well-known tool to work previously untried materials, or to produce new forms, is not the subject-matter of a patent.]

ERLE, C. J.-I am of opinion that this rule should be discharged. The whole claim of the plaintiff consists in the application of a known article to a purpose analogous to those to which it had before been applied; and that, in my opinion, is not the proper subject of a patent. The claim is for a "mode of constructing the hydraulic cups or joints of gasholders, or any other modification thereof, in which the top or bottom of the hydraulic joint or valve is formed of plates of iron made or bent into a cup shape, so as to admit of the valve being made complete and attached to the gasholder without the necessity of em ploying angle-iron and double sets of rivets, as is usually the case." It is in fact a claim for the application of double angle-iron to the formation of hydraulic joints to telescopic gasholders. Now, telescopic gasholders were well known, hydraulic joints were well known, and double angle-iron was also well known, and had been before applied to a great number of cognate purposes. In none of these was there any improvement. But it appears that those who had heretofore constructed telescopic gasholders formed the hydraulic joints by riveting two pieces of angle-iron to a plate which formed the top or bottom

of the cup. It was perfectly apparent and palpable that *451] double angle-iron would answer the same purpose, and save two rows of rivets, and consequently much additional labour. The whole claim of the patentee, therefore, amounts to this, he informs the manufacturers of gasholders that by the use of an article well known in the iron trade much labour and expense may be spared. That clearly is not the subject of a patent. It is nothing more than the application of a well-known instrument to purposes analogous to those to which it had before been applied. It is unnecessary to observe upon any of the cases referred to. This is not a claim for a new article, or for an improved article, but only for a cheaper way of using known materials.

WILLES, J.-I am of the same opinion. No doubt, a new combination of old machinery or instruments whereby a new and useful result is attained, may be the subject of a patent. But there must be some invention. There is none here. By making a thing in one piece instead of, as before, uniting several pieces together, the patentee no doubt effects a considerable saving of labour and expense. The merit is due to the person who first produced the article called double angleiron. That is old and well known, and had long been applied to purposes not dissimilar to that to which the present plaintiff applies it. The mere fact of its application to gasholders rendering their construction better or cheaper, does not constitute a subject-matter for a patent.

BYLES, J.-I am of the same opinion. The alleged invention is nothing more than the application of a known article to a purpose analogous to those to which it had long been applied. It is extremely *452] difficult to distinguish this case and Harwood v. The Great *Northern Railway Company from some of those which have been referred to by Mr. Webster. Suppose a common bucket, or the vessels used in a brewery plant, had formerly been made of three pieces of metal,-two for the sides, and one for the bottom,-and some

one discovered that an iron bucket or vat could be made cheaper of one piece; could a patent be taken out for that idea?

KEATING, J.-I am of the same opinion. This is nothing more than the application of an old and well-known thing to produce a result already well known, it may be in a better and cheaper manner. But there is no invention. Harwood v. The Great Northern Railway Company is a much stronger case than this, and certainly is an autho rity to show that this patent cannot be sustained.

Rule discharged

STRUGNELL v. FRIEDRICHSEN and Another. May 27.

A ship was chartered on the 12th of September, 1861, for the conveyance of a cargo of wheat from Harwich to St. Malo; ten days to be allowed for loading. The usual course was to load a portion of the cargo at a quay in the river Orwell, and to proceed lower down the river to take in the residue. The vessel having arrived on the 14th of September, and taken in 900 quarters (which was about three-fourths of the whole cargo), was proceeding down the river in charge of a pilot, when she got aground. The master, finding it necessary to take out the cargo in order to examine and repair the ship, gave notice to the charterers' agent, who accordingly, at the request of the master, and at the expense of the charterers, unloaded the 900 quarters, and despatched the whole quantity to its destination by other vessels. On the 4th of October, the master gave notice that he was ready to receive the cargo, and demanded it. The agent had none to ship :-Held, that the owner could not, under the circumstances, maintain an action against the charterers for not supplying a cargo.

THIS was an action by a shipowner against the charterers for refusing to load a cargo pursuant to the terms of the charter-party. The charter-party, which bore date the 12th of September, 1861, stipulated that the ship Arbutus should forthwith proceed to Harwich, and there load a *cargo of wheat, and proceed therewith to St. Malo. Ten days were allowed for loading.

