Common Law.

the contest between the prosecutor and the Patentee, as to the admissibility of the Disclaimer the latter may choose to propose after the institution of the action. Annexed to every Crown grant by the Common Law Royal grants at is an implied condition, that in the event of its being either contrary to Law, void for uncertainty in its terms, obtained by deception of the Crown, or injurious to the rights of other subjects, the grant thus made may be repealed by quo warranto' or scire facias, instituted

0 66

Although the privilege" (the use of the Prerogative of the Crown in scire facias upon the fiat of the Attorney-General)" is not enforceable by mandamus, it is so much of common right that in no case has it been refused to my knowledge. Indeed, in the somewhat analogous case of a Petition of Right, it has of late years been the practice at the Home Office to endorse' Let right be done,' as a matter of course, without ever referring the matter to the AttorneyGeneral." Per Jervis, C. J. [Attorney-General from July, 1846, to July, 1850], Eastern Archipelago Company v. R. (1853), Ex. Ch., 1 C. L. Rep. 185. "By Stat. 11 & 12 Vict. c. 94, s. 26, no writ of scire facias is to issue without the fat and leave of the Attorney-General; and although mandamus does not lie to compel that officer to grant his fiat, it appears that in the event of his improperly withholding it, he might be questioned in Parliament and punished." Per Campbell, C. J., Ibid. "The Attorney-General, who exercises the power of the Crown in this respect, has no option: he simply decides the question of a prima facie right." Ibid., per Parke, B. It was contended, in this case, that the fiat of the Attorney-General for issuing the writ of scire facias, so far from being equivalent to a writing under the Great Seal or Sign Manual, was not evidence that such writing had issued, or any signification of the Queen's will at all.

PR. v. Butler, 3 Lev. 220; Legat's case, 10 Co. Rep. 113 b; Magdalen College case, 11 Co. Rep. 74 b. See authorities as to the powers of the Crown at Common Law cited in Hind. 378.

That a grant may be avoided by concealment in the recital in an action by the grantee against a third party, appears from Alcock v. Cook, 3 Bing. 234.

Quo warranto, it is said, is always founded on an usurpation, and supposes a party in actual, but not legal possession (Peter v. Kendal, 6 B. & C. 708); scire facias proceeds on the supposition that a body in legal possession of certain powers is acting in abuse of these powers. Eastern Archipelago Company v. R. (1853), Ex. Ch., 1 C. L. Rep.

Scire facias.

Unaffected by reserved powers of the Crown.

either by the Crown, or by a subject aggrieved using the Prerogative of the Crown' upon the fiat of the Attorney-General.

By scire facias the fact of forfeiture and the sufficiency of the grant in point of Law are tried, and the Letterspatent, if invalid, revoked and cancelled by the Court. "It is laid down," says Lord Campbell, C. J., “by all writers of authority, that if Letters-patent under the Great Seal have been granted on any false representation by which they are void, or if after the grant there has been a breach of any condition subsequent whereby they are voidable, the Prerogative writ of scire facias to repeal them may be sued out either directly by the Crown or with the consent of the Crown, on the relation of an individual who may be the relator, and in subsequent proceedings it is wholly immaterial whether the scire facias, which in all cases must be in the name of the King, is issued with or without a relator."t

The reservation by the Crown in its grant of the power of summary revocation in no way impedes the action of scire facias for their repeal at the instance of a subject. "It would, as it seems to me," says Platt, B.," "be a new doctrine to hold that the Crown, merely by reserving to itself certain powers in a grant to one subject, could take away from all other subjects those rights which by the Common Law are in their favor annexed to such grant. The dangerous effect of this is clear-a Patentee

Chitty, P. C. 330; 1 Hawk. P. C. 627.

Eastern Archipelago Company (1853), Q. B., 22 L. T. 33.

(1853), Ex. Ch., Eastern Archipelago Company v. R., 1 C. L. Rep. 171. In the Court below (Queen's Bench) it had been held (1853, 21 L. T. 33), by Coleridge and Erle, Js., that such a proviso in a Charter operated as a restraint upon the general right to repeal Letters-patent for a breach of their conditions by scire facias in the first instance, and that the Crown must revoke the grant under the Great Seal, or by writing under the Sign Manual, before a private person could prosecute a scire facias, even with the leave of the Attorney-General.

is induced to await the movement for rectifying his claims from the public, instead of himself taking steps."

Act.

By Stat. 15 & 16 Vict. c. 83, s. 15, the writ of scire Under the new facias lies for the repeal of any Letters-patent issued under that Act, in the like cases as the same would lie for the repeal of Letters-patent which before that Act were issued under the Great Seal. The remedies for parties in Ireland by scire facias are (s. 29) to be as complete as though the Letters-patent had been granted to Ireland only. In any proceeding in Scotland to repeal any Letters-patent, service of all writs and summonses are to be made according to the existing forms and practice.

