PATENTS. INFRINGING ing this bill, to wit, on, &c. and within that part of the united kingdom of Great Britain and Ireland called England, to wit, at, &c. aforesaid, unlawfully and unjustly, without the leave or licence, and against the will of the said A. B. and C. D. or either of them, made and sold divers, to wit, in imitation of the said invention of the said A. B. as aforesaid, [in breach of the said letters patent, and against the privilege so granted to the said A. B. and his assigns as aforesaid, whereby the said A. B. and C. D. have been and are greatly injured and deprived of a great part of the profits and advantages which they might and otherwise would have derived and acquired from the said invention, to wit, at, &c. aforesaid (9).] Second count, And the said A. B. and C. D. further say, that the said [A. B. so for making being such inventor, and the said letters patent having been so made imitations of the invention. as aforesaid, and the said instrument in writing having been so made and enrolled as aforesaid, and the said indenture having been so made as aforesaid, and the said invention having been so made, used, exercised, and vended by the said A. B. and C. D. as aforesaid, he the said (r)] E. F. well knowing the premises, but further contriving and. [369] intending as aforesaid, after the making of the said letters patent and of the said indenture, and within the said term of years in the said letters patent mentioned, to wit, on, &c. aforesaid, and on divers other days and times between that day and the day of exhibiting this bill in England aforesaid, to wit, at, &c. aforesaid, unlawfully and unjustly, and without the leave or licence, and against the will of the said A. B. and C. D. made divers, to wit, — † on the said improved plan, and in imitation of the said invention of the said A. B. in breach of the said letters patent, and against the privilege so granted to the said A. B. and his assigns as aforesaid. Whereby the said A. B. and C. D. have been and are greatly injured, and have lost and been deprived of divers great gains and profits which they might, and otherwise would have derived and acquired from the said invention, to wit, at, &c. aforesaid. Other counts ($). The other counts vary from the second only in the insertion of the following words, instead of the word in italics :-3d count," used and (9) Sometimes, instead of the averment within the brackets, the precedent runs thus: " and thereby hindered and prevented the said A. B. in the sole use, exercise, and enjoyment thereof, to wit, at, &c. afore said." (r) The second and subsequent counts generally commence as above, with this summary of the allegation in the first count, as between the brackets, but that statement may be omitted. (8) In a declaration settled by a very eminent pleader, the second count was similar to the above as far as the t, except that it omitted the words in that count within the brackets. At the † was inserted as follows, "with certain improvements put in practice.". and did use and put in practice." PATENTS. -4th count," did counterfeit the said invention, INFRINGING -5th count, "did imitate the said invention, and did use and put in practice."- -6th count, "did imitate in part the said invention, and did use and put in practice." Some of these counts may be omitted or others inserted, accord ing to the facts of each particular case. day of count in trover, for cattle, bills and Deeds (x). [* 370] *[Commencement as ante, 287.]-For that whereas the said A. B. Common heretofore, to wit, on, &c. at, &c. was lawfully possessed, as of his own property (u), of certain cattle, deeds, bonds, bills of exchange, promis- deeds, bonds, sory notes, bank notes, securities for money, goods, and chattels, to notes, bank wit, ten horses, ten mares, ten geldings, ten bulls, ten cows, &c. [stat- notes, money, ing the different description of the cattle] and a certain indenture of and goods (). release, bearing date the purporting to be made Cattle. between E. F. of the one part, and G. H. of the other part, and purporting to be a conveyance from the said E. F. to the said G. H. of certain tenements therein mentioned, and a certain other deed, purporting to be a mortgage of certain tenements by the said E. F. to the said G. H. and of a certain indenture of lease (y), bearing date, &c. and made between one J. K, of the first part, and one L. M. of the other part, by which said last-mentioned indenture the said J. K. demised to the said L. M. certain tenements therein mentioned, for a certain term therein also mentioned, and yet unexpired, and a certain writing obligatory, commonly called a bond, sealed with the scal of Bond. one N. O. whereby the said N. O. became bound to the said A. B in the penal sum of L.100, and then and still being in full force, [and a Bills. certain bill of exchange in writing, made and drawn by one E. F. upon, and accepted by the said C. D bearing date the day of -, whereby the said E. F. requested the said C. D. two months after the date thereof, to pay to the said A. B. or his order, the sum of on the construction thereof respectively, which then and there intended to imitate and resemble, and did imitate and resemble the said improvement so invented by the said A. B. as aforesaid, whereby, &c." Conclusion as in the above second count. The third count stated, that the defendant "did counterfeit and resemble." The fourth count," with part of, &c." The fifth count, "did imitate in part, and did make a certain addition to the said invention, whereby to pretend himself the inventor and deviser thereof, and did then and there put in practice the said imitation, in part with such additions as aforesaid, whereby, &c.” (t) As to the action of trover in general, ante, vol. 1. Ind. Trover. 