is not new over that previously employed in making the knob, but this of itself can never be made the subject of a patent. No one will pretend that a machine made in whole or in part of materials better adapted to the purpose for which it is used, than the materials of which the old one is constructed, and for that reason better and cheaper, can be distinguished from the old one, or in the sense of the patent law, can entitle the manufacturer to a patent."

Several cases are suggested by Mr. Curtis in which the patent could be supported, when something more than a mere change of material was involved, pp. 67 to 78.

Penn v. Bibby, already cited, supported the patent on distinct grounds beyond the mere change of material.

The language quoted in our case of Hunter v. Carrick, p. 455, from Bump 56, is applicable here: "Mere change of form is not patentable because it involves no invention. It is simply the device of a mechanic. A structural change of form and proportion-although it improves the operation without changing the mode of operation and produces a better result, but of the same kind, is not patentable. If the change in form and location involves a functional difference beyond mere mechanical perfection and adjustment, and produces an improved product it is patentable."

A case cited for the appellants, Heath v. Unwin, 13 M. & W. 591, appears to me, at least in one aspect, rather against their contention. There, the plaintiff claims as his invention, "The use of carburet of manganese in any process for the conversion of iron into cast-steel."

Parke, B., says: "The specification is expressly for the employment of carburet of manganese, and the mode of using it is by putting a certain quantity by weight of that substance in an unmelted state into the crucible. *** It is clear that the defendant has not directly infringed the plaintiff's patent, for he has never used that substance in the mode described in the specifications." The defendant had never used the carburet of manganese by putting any of it into the crucible. He placed the black oxide and carbonaceous matter in, and the two substances formed during the process of conversion and before actual union. with the steel, carburet of manganese in a state of fusion.

He never meant to imitate plaintiff's process. That his process formed the carburet was clearly not an ascertained or well known fact.

Parke, B., says: "Then comes the question whether he has indirectly infringed the patent by imitating and using the same process, substitutionally to making a colorable variation. Now there is no doubt, we think, if the defendant substitutes for a part of the plaintiffs' invention some well known equivalent, whether chemical or mechanical, he would probably be considered as only making a colorable variation, but he has not done so." If the appellants here had been sued by Miller for infringing his patent of 1866 for the continuous spring, he would argue that the use of wire instead of rubber was a colorable imitation, using one well known mechanical equivalent for another. The appellants have to insist that a substitution of the wire for the rubber was the main idea of their patent (as in paragraph 10 of their reasons of appeal.)

Miller would urge that the idea of continuity of the spring was clearly taken from him, and that the metal coil was so well known as adaptable to this purpose that it had been long used in short lengths. That the Florsheim patent presented really nothing beyond uniting these separate pieces of spring at the ends, or in other words not cutting them off short. It appears to me that Miller's claim against the appellants for infringment would be at least as strong as their present claim against defendants. No new material is invented, no hitherto latent or unknown property of elasticity is developed, no new adjustment of material is exhibited. The alleged new material had long been used in the same manufacture. The alleged invention of continuity had been also long anticipated. I am unable to believe that the law sanctions the granting of monopoly for this. I believe the result is a cheaper and better article, just as the plaintiff in the oven case produced by his shrewdness the best oven, but I think the court below was right in its dismissal of the plaintiff's bill.

I do not propose to discuss the minor points as to elastic or inelastic margins, gussets, grouping, etc., etc.

Nor have I discussed the objection as to the first of plaintiff's patents in the United States being over twelve months issued before the Canadian patent, each (p. 73), as Florsheim states having or shewing the continuous spring. I think the appeal must be dismissed.

PATTERSON, J. A.-I agree that there is no patentable invention. The invention claimed is simply the use of a continuous spring in place of springs cut into lengths. That was the principle of the Miller patent. It is true that in that patent the continuous spring was described as a rubber spring, which may perhaps prevent the use of a continuous spring of other material being an infringement of that patent, but the invention of the continuous spring is nevertheless of earlier date than the plaintiff's patent. The plaintiffs merely apply the continuous principle, with a kind of spring already well known, though not a rubber spring.

BURTON, J. A.-I have arrived at the same conclusion, although, I must confess, with much regret. However, as I understand the case is to be carried further, it may be found that the views we entertain are not sustainable.

