Young & others v. Fernie & others (1), 1864

VICE-CHANCELLOR'S COURT (Before Vice-Chancellor STUART.)

Selected extracts including the opening summary of charges.

Monday 29th February 1864

Mr Grove (for Young, the plainiff)

In 1861 it was found that a firm of the name of Miller &Co., who carried on business at Aberdeen and Glasgow, were infringing the patent. Proceedings were taken against them; they paid £5000, and took a licence from Mr. Young. Some other proceedings were taken about the same time against a company at Wareham, known as Messrs. Humphrey and Co. After these proceedings were commenced, it was found that the defendants had mortgaged their plant and their works; the mortgagees fore closed; they became bankrupt, and their works closed altogether. The plaintiff therefore, did not proceed any further.

Then there came the alleged infringement in the present case; and this was attended with circumstances which he thought the learned counsel for the defendants must regret. The plaintiffs had been going on manufacturing oil, and selling it at a reasonable price; and they had very largely increased their manufactures. The trade had become one of great importance, and, as to the products, of great notoriety. The plaintiffs had introduced into their manufactory certain practical improvements, but still adhering to the substantial mode of treatment indicated in the specification.

In February, 1861, a person of the name of Charles Hussey Jones, who was the owner or lessee of a colliery at Leeswood, in Flintshire, applied to the plaintiff for a licence. He was, as it subsequently appeared, interested with Fernie, more or less; and a person of the name of Varley, who was employed and paid by Fernie, one of the defendants in the present case, inspected the plaintiff's works, and was shown there all their processes, and certain retorts for the manufacture of their paraffin-oil were furnished to him of the best character. About the same time Jones applied to the plaintiff for a licence. He was offered one at the ordinary royalty at which the plaintiffs granted them to other persons; but, after some negotiation, Jones said the terms were too high, and declined to take a licence.

In 1861, in addition to the works which were at Leeswood, works were erected at Saltney, about 10 miles from Leeswood, and having a railway communication between them. Application was made to Jones, who had taken a licence from the defendants, for returns of any manufactures under the licence but none were ever offered; and, after some inquiry, the plaintiffs were inclined to suspect that Fernie, and whoever else was associated with him, were manufacturing their oil without any licence or per mission. In addition to the information which Jones had got as a licences, and which Varley had got by having inspected the plaintiff's works, it appeared that certain apparatus was procured by Fernie from persons who had formerly been employed by the plaintiffs in putting up their works; so that the defendants in this way got possession of everything which Mr. Young was doing.

The gentlemen who, on the present occasion, would tell his honour that the invention of Mr. Young was two centuries old seemed to have taken very elaborate pains to find out what he was doing; and, having done so, they put it in practice in a manner which, for some time, defied the efforts of Mr. Young to discover. But in the months of February and July, 1862, a person of the name of Rennie went to Saltney and Leeswood, to find out what the defendants were doing. He found that the works at Saltney were practically at a standstill; and so, also, the works at Leeswood. However, he persevered, and on the 2nd of August, in that year, Mr. Rennie, accompanied by a Mr. Smith, went to the works at Leeswood, and on getting near the works, they saw several retorts at work, with fires underneath them. They saw the materials with which the retorts were charged, which was with Leeswood cannel coal, that being one of the kinds of coal specially referred to by Mr. Young in his specification. Rennie saw a man charging the retorts with cannel coal. Smith went into the works, and asked the engineer to give him a bottle of the crude oil which was running from the retorts or stills. This request was complied with; the contents were analyzed, and were found to be the crude paraffin-oil of Mr. Young.

An examination of the works at Saltney was made by Rennie the next day. There he saw large quantities of cannel coal, and also retorts similar to those of the plaintiffs. On the 29th of August, a chemist of the name of Turner applied to the defendants for a 30-gallon cask of paraffin-oil. This was supplied; it had also been examined by chemists, and the result was that it was found to be the some as the product of the plaintiffs. The retorts were also being worked at the "low red heat" pointed out by Mr. Young. The contest on the part of the defendants was that they employed a lower temperature than "low red heat," and therefore did not infringe. He (Mr. Grove) contended that this was no defence at all, because the specification of Mr. Young, though be indicated a "low red heat" as the temperature, only said that that should not be exceeded. The defendants said that they produced their result at a temperature of 600°; but that was an entire fallacy, as the scientific evidence would prove. There were some very simple but very satisfactory tests. Mercury boiled at 660°; lead melted at about 620°. If a piece of bituminous coal were placed in melted lead or boiling mercury, it would be necessarily exposed to a temperature above 600°; and you might leave a piece of coal in it for an indefinite period and it would come out as it went in.

Saturday 5th March 1864

Mr. Charles Wilson, examined by Mr. BOVILL

In 1824 and 1825 I had the management of a portion of the Leeswood works for Messrs. William and Thomas Jones. I was there upwards of thirty years. We raised four kinds of coals; Main's coal, Brassey coal, Two-yard coal, and cannel coal. We raised the cannel coal in 1824-25. I know the Leeswood collieries, which are worked by Mr. Hussey Jones. He produces cannel and other bituminous coals. In August, 1862, I went to Messrs. Fernie's works, and saw the retorts they were using. I presumed they were used for distilling oil; there was no gas that I saw, The coal used was cannel coal. The heat was a dark heavy red. It was not approaching melting heat. It was the early stage of redness.

Cross-examined by Mr. MACHISON:

The lower part of the retort was of a dark red. It was a horizontal retort. There was said which was off; it was at the end of it. It was a mouthpiece, if you like to call it so. It was at the side. I do not know how long the lid had been taken off, except from the state of the embers. The retort was cased in brickwork. I saw the embers that had been taken out of the retort, and also the state of the fire. The embers I speak of were taken out of the retort. They were of a deep red, and so was the retort. I went to Leeswood on private business; there was a man there who owed me some money, who was employed there. I lived at Chester in August, 1862. I went to see my son-in-law, who lives in the neighbourhood, and once I got admission to the premises, because I went to inquire whether they wanted any retorts, I being a dealer in iron on commission. I think I gave information to the plaintiffs about a fortnight ago of what I saw, perhaps I was at Leeswood half an hour. I did not go as a spy to see what was being done.