2 Saund. 47. n. Bac. Ab. tit. Trover. C. D. Action on the Case, Trover; and ante, Detinue, 284, 5, 6. (u) As to this allegation, 7 T. R. 394. 399. 2 Saund. 47. i. k. In Selwyn. N. P. 1st edit. 1157. note 10. it is said that the omission is aided by verdict, but not by judgment by default. (x) It is not necessary to state the date of the deed, 1 Wils. 116. Bac. Ab. Trover, F. 1. B. N. P. 37. Ld. Raym. 276. Silk. 654. (y) See the declaration in 3 Woodd. Vin. L. 106. n. y. [ ⚫ 371 ] Notes. Bank notes. Money (z). Goods. The loss. IN TROVEB. L.-] and a certain other bill of exchange, accepted by the said C. D. for the payment by him the said C. D. of a certain sum of money, to wit, the sum of L., at a certain day therein mentioned, *and now past; and a certain promissory note, in writing, made and drawn. by one E. F. whereby he the said E. F. promised to pay to the said A. B. or his order, a certain sum of money, to wit, the sum of L.———, at a certain time herein mentioned, and now past; and divers, to wit, five notes of the Governor and Company of the Bank of England, commonly called a bank note, for the payment of the sum of L.5 each; and divers, to wit, twenty pieces of the current coin of this realm, called guineas, (or, "half-guineas, seven-shilling pieces, crowns, half-crowns, shillings, &c.); and divers, to wit, twenty tables, twenty chairs, &c. (specifying the goods, and avoiding any repetition of the same articles, and describing each as generally as possible, omitting the quality, as "mahogany, silver, &c.”—See Tidd's Prac. 3d edit. 560.—Barnes. 335.) of great value, to wit, of the value of L.—, of lawful money of Great Britain. And being so possessed thereof, he, the said A. B. afterwards, to wit, on the day and year first above-mentioned, at, &c. aforesaid, casually lost the said cattle, deeds, bonds, bills of exchange, promissory notes, bank notes, securities for money, and money, The finding. goods, and chattels, out of his possession; and the same afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, came to the possession of the said C. D. by finding. Yet the said C. D. well knowing the said cattle, deeds, bonds, bills of exchange, promissory notes, bank notes, securities for money, money, goods and chattels to be the property of the said A. B. and of right to belong and appertain to him, but contriving, and fraudulently intending, craftily and subtly to deceive and defraud the said A. B. in this behalf, hath not as yet delivered the said cattle, deeds, bonds, bills of exchange, promissory notes, bank notes, securities for money, money, goods, and chattels, or any or either of them, or any part thereof, to the said A. B. although often requested [372] *so to do, and hath hitherto wholly refused so to do, and afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, converted and disposed of the said cattle, deeds, bonds, bills of exchange, promissory notes, bank notes, securities for money, money, goods, and chattels, to his own use. To the damage, &c. [Conclude as ante, 287.] The conversion. By assignees [Commencement as ante, 90.]—For that whereas the said E. F. beof a bankrupt. fore he became a bankrupt, to wit, on, &c. at, &c. was lawfully poson bankrupt's sessed of, &c. [state the property as in the last precedent] of great First count, possession. (z) This has been the usual description. Money, in an indictment, is now described thus," with force and arms, at, &c. eight pieces of moneys, numbered, the current coin of this realm, called shillings, of the mo- 1 value, to wit, of the value of L.- " and being so possessed thereof, IN TROVER he the said E F. afterwards, and before he became a bankrupt, to wit, on, &c. aforesaid, at, &c. aforesaid, casually lost the said goods and chattels out of his possession, and the same afterwards, and before the said E. F. became a bankrupt, to wit, on, &c. aforesaid, there came to the possession of the said C. D. by finding. Yet the said C. D. well knowing the said goods and chattels to be the property of the said E. F. before he became a bankrupt, and of right to belong and appertain to the said A. B. as assignee as aforesaid, after the said bankruptcy; but contriving and fraudulently intending to injure the said E. F. before he became a bankrupt, and the said A. B. as assignee as aforesaid since the said bankruptcy in this behalf, hath not, although often requested so to do, as yet delivered to them, or either of them, the said goods and chattels, or any or either of them, or any part thereof, but hath hitherto wholly neglected and refused so to do, and afterwards, and since the said bankruptcy, to wit, on, &c. converted, and disposed thereof to his own use, to wit, at, &c. aforesaid. [373] And whereas also the said A. B. as such assignee as aforesaid, after Second count the said E. F. became a bankrupt, to wit, on, &c. at, &c. aforesaid, on the assig nee's posseswas lawfully possessed of certain other goods and chattels, to wit, &c. sion. [describe the property as ante, 370, 1.] of great value, to wit, of the value of L.