scire facias is a prerogative writ, it is not a writ in this case de- A.D. 1842. mandable by the subject; if the crown had granted the same market to two different persons, the party prejudiced by the second grant might, according to the usage which then prevailed, have a right to come to the crown and ask for the repeal of the second patent. But this case is not one affecting individuals under two different grants, and the only ground upon which this can be asked for is, that the crown has been deceived in its grant. The crown granted a monopoly by which the subjects may be conceived to have been suffering an injury during its continuance, but that monopoly has now ceased. There is no legitimate ground for issuing this scire facias on the part of the crown, nor have the parties who obtained it any legitimate ground; they have perfectly legal means of defending themselves, and there is no reason why parties subjected to legal proceedings on the patent for Scotland should institute proceedings in England. [Lord Lyndhurst, L.C.: You ask that the writ may be vacated and set aside, and proceedings stayed. It issued correctly.] It might have issued correctly, but it may be quashed in the same way as a commission of lunacy. [Lord Lyndhurst, L.C.: A commission of lunacy is superseded although originally properly issued, because it is not proper that its operation should be continued. The staying proceedings will answer the purpose.] The ground of issuing these writs is stated 4 Inst. 88 (d), whence it appears, that they are issued by the royal prerogative, when the crown has granted something which it had the power to grant, but which was granted upon false suggestion, to prevent the crown being aggrieved by the grant, and to prevent injury being done to any other person by the continuance of that grant; but the monopoly in this case having expired, there is no ground for these proceedings. This question would appear to have arisen for the

(d) The following is the passage referred to as expressing the law upon the subject: "This writ of scire facias to repeal letters patent doth lie in this ordinary course of justice in three cases. The first, when the king by his letters patent doth grant by several letters patent one and the self-same thing to several persous, the former patentee shall have a scire facias to repeal the second patent. Secondly, when the king granteth any thing that is grantable upon a false suggestion, the king by his prerogative jure regio may have a scire facias to repeal his own grant. Thirdly, when the king doth grant any thing which by law he cannot grant, he jure regio (for advancement of justice and right) may have a scire facias to repeal his own letters patent." According to the first case here mentioned, if two letters patent be granted for the same thing, the former patentee shall have a scire facias; but in the case of an invention, how is it to be determined that they are

the same? and if the same, the first letters patent may be equally invalid. In any other case, except that of two rival grants, it would appear from the above that the crown and not the individual is to be the party at whose instigation the scire facias should issue.

It is also material to observe, that in the case of two grants of the same thing, the second patentee cannot have a scire facias, the former patentee alone being entitled to that. Dyer, 276.

In Brewster v. Weld, 6 Mod. 229, it is said that a person prejudiced by the patent may have a scire facias as well as the king; but that was a case of the grant of a living.

It was doubted in that case whether a writ sued out of Chancery could be returnable in another court, but if so returnable it was held that such court must judge of its regularity. See further, 2 Saund. 72 0.

In Chancery.

first time, but it seems unreasonable that litigation should go on for avoiding a term which has expired. An application of this nature is to the discretion of the court. There is no analogy between a proceeding upon scire facias in the name of the crown and a proceeding in the name of a private individual. Could a landlord come into equity against a tenant to set aside a lease on the ground of fraud or misrepresentation, or any equitable ground, after the term of years granted in that lease so sought to be set aside has expired? [Lord Lyndhurst, L. C.: Suppose a lease which had been obtained by fraud to have expired, the covenants might still subsist, and proceedings be had upon them. Would not equity interfere to restrain the parties from proceeding upon those covenants where the transaction was fraudulent?] There is no analogy between the two cases of the crown and a proceeding by a private individual as suggested. Mr. Neilson, during a term of fourteen years, has enjoyed peaceable and undisturbed possession against all the world, and when his right has been invaded he has asserted and maintained it. The monopoly had ceased before the day on which the defendant was called to answer to the writ; there is no longer any ground for it. The vexation which the public sustain by the monopoly is the only ground upon which the writ is issued by the crown on behalf of the public.