[*453

The cause was tried before Byles, J., at the sittings in London after last Hilary Term, when it appeared that the Arbutus arrived at a place called Mistley, in the river Orwell, on the 14th of September, and there took on board 900 quarters of wheat, and on the 18th left the quay there under the charge of a pilot, and proceeded down the river (as was the usual course) to take in the rest of her cargo, 300 quarters; that, on her passage down the river, she got aground and received so much damage that the captain thought it necessary that the 900 quarters should be taken out, and the vessel examined and repaired; that he accordingly called upon the defendants' agent to unload the wheat, which was done on the 28th of September, at the expense of the defendants, and, time being important, the wheat was forwarded to St. Malo by other vessels; and that, the ship having been repaired, the master, on the 4th of October, gave notice thereof to the defendants' agent, and required him to reship the wheat, which he was unable to do.

The learned Judge, without intimating any opinion, directed a verdict to be entered for the plaintiff for 150%, the damages agreed on, reserving leave to the defendants to move to enter a verdict for them if the Court (who were to be at liberty to draw inferences as a jury) should be of opinion that under the circumstances the plaintiff was

not entitled to recover.

Manisty, Q. C., in Easter Term last, obtained a rule nisi accordingly. He referred to The General Steam Navigation Company v. Slipper, 11 C. B. N. S. 493 (E. C. L. R. vol. 103). There, by the terms of a charterparty, the plaintiff's ship (a steam-vessel) was to proceed to H., to be there ready to load by a given day, or so near thereto as she *454] *might safely get, and there load from the factors of the merchant such quantity of oxen, sheep, and [or] other lawful produce which the merchant might find it convenient to ship, not exceeding what she could reasonably stow and carry over and above her tackle, &c., and, being so loaded, was to proceed therewith to London, and deliver the same on being paid freight a lump sum of 4501. Two working days were allowed for loading and discharging, and three days on demurrage. Arrived at H., the vessel went alongside the jetty, and received on board a number of barrels of hams and 300 head of live-stock, for which the captain signed bills of lading. Being thus laden, the vessel was found to draw too much water to get over the bar, and the captain was consequently obliged to take out all the stock. He then proposed to the charterers' agent to stow on board so many of the cattle as would enable him to pass over the bar, and to remain outside and there take in the remainder at the charterers' expense and risk. The agent declined to accede to this, and refused to put any of the cattle again on board, unless the captain would take all. Being unable to come to terms, the captain proceeded on his voyage with only the hams on board. And it was held, that, under these circumstances, the owners were not entitled either to the stipu lated freight or to damages for the refusal to ship the cargo; for that, although the captain was not obliged to go within the bar at all, yet, having chosen to do so, and having received the cargo on board, and signed bills of lading, he was bound to find his way to his desti

nation.

Watkin Williams now showed cause.-If the defendants meant to rely upon any supposed exoneration from the performance of their contract, they should have pleaded and proved a dispensation. [BYLES, J.-*The plaintiff never was ready and willing to *455] take on board the whole cargo.] On the 4th of October the master was in a condition to receive a full cargo, and demanded it. The defendants would have had no ground of complaint if the vessel had not arrived at Mistley at all until that day. [BYLES, J.-She could not get back to the quay to take the cargo; and the master tendered no expenses. WILLES, J.-Instead of unloading the 900 quarters at his own expense, the master allowed the charterers to do so at their expense. Was not that a discharge of the contract?] If the defendants intended to rely on a supposed abandonment of the voyage, they should have gone to the jury.

Manisty, Q. C., was not called upon.

ERLE, C. J.-I am of opinion that this rule must be made absolute. The action is brought against the charterers for not supplying a cargo pursuant to the charter-party. The vessel, having taken three-fourths of the wheat on board, while proceeding to another part of the river for the purpose of receiving on board the remainder, took the ground and sustained damage. The master thereupon required the charterers' agent to take out what was shipped. He did so, and loaded it on

board other vessels. Under these circumstances, it seems to me to be perfectly clear that the action cannot be maintained. The rest of the Court concurring,

Rule absolute.

*COOPER and Another v. HUBBUCK.

June 6.

[*456

To a declaration for obstructing ancient lights, the defendant pleaded the custom of London to build on ancient foundations to any height; that the defendant was possessed of an ancient messuage adjoining the plaintiffs' premises, and towards which the windows in the declaration mentioned looked; and that, pursuant to the custom, he built thereon, and thereby unavoidably a little obscured the plaintiffs' windows.

