anxious to save his client from an outlay that might turn out to be unnecessary. The invention might be of little value. If therefore the case had stood only upon the delay in giving notice of his intention to (1) Law Rep., 4 Ch., 577.

proceed with the patent until the end of the prescribed period, I should have hesitated to say that he was guilty of negligence. So, again, I should have hesitated to hold the defendant guilty of negligence by reason of his being ignorant that Perman's invention was in substance the same as Evans's; for, as Mr. Lawrence very properly observes, he could not know that simply from the title. But I cannot help thinking that he was guilty of some negligence in not taking care to inform himself of a decision which operated so important a change in the practice as to the obtaining of patents. We all know that patent-agents are fully alive to all the decisions which take place upon the subject of patents: and I think we may fairly hold it to be part of the duty of one who holds himself out as one skilled in that branch of professional knowledge, to become acquainted with a decision which had so *important a bearing upon the [127 practice. It is now necessary to get a patent sealed as soon as possible, in order to prevent a rival inventor from stepping in as Perman did in this case. I cannot say that ignorance of that change in the practice was not some evidence of negligence.

Rule discharged.

Attorney for plaintiffs: J. Needham, for Bolton, Waterhouse, & Bolton, Wolverhampton.

Attorneys for defendant: Wright & Venn, for Anderson, Collins, & Robinson, Liverpool.

48

*CASES

DETERMINED BY THE

COURT OF EXCHEQUER,

AND BY THE

COURT OF COMMON PLEAS

ON ERROR AND APPEAL FROM THE COURT OF QUEEN'S BENCH,

IN AND AFTER

HILARY TERM, XXXV VICTORIA.

127]

Jan. 22, 1872.

JOSSELYN V. PARSON and Others.

Law Reports, 7 Exchequer, 127.

Covenant not to carry on a Trade - Construction—“Merchant.”

In an action on a bond, conditioned that the defendant should not "travel for any porter, ale, or spirit merchant, as agent, collector, or otherwise":—

Held (by Bramwell and Pigott, BB.; Martin, B., doubting), that the condition of the bond was not broken by the defendant's entering into the service, as tra. veller, of a brewer.

ACTION on a bond for 100l., dated the 22d of December, 1866, given by Henry Parson, as principal debtor, and the other defendants as his sureties, upon his entering into the employment, as traveller, of the plaintiff, a porter, ale, and spirit merchant, at Colchester; one of the conditions of the bond being, that the said Henry Parson "do not at any time or times within twelve calendar months after the termination of his service with the 128] said Charles Josselyn, travel for any porter, ale, or spirit merchant, as agent, collector, or otherwise, in Colchester aforesaid, or within twenty-five miles thereof."

At the trial before Byles, J., at the Suffolk Summer Assizes, 1871, it appeared that the defendant quitted the plaintiff's service in April, 1871, and on the 12th of June following, entered the service, as traveller and collector, of Messrs. Daniels, who were brewers at Colchester, and solicited the plaintiff's customers within twenty-five miles of Colchester, for orders for ale and porter brewed by the Messrs. Daniels. At Colchester Messrs. Daniels had a brewer's (1) but not a dealer's license (2); in London they had a store, and took out a dealer's license, but only sold ale brewed by themselves at Colchester. It was contended for the defendants, that no breach of the condition was shown, a brewer selling his own beer not being a "porter, ale, or spirit merchant;" and a verdict was entered for the plaintiff' for nominal damages, with leave to the defendants to move to enter it for them, the Court to be at liberty to draw inferences of fact, and their judgment to be final. A rule having been obtained accordingly.

No one appeared to show cause.

Bulwer, Q. C., and Graham, in support of the rule, cited Com. Dig. Merchant (A): "Every one shall be a merchant who traffics by way of buying and selling, or bartering of goods or any merchandise, within the realm, or in foreign parts;" and contended that a man who merely sold what he manufactured could no more be called a merchant than a farmer could who sold the grain which he had raised, or the owner of a vineyard who sold the wine grown there. A merchant is one who both buys and sells; that is, buys the same thing that he sells, and makes his profit out of the difference in price; and that the distinction between the trade of a dealer as carried on by the plaintiff, and the trade of a brewer as carried on by the Messrs. Daniels, was recognized by the Legislature in the various statutes, which regulated the different licenses granted to each.

*BRAMWELL, B. I think this rule should be absolute. [129 The question is, did the defendant by entering the service of a brewer, break his engagement not to enter the service of a

(1) See 6 Geo. 4, c. 81, s. 2; 11 Geo. 4 & 1 Wm. 4, c. 51, s. 7; 13 & 14 Vict. c. 67, 88. 6, 7.

(*) 6 Geo. 4, c. 81, s. 2; 26 & 27 Vict. c. 33, s. 1.