Issue.

The record.

if a writ abates by plea of matter of fact against one, it does not abate as to others. If in a præcipe quod reddat against two, one pleads non-tenure and the other takes the whole tenancy on himself, the writ will stand good as to that other, because there is a proper defendant.j

The prosecutor may of course demur to any of the defendant's pleas if they are insufficient in Law. As the pleas generally simply traverse the suggestions of the writ, the common joinder in issue is usually the only replication required. The prosecutor's demurrer or replication may be prepared either by himself or his solicitor, and must be delivered to the defendant or his solicitor.'

The issue may be made up and delivered by either party or his attorney to the opposite party or his attorney. Formerly, as above stated, when there were issues of Law and fact in the Petty Bag Office, the whole record was sent into the Queen's Bench for determination, as there could not be a judgment of the Chancellor upon one part of the record, and a judgment of the Queen's Bench as to another part of the same record." By Stat. 12 & 13 Vict. c. 109, the issue is in all cases to be sent into one of the Superior Courts of Common Law. The record of the issues must be made up and filed in the Office of the Petty Bag." A transcript from the record containing the issues is then sealed with the Common Law Chancery seal, and delivered out to the prosecutor or his attorney, by whom it is taken to the Court of Common Law,° and there filed. In the case of the Queen's Bench, the filing takes place in the Crown Office. The transcript is a sufficient record to enable the Court of Common Law to give judgment. Another

j 1 Bac. Abr. 20 (7th ed.), Abatement (L.) in marg.

k Hindm. on Pat. 401.

1 12 & 13 Vict. c. 109, s. 31.

m Smith v. Upton (1843), C. B., 6 M. & G. 258, n. (a).

n Stat. 12 & 13 Vict. c. 109, s. 33.

o Ib. s. 32.

Bynner v. R. (1846), lamp, 9 Q. B. 551.

record, setting out the Chancery record, is then made out, and the cause is set down in the usual manner.

trial.

Proceedings may be taken and trial had either in term Proceeding to time or vacation' in any one of Her Majesty's Superior Courts of Common Law. The name of the Court fixed on by the party applying to have the writ sealed must be endorsed on the writ, and a memorandum thereof entered with the Clerk of the Petty Bag, before any further proceedings are taken in the action. The Court may issue a commission to examine witnesses."

X

If the prosecutor be guilty of delay in carrying the Delay. cause to trial, he will, on application being made to the Court, have to pay costs." The Attorney-General's warrant for a tales,' obtainable as of course,a should be procured by each party. If no tales be prayed and the cause goes off for want of a jury, neither party is liable to pay costs. The defendant is not bound to make use of the warrant.b

Notice of trial must be given according to the practice Notice of trial.

Abbott's Forms, &c. 105; Stat. 15 & 16 Vict. c. 76, s. 102; Corner's Cro. Pr. 99-128.

Stat. 12 & 13 Vict. c. 109, s. 27; Ex parte King, 1 Sand. Ord. in Chanc. 355.

• General Orders of Chancery, 3rd Aug. 1849, No. 13.

Ibid. No. 14.

"As to the practice with respect to issues transmitted from Chancery to the Queen's Bench for trial, see Mr. Hardy's note in the Second Appendix to the Seventh Report (1846) of the Deputy Keeper of the Public Records, 277. See also Bourdeaux v. Rowe (1835), 1 Bing. N. C. 721; Hargrave v. Hargrave (1847), 4 C. B. 654.

× R. v. Dyde, 7 T. R. 661; R. v. Macleod, 2 East, 202; R. v. Masters, Parker, 51; R. v. Banks, 6 Mod. 247.

y Corner's Crown Pr. 141; R. v. Bartrum, 8 East, 269; R. v. Waring, 5 T. R. 454.

z 2 Hawk. c. 41, s. 18; Varni v.

Cro. Pr. 142.

a Hindm. 411.

1 Lev. 223; Corner's

b R. v. Righton (1765), K. B., 3 Burr. 1695.

The trial.

of the Court in which the issue is to be tried.d

Notice to admit documents proposed to be used as evidence on the trial should be also given.

The trial may be either at bar or Nisi Prius, as the Court shall think fit, and either by special or common jury. Being on a record it must be tried in Middlesex.f Right to begin. The defendant is entitled to begin and give evidence in support of his Letters-patent. The defendant cannot demur to the evidence for the Crown, unless by consent of the counsel for the Crown; if that be refused, the Court ought to direct the jury to find the special matter Right to reply. upon which the Law may afterwards be adjudged.

Evidence.

Notice of ob.

of the record.

If evidence is adduced by the prosecutor impeaching the validity of the Letters-patent, the defendant is entitled to the reply.

The remarks on the evidence in actions for infringement in the next chapter will be found to include that in cases of scire facias. The prosecutor must show that the Patent is void on some one of the grounds contained in the suggestions.

The notice of objections in scire facias, although part jection no part of the transcript sent from Chancery, is no part of the record in a Court of Common Law, so as to form parcel of the issues to be tried, nor can it be resorted to for the purpose of narrowing any of the issues to one claim.'

c Abbott's Forms, &c. 101.