To this plea the plaintiffs replied, that the access of light and air to the windows in question had been enjoyed as of right and without interruption by the respective occupiers of the plaintiffs' messuage for and during the full period of twenty years before the said obstruction, and for and during the full period of twenty years next before the commencement of a suit (or action) wherein the plaintiffs' claim in this action, and to the said access and use of light and air, was and is brought into question :

Held, Williams, J., dissenting,-that the twenty years' enjoyment of the access and use of light to a dwelling-house, &c., under the 3d and 4th sections of the Prescription Act, 2 & 3 W. 4, c. 71, is to be taken to be the period next before some action or suit wherein the claim shall have been brought in question, and, consequently, that the replication was good.

The custom to rebuild to any height upon ancient foundations in the city of London, is destroyed by the Prescription Act, s. 3.

THIS was an action against the defendant for obstructing the plaintiffs' ancient windows.

The declaration stated, that, during all the times thereinafter mentioned, the plaintiffs were the occupiers of a certain messuage and warehouse, with the appurtenances, and during the times aforesaid there were divers windows in the said messuage and warehouse through which the light and air during the times aforesaid ought of right to have entered, and still of right ought to enter into the said messuage and warehouse, for the more beneficial and convenient use and occupation and enjoyment thereof; yet that the defendant, wrong. fully, on divers days and times obstructed and hindered and prevented the light and air from entering through the said windows into the said messuage and warehouse as they of right ought to have done, to wit, by building and erecting and keeping and continuing a certain building and erection near to the said windows; by reason of which premises the said messuage and warehouse were and are rendered dark, close, and inconvenient, and less fit for use and occupation, and otherwise deteriorated; and the plaintiffs had been otherwise damnified: Claim, 5007.

Sixth plea, that the said messuage and warehouse, and also the said building and erection of the defendant in the declaration mentioned, were and are in the city of London, and that, in the [*457 city of London, from time whereof the memory of man is not to the contrary, there hath been ana still is an ancient and laudable custom there used and approved of, that, if any person or persons or body corporate has or have a messuage or house in the said city near or contiguous and adjoining to another ancient messuage or house, or to the ancient foundations of another ancient messuage or house in the said city, of another person or persons or body corporate, his or their

neighbour there, and the windows or lights of such messuage or house as first aforesaid are looking, fronting, or situate towards, upon or over, or against, the said other ancient messuage or house or ancient foundations of another ancient messuage or house of such other person or persons or body corporate, his or their neighbours there, so being near, adjacent, contiguous, or adjoining, although such messuage or house as first aforesaid and the lights and windows thereof be or were ancient, yet such other person or persons or body corporate, his or their neighbour or neighbours, being the owner or owners of such other ancient messuage or house or ancient foundations so being near, adjacent, or adjoining, by and according to the custom of the said city in the same city for all the time aforesaid used and approved, well and lawfully may, might, and has used, at his or their will and pleasure, his or their said other messuage or house, so being near, adjacent, or adjoining, by building to exalt or erect, or of new, upon the said ancient foundations of such other messuage or house, so being near, adjacent, or adjoining, to build or erect a new messuage or house to such height as the said owner or owners shall please, against and opposite to the said lights or windows near or contiguous to such other messuage or house, and by means thereof to obscure and darken such windows or lights, unless there be or hath been *458] *some writing, instrument, or record of an agreement or restriction to the contrary thereof in that behalf: That, before and at the time of the grievances in the declaration alleged, the defendant was seised and possessed of an ancient messuage or house and the foundations of a certain ancient messuage and house in the city of London, near, adjacent, and contiguous and adjoining to the said messuage and warehouse and appurtenances of the plaintiffs, and towards which the said windows in the declaration mentioned looked and fronted; and, being so seised, and there being and having been no writing, instrument, or record of an agreement or restriction to the contrary thereof in that behalf, the defendant, before and at the time of the alleged grievances, according to the said custom, exalted and erected his said ancient messuage or house, and of new upon the said ancient foundations built and erected a new messuage and house, against and opposite to the said windows of the plaintiffs, and thereby a little and to a necessary and unavoidable extent obscured and darkened such windows, and committed the grievances complained of, which are the same as in the said declaration mentioned.

The plaintiffs joined issue on all the pleas, except as to the custom alleged in the sixth plea.

And, for a further replication to the sixth plea, they said, that the access and use of light and air to and from the said messuage and warehouse into and through the said windows, which access and use of light and air was so obstructed, hindered, prevented, and injured by the defendant's acts as aforesaid, had been and was actually enjoyed with the said messuage, buildings, and warehouse, as of right and without interruption, by the respective occupiers of the messuage and warehouse, for and during the full period of twenty years before the said obstruction, hindering, prevention, and injury, and for and during the full *period of twenty years next before the commencement of a suit in Her Majesty's High Court of Chancery com

*459]