As to the jurisdiction, this writ issues from the common law side of the Court of Chancery-it is returnable in Chancery; and being issued and returnable in that manner, the Chancellor has jurisdiction. In some cases, all the further proceedings are before the Chancellor, as, if there be a demurrer; and it is only when there are issues in fact that the record is sent to the Court of Queen's Bench (e). The writ in the present case is not due ex debito justitiæ; it is in the discretion of the crown in all cases except where there are two patents inconsistently granted to several parties; then the first party has a right ex debito justitie to a writ of scire facias to repeal the patent granted to the other party. It is not said that the writ improperly issued, and that it should be quashed; but only that circumstances have since occurred making it unreasonable and improper that further proceedings should continue. If the crown be bound to see that the public are not unduly vexed by a monopoly, it is also bound to protect the patentee against unnecessary litigation.

The proceeding by scire facias is one which the subject obtains of the grace and favour of the crown, and the attention of the crown should be drawn to all the circumstances that might

(e) See 2 Saund. 6 a, where it is said, that in case of a demurrer and issues in fact judgment on the whole is given in the Queen's Bench.

govern its discretion in the matter. When a scire facias is A.D. 1842. applied for, the queen's warrant directed to the Attorney General is obtained upon petition, and the Attorney General may, or may not, grant his fiat, just as it shall appear to that law officer that the crown should interfere or not (f). The proceeding is analogous to a proceeding upon a writ of right, which depends altogether on the will and pleasure of the law officer of the crown. It has been said that the Attorney General exercises no discretion except as regards the security for costs, but the question is, what ought to be done? The theory is perfectly clear. The crown, it is said, has been induced to do a wrong; the remedy provided for a complaint of that sort is a petition for a process. The crown refers the matter to its law officer, and if that law officer thinks fit to advise the crown not to interfere, the subject has no remedy. In all cases, as the passage in the Institute shows, the proceeding goes on the notion that it is a complaint against the crown, except in cases where the controversy lies between two grants of the crown, that is, when the question is, which of two grants shall prevail, and then it is a matter exclusively between subject and subject, and in that case only the writ is said to be granted ex debito justitiæ, because it is a matter not concerning the crown, as complained of, but a matter merely concerning the rights between subject and subject. In all other cases it falls precisely under that rule of our law, which does not permit a complaint to be made against the crown, except with the permission of the crown. If that be so, the Attorney General has a right if he chooses to refrain from issuing his fiat, without which no proceeding can be taken. There is no other case known to the law in which there is any impediment to granting the original writ, except in a case of this description, and the interposition by the Attorney General must be considered as allowed merely for that purpose. If that be so, it is clear that the writ might have been denied to the subject. But the Attorney General having granted his fiat, and the writ having been obtained, on whom does the guardianship of the prerogative devolve? This being a prerogative writ, one which concerns the prerogative of the crown, and one that in theory complains of the queen herself, the question is, who has control over the proceedings, supposing a case to justify such control to arise after the fiat has been granted? Control must exist somewhere over every proceeding. Either your lordship may refer it back to the Attorney General to consider, whether the proceedings should go on, or whether the fiat should be revoked; or, your

(f) It is said, 2 Saund. 72 p, that a memorial is presented to the crown for a scire facias, and that there is a warrant to the Attorney General for suing it out, and that the Attorney General then

grants his fiat. This practice has been abandoned, but at what period, or on what grounds, is not noticed in any of the books of practice.