Stat. 12 & 13 Vict. c. 109, s. 24. For forms of subpæna ad testificandum, see Corner's Cro. Pr. App. 198.

e Stat. 12 & 13 Vict. c. 109, s. 32. See Stat. 17 & 18 Vict. c. 125, s. 1.

2 Chitty, P. C. 337.

Stat. 15 & 16 Vict. c. 83, s. 41.

Baker's case, 5 Co. 104 a; Middleton v. Baker, Cro. Eliz. 752; Co. Litt. 72 a; Fitzharris v. Boiun, 1 Lev. 87; Doct. Plac. 119.

1 Stat. 15 & 16 Vict. c. 83, s. 41.

* R. v. Cutler (1847), Q. B., tubular flues, 3 C. & K. 215.

R. v. Mill (1850), C. B., instruments for marking, 1 L. M. & P.

dence.

A count in a scire facias contained suggestions of want Disclaimer reof novelty and utility in a certain part of the invention. ceivable in eviThe objections filed with the declaration pointed out the sixth claim in the Specification as wanting novelty and being useless. The pleas traversed all the suggestions in the count. After issue joined, a disclaimer was entered by the defendant. It was held that the disclaimer was receivable in evidence, and that being received, the Effect of. defendant was entitled to a verdict upon all the issues."

If issue be taken upon each of several suggestions in Verdict. the writ, a verdict on any one of them entitles the Crown to judgment." It was held that other issues being then immaterial, the judge may properly discharge the jury from returning a verdict upon them. If the jury cannot agree, the judge at Nisi Prius has power to discharge them. If the jury think the case doubtful, they must find for the defendant.P

after verdict.

The Clerk of the Petty Bag, upon receiving the return Proceedings of the transcript of the verdict of the jury and proceedings or judgment of any Court of Common Law upon any issue in law or in fact, is to file the same in the Petty Bag Office, and is to cause an entry to be made of such verdict and proceedings or judgment, and such transcript is to be annexed to the original record in the Petty Bag Office; and thereupon the judgment of the Court of Common Law is to be entered on or annexed to the same record, in conformity with the judgment of the Court from which the transcript is returned.a

The Court in which the action is tried has power to New trial.

m R. v. Mill (1850), instruments for marking, 10 C. B. 379.

R. v. Johnson (1836), Exch. Ch., Quo warranto Office of Alderman of London, 5 A. & E. 488, Eastern Archipelago Company v. R. (1853), Exch. Ch., 1 C. L. Rep. 145.

• Cook v. Caldecott (1830), N. P. Trover, 4 C. & P. 315; but see Tolson v. Kaye (1843), 6 M. & G. 589.

P R. v. Cutler (1847), Q. B., tubular flues, 3 C. & K. 215.

a General Orders, No. 8, 3rd Aug., 1849.

Judgment for the Patentee.

Judgment.

grant a new trial' on payment of costs.

If the trial be had in vacation, motion for a new trial must be made within the first four days of term. If a rule nisi be granted, but judgment has been regularly signed on the ground that notice of motion was not given pursuant to Reg. Gen. Mich. 12 Vict., the party obtaining the rule cannot be heard in support of it while the judgment stands.

If the Patentee be successful in the Court of Common Law, final judgment is entered up in that Court, nothing remaining to be done in the Court of Chancery."

If judgment be given for the Crown, and the defect in the Patent prove such as the remedies provided by Stat. 5 & 6 Will. IV. c. 83, can repair, application should be made to the Court to suspend judgment.

X

If unsuccessful, the defendant may move in arrest of judgment, or the prosecutor for judgment non obstante veredicto. Application should be made to the Master of the Rolls to stay the entry pending such motion.

It has been doubted whether the defendant is entitled to tender a bill of exceptions in any case where the

The first case of a new trial found in the books is that of Wood v. Gunston (1665), Styles, 462. See, as to misdirection, Yarmouth v. Darrell, 1 & 2 Jac. II., monopoly printing blank writs, 1 Vern. 77; Wallington v. Dale (1852), Exch., gelatine, 19 L. T. 187.

Hullock on Costs, 396; R. v. Arkwright (1785), Dav. P. C. 141; R. v. Wheeler (1819), 2 B. & Ald. 345; R. v. Bynner (1846), 9 Q. B. 529; R. v. Bewdley (1712), 1 P. Wms. 207. This was after a trial at bar in the Crown Office of the Court of Queen's Bench.

t R. v. Macleod (1816), 3 Price, 203. A new trial was granted on the grounds that the verdict was against the direction of the Court.

u The King's Warrant before alluded to expressly reserved power after conviction to suspend the entry of any judgment to vacate the Patent.

* Eastern Archipelago Company v. R. (1853), Exch. Ch., 1 C. L. Rep. 145.

y Hindm. 413; and see the correspondence (1711) between the Lord Keeper and the Lord Chief Justice, there cited; R. v. Archbishop of York, Willes, Rep. 535, and cases there cited; R. v. Cutler (1847), Q. B., tubular flues, 3 C. & K. 215; 2 Inst. 427.