Wednesday, September 6, 2017

The Pleadings in Rex. v. Arkwright

The text below is taken from the trial transcript in Rex v. Arkwright. It constitutes the record of the initial pleading stages of the proceedings, that took place in the High Court of Chancery, where the Lord Chancellor exercised his ordinary jurisdiction as a common law judge in scire facias proceedings to annul letters patent. The record of the pleading stages in the proceedings were then delivered to the Court of King's Bench by the Lord Chancellor, with his own hands, so that the issues joined could be brought to trial before a jury.
This text is reproduced from pages 3 to 10 of The Trial of a Cause instituted by Richard Pepper Arden Esq.; His Majesty's Attorney General, by Writ of Scire Facias, to repeal a Patent granted on the Sixteenth of December, 1775 to Mr. Richard Arkwright, for an Invention of certain Instruments and Machines for preparing Silk, Cotton, Flax and Wool for Spinning; before the Honorable Francis Buller, One of the Judges of His Majesty's Court of King's Bench, at Westminster-Hall, On Saturday the 25th of June, 1785. (Hughes and Walsh, London, 1785.)

The Proceedings originated in the Petty-Bag of the Court of Chancery; and were transmitted by the Lord High Chancellor to the Court of King's Bench, to be there tried, and were as follows:
Pleas before our Lord the King at Westminster, of the Term of the Holy Trinity, in the Twenty-fifth Year of the Reign of our Sovereign Lord George the Third, by the Grace of God, of Great Britain, France and Ireland, King, Defender of the Faith, and so forth, and in the Year of our Lord One thousand Seven hundred and Eighty-five.
“Be it remembered, that on Friday the eleventh day of June next after fifteen days of the Holy Trinity, in the term abovesaid, Edward Lord Thurlow, Baron Thurlow, Lord High Chancellor of Great Britain, before our Lord the King at Westminster, with his own proper hands, delivered there in court, a certain record, had before our said Lord the King in his chancery, in these words, that is to say, Pleas before our Lord the King in his chancery at Westminster, in the county of Middlesex, of the term of the Holy Trinity, in the twenty-fifth year of the reign of our Sovereign Lord George the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender of the faith, and so forth, and in the year of our Lord one thousand seven hundred and eighty-five. England to wit, our Lord the King sent to the sheriff of Middlesex his writ closed in these words, to wit; George the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender of the faith, &c. To the sheriff of Middlesex, Greeting, Whereas, we lately, by our letters patent, under our seal of Great Britain, bearing date at Westminster the 16th day of December, in the 16th year of our reign, reciting, That, Whereas Richard Arkwright of Cromford, in our county of Derby, had, by his petition, humbly represented unto us, that he had by much study, application and expence, contrived, invented, and brought to perfection certain instruments, and machines, which he conceived would be of public utility, in preparing silk, cotton, flax, and wool, for spinning; that the said instruments, or machines, were constructed on easy and simple principles, very different from any that had ever yet been contrived, that in regard the petitioner was the first and sole inventor thereof, and that the same had never been practised by any other person or persons whomsoever, to the best of his knowledge and belief, he had humbly prayed us that we would be graciously pleased to grant unto him, his executors, administrators, and assigns, our royal letters patent, under our great seal of Great Britain, for the sole use, benefit, and advantage of his said invention, within that part of our kingdom of Great Britain, called England, our dominion of Wales, and town of Berwick upon Tweed; and also in our colonies and plantations abroad, for the term of fourteen years, according to the statute in that case made and provided. And we being willing to give encouragement to all arts and inventions, that might be for the public good, were graciously pleased to condescend to his request. Know ye therefore, That we of our special grace, certain knowledge, and mere motion, for ourself, our heirs and successors, did give nad grant unto the said Richard Arkwright, his executors, administrators and assigns, our especial licence, full power, sole privilege and authority, that he the said Richard Arkwright, his executors, administrators and assigns, and every one of them, by himself and themselves, or by his and their deputy or deputies, servants or agents, or such others as he the said Richard his executors, administrators, and assigns, should at any time agree with, and no others, from time to time, and at all times thereafter, during the term of years therein expressed, should and lawfully might make, use, exercise, and vend his said invention, within that part of our kingdom of Great Britain, called England, our dominion of Wales, and town of Berwick upon Tweed; and also in our colonies and plantations abroad, in such manner as to him the said Richard Arkwright, his executors, administrators or assigns, or any of them should, in their discretions seem meet. And that he the said Richard Arkwright, his executors, administrators and assigns, should and lawfully might, have and enjoy the whole profit, benefit, commodity and advantage from time to time, coming, growing, accruing, and arising by reason of the said invention, for and during the term of years therein mentioned. To have, hold, exercise and enjoy the said licence, powers, privileges and advantages