- -, as of the property of the said A. B. as such assignee as aforesaid, and being so possessed thereof, he the said A. B. afterwards, to wit, on, &c. last aforesaid, *at, &c. aforesaid, casually lost the said last-mentioned goods and chattels out of his possession, and the same afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, came to the possession of the said C. D. by finding. Yet the said C. D. well knowing the said last-mentioned goods and chattels to be the property of the said A. B. and of right to belong and appertain to him as such assignee as aforesaid, but contriving, and fraudulently intending to injure the said A. B. as such assignee as aforesaid in this behalf, hath not, although often requested so to do, delivered the said goods and chattels, or any or either of them, or any part thereof, to the said A. B. but hath hitherto wholly neglected and refused so to do, and afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, converted and disposed thereof to his own use. To the damage of the said A. B. as such assignee as aforesaid of L.-, and therefore he brings his suit, &c. [Commencement as ante, 95.]-For that whereas the said E. F. in his lifetime, to wit, on, &c. at, &c. was lawfully possessed of divers goods and chattels, to wit, &c. [describe the property as ante, 370, 1.] (a) As to the counts in trover, on the possession of the testator, and of the plaintiff as executor, and his lia bility to costs on the latter count, see By an executor for a trò ver and con version in the lifetime of the testator (a). [374] IN TROVER. of great value, to wit, of the value of L., of lawful, &c. as of his own property, and being so possessed thereof, he the said E. F. in his lifetime, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, casually lost the said goods and chattels out of his possession, and the same afterwards, and in the lifetime of the said E. F. to wit, on, &c. aforesaid, at, &c. aforesaid, came to possession of the said C. D. by finding. Yet the said C. D. well knowing the said goods and chattels to be the property of the said E. F. in his lifetime, and of right to belong and appertain to him the said E. F. *in his lifetime, and to the said A. B. as executor as aforesaid, after the decease of the said E. F. but contriving, and fraudulently intending craftily and subtly to deceive and defraud the said E. F. in his lifetime, and the said A. B. as executor as aforesaid, since the death of the said E. F. in this behalf, did not deliver the said goods and chattels, or any of them, or any part thereof, to the said E. F. in his lifetime, nor hath he as yet delivered the same, or any of them, or any part thereof, to the said A. B. executor as aforesaid, since the death of the said E. F. (although often requested so to dof) and he the said C. D. afterwards, and in the lifetime of the said E. F. to wit, on, &c. aforesaid, at, &c. aforesaid, converted and disposed of the said goods and chattels to his own use. Second count [When the trover was in the lifetime of the testator, but the converon a trover in sion after his death, the count runs as above to the statement of the conlifetime of testator, and con- version, at the †, and then as follows :]" And the said C. D. afterwards and after the death of the said E. F. to wit, on, &c. at, &c. aforehis death (6). said, converted and disposed of the said goods and chattels to his own version after Third count, for trover, and conversion use." And whereas also the said A. B. as executor as aforesaid, afterwards, and after the death of the said E. F. to wit, on, &c. at, &c, was after testator's lawfully possessed of divers other goods and chattels, to wit, &c. [dedeath (c). scribe the property as ante, 370, 1.] of great value, to wit, of the value of L.—, of lawful, &c. as of his property as such executor as aforesaid, and being so possessed thereof, he the said A. B. afterwards, to 277. 2 B. and P. 253. 3 B. and P. 115. (b) This count, though sometimes (c) The property of the goods draws to it a possession in law, there. fore an executor may declare on his own possession “as executor,” though in fact he never has had possession ; 2 Saund. 47. k. 10 East. 293. 2 Taunt. 116. See the note, ante, 373. n. a. ; as to this count in general, 2 Saund. 47. k. The executor must, in support of this count upon the trial, prove him-. self to be executor, by producing the probate, id. ibid. |