I have not the slightest doubt that the improvement made by the plaintiffs was of great value, and that thereby a vastly better article was introduced, and at a greatly reduced cost, and I regret that the effect of our decision is to enable the defendants to avail themselves of the plaintiffs' ingenuity and skill without compensation. It does not commend itself to one as a very honest proceeding, but if the patent is not valid, we are unable to aid the plaintiffs, and upon the best consideration I have been able to give the matter, I am unable to convince myself that

it is.

OSLER, J. A., concurred with HAGARTY, C. J. O.

Appeal dismissed, with costs.

CONMEE V. CANADIAN PACIFIC RAILWAY COMPANY.

AND

THE CANADIAN PACIFIC RAILWAY COMPANY V. CONMEE.

Practice-Jury notice, striking out-Right to have cause tried by jury— Jurisdiction.

Conmee and McLennan became contractors for the construction of a section of the Canadian Pacific Railway. The agreement therefor stipulated that 90 per cent. of the work should be paid for during the progress thereof upon the progress estimates of the proper officer of the company, the remaining 10 per cent. to be paid on the completion of the contract, at which time the company alleged that they had discovered that by means of fraud the contractors had procured from their engineer progress estimates for sums greatly in excess of the work done and they claimed for overpayments about $600,000. The contractors, on the 5th of October, 1885, sued out process in the Queen's Bench Division to recover $200,000, the balance claimed by them as still due; and on the 31st of the same month the company sued out process in the Chancery Division against the contractors to enforce payment of the amount claimed to have been overpaid them. Issue was joined in the actions respectively on the 17th and 14th of November following. In the action in the Chancery Division the contractors gave notice for trial by a jury which, on application_by_the_company, was struck out by the master in Chambers who also made an order refusing a motion made by the contractors to stay proceedings in the Chancery Division action until the determination of the questions in the other action. Thereupon the contractors appealed, and on argument before Boyd, C., their appeal was dismissed.

The company moved for and obtained an order from the master in Chambers to stay all proceedings in the Queen's Bench Division action with liberty to the contractors to raise in the Chancery Division action by defence, set off, counter-claim, or otherwise, all questions intended to be raised by them in the Queen's Bench Division action against which order the contractors appealed to ROSE, J., who, feeling bound by the decision of BOYD, C., affirmed the order of the master. Held [reversing these orders], that the Court of Appeal had jurisdiction to entertain the appeals, and that a trial with a jury was the prima facie right of the contractors whose action was the earlier one, and that the orders complained of were not such as rested in the mere discretion of the Judge. [Hagarty, C. J. O., hesitante.]

Per OSLER, J.A., even if the facts were such as would entitle the Judge at the trial to strike out the jury notice, the present orders were premature.

THIS was an appeal from a judgment of Boyd, C., affirming an order of the Master in Chambers, on the application of the railway company, the plaintiffs in the action in the Chancery Division, setting aside a motion for a jury given by the defendants therein; and a further order in the

same action dismissing the defendants' motion to stay the proceedings and to try the issues raised therein in an action in the Queen's Bench Division brought by Conmee and McLennan against the railway company.

At the same time an appeal was brought by the railway company from a Judgment of Rose, J., affirming an order of the Master in Chambers in the action in the Queen's Bench Division, made on the application of the company, staying the proceedings therein; and with liberty to the plaintiffs Conmee and McLennan to raise in the Chancery action by defence, counter claim or set off all questions intended to be raised by them in the Queen's Bench Division action.

Both appeals came on to be heard on the 25th and 26th of February, 1886.*

McCarthy, Q. C., and Wallace Nesbitt for Conmee et al. Robinson, Q. C. and Moss Q. C. for the railway company.

The facts of the case and the points raised sufficiently appear in the judgments.

PATTERSON, J. A.-Conmee & McLennan commenced their action against the railway company in the Queen's Bench Division on 5th October, 1885, and issue was joined in it on 17th November, 1885.

The railway company's action against Conmee & McLennan was commenced in the Chancery Division on 31st October, 1885, and issue was joined in it on or about 14th November, 1885.

It will be convenient to distinguish the actions as the Queen's Bench Division action and the Chancery Division action, and also, for the sake of distinctness and brevity, to speak of Conmee & McLellan as the contractors, and of the Canada Pacific Railway Company as the company.

In the Chancery Division action the contractors gave notice for trial by a jury, and on motion on the part of the *Present.-HAGARTY, C.J.O., BURTON, PATTERSON, and OSLER, JJ. A. 94-VOL. XII A.R.