therein before granted, or mentioned to be granted to the said Richard Arkwright, his executors, administrators and assigns, for and during, and unto the full end and term of fourteen years, from the date of the said letters patent, next and immediately ensuing, and fully to be compleat and ended, according to the statute in such case made and provided; and to the end that he the said Richard Arkwright, his executors, administrators and assigns, and every of them might have and enjoy the full benefit, and the sole use and exercise of the said invention, according to our gracious intention therein before declared. We did by the said letters patent, for us, our heirs and successors, require and strictly command all and every person and persons, bodies politic and corporate, and all other our subjects whatsoever, of what estate, quality, degree, name or condition soever they be within the said part of our kingdom of Great Britain, called England, our dominion of Wales, and town of Berwick upon Tweed, and also in our colonies and plantations abroad aforesaid, that neither they nor any of them at any time during the continuance of the said term of fourteen years, thereby granted, either directly or indirectly, should make, use or put in practice the said invention, or any part of the same so attained unto by the said Richard Arkwright, as aforesaid; nor in any wise counterfeit, imitate, or resemble the same, nor should make or cause to be made any addition thereunto, or substraction from the same, whereby to pretend himself or themselves the inventor or inventors, devisor or devisors thereof, without the licence, consent or agreement of the said Richard Arkwright, his executors, administrators and assigns, in writing, under his or their hands and seals, first had and obtained in that behalf, upon such pains and penalties as could or might be justly inflicted on such offenders for their contempt of that his said Majesty's royal command; And further to be answerable to the said Richard Arkwright, his executors, administrators and assigns, according to law, for his or their damages thereby occasioned. And, moreover, we did by the said letters patent, for us, our heirs and successors, will and command all and singular the justices of the peace, mayors, sheriffs, bailiffs, constables, headboroughs, and all other officers and ministers whatsoever, of us, our heirs and successors for the time being, that they, or any of them did not, nor should at any time thereafter, during the said term thereby granted, in any wise molest, trouble or hinder the said Richard Arkwright, his executors, administrators or assigns, or any of them, or his or their deputies, servants or agents, in or about the due and lawful use or exercise of the aforesaid invention, or any thing relating thereto. Provided always, and the said letters patent were, and should be upon this condition, that if at any time during the said term thereby granted, it should be made to appear to us, our heirs or successors, or any six or more of our, or their privy council, that, that our grant was contrary to law, and prejudicial or inconvenient to our subjects in general, or that the said invention was not a new invention as to the public use and exercise thereof, in that said part of our kingdom of Great Britain, called England, our dominion of Wales, and town of Berwick upon Tweed, and also in our colonies and plantations abroad aforesaid; or not invented and found out by the said Richard as aforesaid. Then upon signification, or declaration thereof, to be made by us, our heirs or successors, under our or their signet, or privy seal, or by the lords and others of our or their privy council, or any six or more of them, under their hands, the said letters patent should forthwith cease, determine, and be utterly void to all intents and purposes, any thing therein before contained to the contrary thereof in any wise notwithstanding. Provided also, that the said letters patent, or any thing therein contained, should not extend or be construed to extend, to give priviledge unto the said Richard, his executors, administrators or assigns, or any of them, to use or imitate any invention or work whatsoever, which had theretofore been found out and invented by any other of our subjects whatsoever, and publickly used or exercised in that said part of our kingdom of Great Britain called England, our dominion of Wales, our town of Berwick upon Tweed, or in our colonies and plantations abroad aforesaid, unto whom like letters patent or privileges had been already granted for the sole use, exercise and benefit thereof, it being our will and pleasure that the said Richard Arkwright, his executors, administrators and assigns, and all and every other person and persons to whom like letters patent or privileges had been already granted as aforesaid, should distinctly use and practice their several invention by them invented and found out, according to the true intent and meaning of the same respective letters patent, and of the said letters patent to the said Richard Arkwright. Provided likewise nevertheless, and the said letters patent to the said Richard Arkwright were upon this express condition, that if the said Richard Arkwright, his executors or administrators or any person or persons which should or might at any time or times thereafter, during the continuance of that grant, have or claim any right, title or interest in law or equity, or in or to the power, privilege and authority of the sole use and benefit of the said invention thereby granted, should make any transfer or assignment, or any pretended transfer or assignment of the said liberty and privilege, or