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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dudgeon v. Thomson & Co [1876] ScotLR 13_384_1 (17 March 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/13SLR0384_1.html
Cite as: [1876] SLR 13_384_1, [1876] ScotLR 13_384_1
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SCOTTISH_SLR_Court_of_Session
Page: 384↓
Court of Session Inner House First Division.
[
v.
Facts:
A obtained interdict against B in a process of suspension and interdict for infringement of patent. Thereafter B assumed a partner under the firm of B & Co., and A brought a second process of suspension and interdict against the firm for infringement of the same patent. Held that as A's averments upon which his case rested were that B had personally, and apart from any question which might arise in regard to his partner, committed a breach of the interdict previously granted, the proper course was to bring a petition and complaint for breach of interdict, and not to ask the Court for a repetition of the previous interdict; and process sisted, to allow the petition and complaint to be brought.
Richard Dudgeon, London, on 31st January 1873 obtained interdict against William Thomson, engineer, Glasgow, in a process of suspension and interdict for infringement of a patent held by him for improvements in apparatus used in “expanding boiler-tubes.” In that process the validity of the patent was brought in question by the pleas of the respondent, but his objections were not given effect to. Dudgeon now brought another suspension and interdict for infringement of the same patent against the firm of William Thomson & Co., in which he alleged, inter alia, that “infringements of the complainer's said patent have been, and are being, carried on by the said William Thomson, or at least he has been and is actively participating in the said infringements.” The firm of Thomson & Co. consisted of, as appeared from their contract of copartnery, Thomson the respondent in the first process, and another partner, who had been taken into the concern after the date when the interdict was granted. The respondents, besides denying that they were infringing the patent, pleaded its invalidity on four different grounds, none of which were alleged in the previous process. The complainer answered that these pleas were excluded exceptione res judicata, in respect that they were either proponed and repelled, or competent and omitted, in the first action. The Lord Ordinary repelled the plea of res judicata, and a reclaiming note was presented.
Page: 385↓
At advising—
With these facts before us, we cannot permit the complainer to take the course he proposes unless he presents a complaint for breach of interdict. To grant a second interdict where a first has been broken would be a course to which the Court would not resort. Interdicts must be obeyed, and it is impossible for a party to come and ask for a repetition of a previous interdict in place of bringing a complaint for breach of it. The present suspension must be sisted to enable the complainer to bring a petition and complaint.
The Court pronounced the following interlocutor:—
“Sist process to give the complainer an opportunity of presenting a petition and complaint for breach of the interdict granted by the interlocutor of Lord Mackenzie, dated 31st January 1873, adhered to by this Division of the Court on 4th July following: Reserving all questions of expenses.”
Counsel for Complainer (Reclaimer)— Balfour— Hunter. Agent— D. Curror, S.S.C.
Counsel for Respondents— Asher— Jameson. Agents— Auld & Macdonald, W.S.