Coke, in his Institutes, lays down the cases in which Coke. such action lies: Firstly, where the King by his Letterspatent doth grant by several Letters-patent one and the selfsame thing to several persons, the former Patentee shall have a scire facias to repeal the second Patent; Secondly, where the King granteth anything that is grantable upon a false suggestion, the King, by the Prerogative jure regio, may have a scire facias to repeal his own grant; Thirdly, where the King doth grant anything which by Law he cannot grant, he jure regio, for the advancement of justice and right, may have a scire facias to repeal his own Letters-patent.*

In the form now applicable to Patents for inventions, Practice recent. the employment of this process is of no long standing. On the trial of Arkwright's Patents in 1785, Mr. Justice Buller observed :-"The proceeding of scire facias to repeal a Patent is somewhat new in our time. None such has occurred within my memory, though in former times they certainly were very frequent." It soon afterwards was brought into general use, and employed with such formidable effect, that until recently no Patent had

* 4 Inst. 88; 2 Rol. 191, 1. 35; 2 Wms. Saund. 6th ed., 72, n.; Dyer, 197 b, 198 A; Com. Dig. F. 6.

* Spinning machinery, Dav. Pat. Cas. 144; Web. P. R. 74.

The prosecutor.

The writ as of

right.

survived the ordeal. Disclaimer, however, now furnishes the Patentee with an efficient weapon of defence. Although filed after issue joined it is admissible in evidence, need not be pleaded puis darrein continuance, but is to be read as part of the original Specification."

A scire facias, it is said, may be sued by any person who is prejudiced by a Patent as well as by the Crown. No matter whence the movement for its suppression, the Crown is bound to lend it its support. An illegal monopoly being, as was observed by Lord Langdale, a public nuisance, the Crown, when informed of such grievance, and having the power and the duty to remove it, ought not to be disabled from directing the necessary proceedings to ascertain the truth, because the information was given by an alien or by a person who had no special or direct interest in the matter, or was endeavouring to promote the interest of some other person, or was actuated by some improper motive. Two persons cannot however, it appears, join in the prosecution, unless they have a joint interest."

The right, however, of the subject to the writ can z Turner, 72.

a R. v. Mill (1850), instruments for marking, 1 L. M. & P. 695. b Brewster v. Weld (1705), 3 Anne, rectory of Aldgate, 6 Mod. Ca. 334.

e R. v. Prosser (1848), M. R., 11 Beav. 317.

d R. v. Neilson (1842), L. C., iron, Web. P. R. 673, n.; 3 M. & R. 460.

• In scire facias for the repeal of grants of lands, royalties and offices by the Crown, it is said to have been the practice to commence by a memorial to the Crown (2 Saund. 72), and that a warrant then issued to the Attorney-General, who thereupon granted, er debito justitia (Web. P. R. 669, n.), his fiat for the issue of the writs. The practice has, however, fallen into desuetude (Hindm. 385), and never appears to have been usual in the case of Patents for inventions. Sir Oliver Butler's case, 1 Vent. 44; Dy. 276; Staundforde's Prerog. cap. 23; Bro. Abr. tit. Repellance; 1 Richardson's Pract. C. P. 391; R. v. Aires, 10 Mod. 354; Earl of Kent's case, H. 21, E. 3, fo. 47, pl. 68, T. 44, E. 3, fo. 16, pl. 3; Fitz. Traverse, pl. 41; Bro. Peticion, pl. 11; Challer's case, M. 9, H. 4, fo. 4, pl. 17, and see authorities cited Smith v. Upton (1843), C. B., 6 M. & G. 252, n.

facias.

hardly be said to be a settled point, considerable doubts existing both as to this and as to the effect of the special power of summary revocation reserved by the grant on the ordinary process for its repeal. Unless the breach were of some substantial condition of the grant, it appears the Attorney-General would be justified in refusing it," as he would be in a similar exercise of his discretion in refusing a writ of error in a criminal case. He might also stop the proceedings by means of a nolle prosequi. Of the mode in which Patentees have availed them- Abuse of scire selves of this process for the purpose of tormenting one another, we have instances in R. v. Lister and R. v. Hadden, R. v. Fussell and R. v. Daniell, and others. To guard against the perversion of the Prerogative to the The bond. purpose of mere vexatious annoyance, it has been the practice of late' to require the prosecutor in this action to enter into a bond with two sureties to secure to the defendant his costs in the event of the failure of the prosecution. The bond is executed at the Office of the Petty Bag or before a Master Extraordinary in Chancery, the prosecutor's solicitor certifying to the sufficiency of the sureties. It is, however, not to be deposited or filed in the Office of the Petty Bag unless the intended obligors,

145.

Eastern Archipelago Company v. R. (1853), Ex. Ch., 1 C. L. Rep.

Cardigan v. Armitage, per Bayley, J., 2 B. & C. 197; Hodgson v. Field, 7 East, 613.

h See per Lyndhurst, L. C., R. v. Neilson (1842), iron, Web. P. R.

672.

i (1826), Godson, 274.

* (1827), Ibid.

The bond was first required in 1790, the amount being 500l.; but, since 1836, it has been increased in ordinary cases to 1000l. It rests, however, entirely in the discretion of the Law officer for the conditions under which liberty will be given to put the bond in suit. (General Orders, Aug. 1849, No. 18. See R. v. Mill before alluded to (1851), 11 Beav. 312; and form of the writ in Abbott's Forms, No. 88; Hind. 708.)