any share or shares of the benefit or profit thereof, or should declare any trust thereof, to or for any number of persons exceeding the number of five; or should open or cause to be opened, any book or books for public subscriptions to be made by any number of persons exceeding the number of five, in order to the raising of any sum or sums of money, under pretence of carrying on the said liberty or privilege thereby granted, or should by him or themselves, or his or their agents or servants receive any sum or sums of money whatsoever, of any number of persons exceeding in the whole the number of five, for such or the like intents and purposes, or should presume to act as a corporate body, or should divide the benefit of the said letters patent to the said Richard Arkwright, or the liberty and privileges thereby by us granted into any number of shares exceeding the number of five; or should commit or do, or procure to be committed or done any act, matter, or thing whatsoever, during such time as such person or persons should have any right or title, either in law or equity, in or to the said premises, which would be contrary to the true intent and meaning of a certain act of parliament, made in the sixth year of the reign of our late royal great grandfather, king George the First, Intituled, “An act for the better securing certain powers and privileges intended to be granted by his said Majesty, by two charters for assurance of ships and merchandizes at sea, and for lending money upon bottomry, and for restraining several extravagant and unwarrantable practices therein mentioned:” Or in case the said power, privilege or authority, should at any time thereafter become vested in or in trust for more than the number of five persons or their representatives at any one time (reckoning executors or administrators) as and for the single person whom they might represent as to such interest as they were or should be entitled to, in right of such their testator or intestate, that then and in any of the said cases, the said letters patent to the said Richard Arkwright, and all liberties and advantages whatsoever thereby granted, should utterly cease, determine and become void, any thing wherein before contained to the contrary thereof in any wise notwithstanding. Provided also that if the said Richard Arkwright should not particularly describe or ascertain the nature of his said invention, and in what manner the same was to be performed, by an instrument in writing under his hand and seal, and cause the same to be inrolled in our High Court of Chancery, within four calendar months next and immediately after the date of those our letters patent, that then these our letters patent, and all liberties and advantages whatsoever thereby granted, should utterly cease, determine, and become void, any thing therein before contained to the contrary thereof in any wise notwithstanding. And lastly, We did by those letters patent, for us, our heirs and successors, grant unto the said Richard Arkwright, his executors, administrators and assigns, that those our letters patent, or the inrollement or exemplification thereof should in and by all things be good, firm, valid, sufficient and effectual in the law, according to the true intent and meaning thereof, and should be taken, construed, and adjudged in the most favourable and beneficial sense, for the best advantage of the said Richard Arkwright, his executors, administrators and assigns, as well in all our courts of record as elsewhere, and by all and singular the officers and ministers whatsoever of us, our heirs and successors whatsoever, in that part of our said kingdom of Great Britain called England, our dominion of Wales, and town of Berwick upon Tweed, and also in our colonies and plantations abroad aforesaid, and amongst all and every the subjects of us, our heirs and successors whatsoever and wheresoever, notwithstanding the not full and certain describing the nature and quality of the said invention, or of the materials thereto conducing and belonging, as by the said letters patent in our chancery inrolled is manifest, and more fully and at large appears. And whereas we are given to understand that our said grant is prejudicial and inconvenient to our subjects in general, and that the said invention, at the time of granting our said letters patent, was not a new invention, as to the public use and exercise thereof within that part of Great Britain called England, and that the same was not invented and found out by the said Richard Arkwright. And we are also given to understand, that although the said Richard Arkwright did cause a certain instrument in writing under his hand and seal, together with a plan thereof, (a copy of which is hereunto annexed) to be inrolled in our High Court of Chancery within four calendar months next and immediately after the date of our said letters patent, pretending particularly to describe and ascertain the nature his said invention, and in what manner the same was to be performed, in the words following, that is to say, “To all to whom these presents shall come: I Richard Arkwright, of Cromford in the county of Derby, send Greeting; Whereas I the said Richard Arkwright, did, by my petition humbly represent to his present most excellent Majesty king George the Third, that I had by much study, application and expence, contrived, invented, and brought to perfection certain instruments or machines, which would be of public utility in preparing silk, cotton, flax, and wool for spinning, and constructed on easy and simple principles, very different from any that had ever been contrived; that in regard I was the first and sole inventor