1819. The KING against TREVENEN. They held, therefore, that Trevethan was not in this case a good relator. Then as to Thomas, they thought that the circumstances stated in the affidavits were so strong as to induce them at all events not to make the rule absolute, unless both he and Sir C. Hawkins would make further affidavits negativing in express terms any collusion between them on that point; for unless Thomas was the real prosecutor of the rule, the case of Rex v. Cudlipp was an authority to shew that it must be discharged. Rule accordingly enlarged (a), to give time to make these further affidavits. (a) Rex v. Hodge. Quo warranto against the defendant, as one of the chief burgesses of Penrhyn. Objection, that there was not a sufficient relator. It appeared that the relator was an inhabitant of the borough; and that by the charter the government of the town, and of all the people therein, was vested in the mayor and chief burgesses. The Court thought that this clause of the charter gave a sufficient interest to the relator; and made the rule absolute. 1819. 66 The KING against WHEELER. SCIRE facias to repeal a patent obtained by the defendant for a new or improved method of drying and preparing malt.” At the trial before Abbott C. J. at the sittings after last Michaelmas term, a verdict was given for the crown. The specification was as follows: My invention consists in the heating of malt to 400° and upwards of Fahrenheit's thermometer, according to a process or processes hereafter described, and in so heating it that the greater part of the saccharine and amylaceous principles of the grain become changed into a substance resembling gum and extractive matter, of a deep brown colour, readily soluble in hot or cold water." It then proceeded to state several modes of performing this operation; one of which was by a cylindrical iron machine like a coffee-roaster, which, by its revolution, prevented the malt, when heated, both from adhering to the sides, and from being carbonized by the action of the fire. Another apparatus was a revolving hollow iron cylinder with a screw-like channel in it, along which the malt passed, and so was exposed Patent for ❝ a new or im proved method was stated, that the invention consisted in ex posing malt previously high degree of heat: but it made to a very did not describe any new ma chine invented for that pur pose; nor the state, whether moist or dry, in which the malt was ori ginally to be taken for the purpose of being subjected to the process; nor the utmost degree of heat which might be safely used; nor the length employed; nor of time to be the exact cri terion by which it might be known when the process was accomplished: Held that the patent was void; inasmuch as, 1st, the specification was not sufficiently precise; and as, 2dly, the patent appeared to be for a different thing from that mentioned in the specification. Held, also, that as the word malt was here not to be taken in its usual sense, viz. of an article used in the brewing, but only in the colouring of beer, that in the patent here it was necessary to have stated the purpose to which the prepared malt was to be applied, and to have said that it was obtained for a new method of drying and preparing malt to be used in the colouring of beer. Quare, Whether a patent can be good if obtained for a mere process to be carried on by known implements or elements acting upon known substances; inasmuch as the word "manufacture," in 21 Jac. c. 3., seems rather to be confined either to some new article or to some new instrument, or part of an instrument, to be used in making an article previously well known: And held, that at all events no merely philosophical or abstract principle can answer to that word, or be the subject of a patent. 1819. The KING against WHEELER. in continual motion to the action of heat; and it then added, that the process might also be performed in kilns made nearly of the ordinary construction, under proper management, and by various other contrivances. The time necessary to produce the effect, and the proper degree of heat to which the malt was to be exposed, were also stated to be variable, and to be capable of being easily learnt by experience, the colour of the internal part of the prepared grain affording the best criterion. Abbott C. J., at the trial, thought that the title of the patent shewed that it was obtained for a different thing than that stated in the specification: the patent being for preparing malt, which must mean making it from barley, whereas the specification appeared to be for drying malt already made. He also thought that it was defective in not stating the purposes to which the article, when prepared, was to be applied; and that the specification did not state the process with sufficient precision, so as to enable other persons afterwards to use the invention. Harrison, on the fourth day of this term, moved for a new trial, on the ground that these objections were not sufficient to destroy the patent. Malt is completed by the process of soaking the barley, and thereby producing germination, and the operation of drying is only necessary for the purpose of keeping it. The patent, therefore, which states that it is for a new method of drying and preparing malt, obviously means that it is to be taken in the state of malt before it is to be thus dried or prepared; and the invention here, which is of great value to the public at large, only consists in giving particular qualities to malt already existing. Besides, the order of the words words "drying and preparing" also shews that the latter Cur, adv. vult. ABBOTT C. J. now delivered the opinion of the Court. We have taken time to consider of this case, not by reason of any doubt entertained upon the motion, but in order that the defendant, whose rights will probably be concluded by our judgment, might not be af fected 1819. The KING against WHEELER. 1819. The KING against WHEELER. fected by any other than a deliberate and considered opinion. This was a scire facias to repeal a patent, granted to the defendant, for what is called in the patent, "a new or improved method of drying and preparing malt." The patent is granted under several conditions and provisoes, as usual in such cases, and amongst others a proviso, that if the defendant shall not particularly describe and ascertain the nature of his invention, and in what manner the same is to be performed, by an instrument in writing under his hand and seal, to be enrolled in the High Court of Chancery within six calendar months, then the patent shall be void. Several issues were taken upon the record of the scire facias, one of which was upon the fact of the enrolment of such a writing (or specification, as it is commonly called) as is required by the proviso. The cause was tried before me at the sittings after the last term, when, upon reading the patent and specification, (for a specification had been in fact enrolled,) it appeared to me that the proviso had not been complied with; and this question arising upon written instruments, and being, therefore, properly a question of law, I directed the jury to find a verdict for the crown upon that issue, which was accordingly done. In the present term a motion was made for a rule to shew cause why the verdict should not be set aside, and a new trial granted; and upon this motion the defendant has a right to assume, for the present, that the novelty and utility of his invention might have been established by proof; and the question before the Court is precisely the same as that which I determined at Nisi Prius, and depends entirely upon the construction and effect of the written instruments, viz. the patent and specification. And |