thereof, and that the same had never been practised by any other person or persons whomsoever, to the best of my knowledge and belief, I humbly prayed his said Majesty to grant unto me, my executors, administrators and assigns, his royal letters patent under his Great Seal of Great Britain, for the sole use, benefit and advantage of my said invention within that part of his said Majesty's kingdom of Great Britain called England, his dominion of Wales, town of Berwick upon Tweed, and also in his colonies and plantations abroad, for the term of fourteen years, according to the statute in that case made and provided; his said Majesty being willing to give encouragement to all arts and inventions that might be for the public good, was graciously pleased to condescend to my request; and therefore, by his royal letters patent bearing date at Westminster the sixteenth day of December, in the sixteenth year of his reign, of his especial grace, certain knowledge, and mere motion, did give and grant unto me the said Richard Arkwright, my executors, administrators and assigns, and every of us, by myself or themselves, or by mine and our deputy or deputies, servants or agents, or such others as I the said Richard Arkwright, my executors, administrators or assigns should at any time agree with, and no others, from time to time and at all times thereafter during the term of years therein expressed, should and lawfully might make, use, exercise and vend my said invention within that said part of his Majesty's said kingdom of Great Britain called England, his dominion of Wales, and town of Berwick upon Tweed, and also in his colonies and plantations abroad, in such manner as to me the said Richard Arkwright, my executors, administrators and assigns, or any of us, should in our discretion seem meet; And that I the said Richard Arkwright, my executors, administrators and assigns, should and lawfully might have and enjoy the whole profit, benefit, commodity, and advantage from time to time coming, growing, accruing and arising by reason of the said invention, for and during the term of years therein mentioned, to have, hold, exercise and enjoy the said license, powers, privileges and advantages therein before granted, or mentioned to be granted unto me the said Richard Arkwright, my executors, administrators and assigns for and during and unto the full end and term of 14 years from the date of the said presents next and immediately ensuing, and fully to be compleat and ended, according to the statute in such case made and provided: In which said letters patent is contained a proviso, that if the said Richard Arkwright should not particularly describe and ascertain the nature of my said invention, and in what manner the same is to be performed by an instrument in writing, under by hand and seal, and cause the same to be inrolled in his said Majesty's High Court of Chancery within four calendar months next, and immediately after the date of the said letters patent, that then the said letters patent and all liberties and advantages whatsoever thereby granted, should utterly cease, determine and become void, any thing therein before contained to the contrary thereof in any wise notwithstanding; as in and by the said letters patent, relation being thereunto had may more fully and at large appear. Now, know ye, That I, the said Richard Arkwright, in compliance with the said proviso, do hereby describe and ascertain the nature of my said invention, and declare that the plan thereof drawn in the margin of these presents is composed of the following particulars, (that is to say) No. 1. a beater or breaker of seeds, hulks &c. and a finer of the flax, hemp and other articles which are to be prepared for dressing, in which (a,) is a wheel with teeth, which by acting upon a lever, raises the hammer (C,) the lever being moveable upon the center (d).—No. 2. an iron frame with teeth at (a,) working against a lower frame with like teeth at (b,) this lower frame is firmly connected to a wooden frame by means of the screws (c, c,) the upper teeth are made to act against the lower, by means of the joints (d,d,d,d)—No. 3. is a piece of cloth with wool, flax, hemp, or any other such materials spread thereon, as at (a.)—No. 4. is a crank and a frame of iron with teeth at (a,) being moveable at the joints (b,b,b,b,) by means of a crank, and by a cord turning the pulley or wheel (c.) This motion of the teeth (a,) works them backwards and forwards upon the cylinder No. 5. and dischargeth the cotton, wool, &c. from it at (d.)— from it at (d.)—No. 5. is the last mentioned cylinder, which hath fillet cards; behind this cylinder No. 3. delivers its contents upon another cylinder—No. 6. consists of rollers fixed to a wooden frame, the contents of No. 5. being brought to it at (a,) and going through at (b,) produceth it a proper size (f,)—(c,c,) are brushes for cleaning the machine.—No. 7. a cylindrical box for twisting the contents of No. 6. at (b,)—(a,a,) are two rollers, one moving the other, between which the contents of No. 6. passeth into the cylinder (b)—(c,) is a dead pulley fixed to the frame;—(d,) a cord which passing from the pulley (c,) moves the rollers (a,a)—(F,) a wheel, the movement of which is brought from (F,) to No. 10. and is fixed to No. 6.—No. 8. a machine for twisting the contents of No. 6. in which (d, d,) is a frame of iron; (b,) a roller on which a bobbin (c,) is fixed, this is turned the same as No. 7. that is, by a dead pulley or wheel, fixed to a wooden frame at (g)—No. 9. a spindle and flyer being fixed to No. 6. for twisting the contents from (b,) in No. 6—(d,) is a pulley under the bobbin, which hath a communication by a band to No. 10. at (d,d,) it being a conical or regulating wheel which moves the bobbin quicker or slower as required. No. 10. a spindle, which being fixed to No. 6 at (a,) worketh No. 7, No. 8 or No. 9 at (F,F,F,) by the pulley (F,c),—(d,) a regulator for No. 9.—(b,) a socket, having a bolt going through, (d,d,) and (F,c,) to (G,) stops or sets the whole going by means of a catch (a,) for the pulley (G,G,) being loose upon the spindle, (o,) a lever, moveable about (k,) raiseth or falleth the bold (h). In witness whereof, I the said Richard Arkwright have hereunto set my hand and seal the tenth day of April, in the sixteenth year of the reign of his said most excellent Majesty George the Third, by the grace of God, of Great Britain, France, and Ireland, King, defender of the faith, &c. and in the year of our Lord one thousand seven hundred and seventy six, Richard Arkwright (L.S ) Sealed and delivered by the above-named Richard Arkwright (being first duly stamped) in the presence of John Harker, Jss. D Crofts, clerk to Mr. Evans, in Nottingham. Yet that the said Richard Arkwright hath not, in and by the said instrument in writing, so by him inrolled in our High Court of Chancery, or by any other instrument in writing, under his hand and seal, inrolled in our High Court of Chancery, particularly described and ascertained the nature of his said invention, and in what manner the same is to be performed; but hath wholly neglected so to do, contrary to the form and effect of the same letters patent; by means of which premises the said letters patent, so as aforesaid granted to the said Richard Arkwright, are and ought to be void and of no force or effect in law. And we being willing that what is just should be done in the premises, command you, that by good and lawful men of your Bailiwick you give notice to the said Richard Arkwright, that he be before us in our Chancery, in fifteen days from the day of Easter, wheresoever we shall then be in England, to shew if he hath, or knows any thing to say for himself, why the said letters patent so as aforesaid granted to the said Richard Arkwright, and the inrollment of the same, for the reasons aforesaid ought not to be cancelled, vacated, and disallowed, and those letters patent restored into our said chancery, there to be cancelled; and further to do and receive those things which our said chancery shall consider in this behalf, and have there the names of those by whom you shall give him notice, and this writ, Witness ourself at Westminster, the twelfth day of February, in the twenty-fifth year of our reign.”
“And now at this day, that is to say, on the morrow of the Holy Trinity in this same term, to which day the said Richard Arkwright had leave to imparle to the said writ, and then to answer the same before our said lord the King in his Chancery at Westminster, comes the said Richard Arkwright, by William Mitford, Esquire, his attorney, and says, That the said letters patent, so as aforesaid granted to him the said Richard Arkwright, and the inrolment of the same, by reason of any thing in the said writ of Scire Facias alledged, ought not to be cancelled, vacated, and disallowed, and the said letters pateht restored into his said Majesty's Chancery, there to be cancelled; because he says, that the said grant of our said lord the King is not prejudicial and inconvenient to the subjects of our said lord the King, in general, as by the said writ of Scire Facias is supposed, and of this the said Richard Arkwright puts himself upon the country, &c. And Richard Pepper Arden, Esquire, attorney-general of our lord the King, who prosecutes for our said lord the King in this behalf, being present here in Court in his own proper person, doth so likewise: And the said Richard Arkwright further says, that the said invention, at the time of the granting of the said letters patent, was a new invention as to the public use and exercise thereof within that part of Great Britain called England, and of this he also puts himself upon the country, &c. and the said Richard Pepper Arden, who prosecutes as aforesaid, doth so likewise. And the said Richard Arkwright further says, that the said invention was invented and found out by him the said Richard Arkwright, and of this he also puts himself upon the country, &c. and the said Richard Pepper Arden, who prosecutes as aforesaid, doth so likewise: And the said Richard Arkwright further says, that he hath, in and by the said instrument in writing, so by him inrolled in the said High Court of Chancery of our said lord the King, particularly described and ascertained the nature of his said invention, and in what manner the same is to be performed, and of this he also puts himself upon the country &c. And the said Richard Pepper Arden, who prosecutes as aforesaid, doth so likewise: Therefore to try the said several issues above joined, the sheriff of Middlesex is commanded that he cause to come before our lord the King, from the day of the Holy Trinity in three weeks now next, wheresoever he shall then be in England, twelve good and lawful men of his bailiwick, each of whom shall have ten pounds by the year at the least of lands, tenements, or rents, by whom the truth of the matter may the better be known, and who are in no wise of kindred to the said Richard Arkwright, to take cognizance upon their oath of the truth of and concerning the premises, &c. because as well the said Richard Arkwright, as the said Richard Pepper Arden who prosecutes as aforesaid, have put themselves upon the jury, &c. The same day is given to the said Richard Arkwright there, &c.” 

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.