In Chancery. lordship having the custody of the writ, before whom it is returnable, and in whose court the issue is to be made up, may make that order which shall seem meet for preventing or putting an end to all further proceedings. Your lordship has entire control over it in two capacities,-first, the guardianship of the prerogative of the crown, which if it be taken out of the hands of the Attorney General must of necessity be in the hands of your lordship. Secondly, the writ is returnable here, the defendant must plead here, and the issue is made up here, and the venire issues from the Petty Bag Office, which is your lordship's court, and the issue is sent by your lordship into one of the common law courts to be tried (g). In conformity, therefore, with all judicial proceedings, the control of these proceedings is in your lordship. In the case of the Queen v. Aires, (10 Mod. 259,) it was held, that upon issue joined in Chancery, that court must award the venire. It depends entirely on your lordship's discretion, whether the issue is permitted to be made up, or whether proceedings be stayed directly or indirectly, as by giving unlimited time to plead. The Attorney General might well grant his fiat at the time when the record was in existence, but supposing the record to be made up and the venire to be awarded, the court of common law will be speculating on that which has ceased to exist. The complaint is, that the crown is injured through the medium of the subject having a monopoly which ought no longer to exist. [Lord Lyndhurst, L.C.: Suppose the judgment on the scire facias to be against the patent, would the proceedings for account go on in this court? Would not that be a ground on which to file another bill? Would this court, under such circumstances, allow the account to go on and be taken?] [Wakefield, Q.C.: A supplemental bill, in the nature of a bill of review, would reach the case.] The court would not permit these circumstances to be brought up except on a case where the proceedings had been taken by the defendant himself, and in due time, and for the purpose protecting himself in a legal manner against the proceedings meditated against him. And no proceedings of this kind could have a retrospective operation, to recover back money actually paid for licenses, or money due in respect of damages while the right existed and was unquestioned. If it be a proper principle of our jurisdiction, that it will always give credit to a patent, and act on a patent which has remained unquestioned for a considerable period of time, it would be most unjust to

(g) It appears undecided whether the judgment is given in the Court of Queen's Bench, to which the issues are sent, or whether the record is to be remanded into Chancery for final judgment. See 1 Eq. Cas. Abr. 128.

It has been said, referring to Jeffreson v. Morton, 2 Saund. 6a, that judgment must be given in the

of

court which tries the issue, and that the record was not to be remitted to Chancery for judgment. And in Jeffreson v. Morton it is also said, that a record once sent to the Court of Queen's Bench always continues there; 2 Saund. 27. See Blarton's case, Latch 3; 1 Eq. Cas. Abr. 128.

permit a party to question a patent after its term had expired, A.D. 1842. for the purpose of allowing him to protect himself against Chancery proceedings. The question therefore is, whether there is any room for the judgment being pronounced; would it not be absurd to direct a record which has expired to be vacated? Is there any possibility of such a judgment? Is a venire to be awarded for the purpose of trying a matter which has been put an end to, or can any complaint be justly made when the time which the crown has prescribed is now at an end? This is a desperate proceeding resorted to for a bye end. Your lordship having the care of the prerogative will not permit it to be put in force in this manner. It may be referred back to the Attorney General, as in the case of charity informations, to see whether the matter should be further prosecuted. It appears from Brewster v. Weld (6 Mod. 229), that if a writ of scire facias be issued out of Chancery, returnable into Chancery or any other court, the court into which it is returnable must exercise the jurisdiction over it, and every proceeding on that writ must be exercised by this court. However regular the proceedings are, the court will sometimes stay them, as where the cause of action is frivolous, or there has been a want of good faith (h), and there can be no doubt of the authority of the court.

Lord LYNDHURST, L. C.: I want to know whether the Attorney General grants his fiat in all cases of scire facias. Suppose two patents granted to two different persons for the same invention, and that a scire facias has been applied for by one party to repeal the letters patent of the other, in such a case, where the writ issues ex debito justitiæ, is the Attorney General's fiat necessary (i)?

Sir F. Pollock, A. G.: It seems to me, that in the case of two patents for an invention, the ground of the scire facias would not be so much that of one patent standing in the way of the other, as that the first patent showed the second not to be

(h) See Tidd's Practice, 516, & Chitty's Archbold, 7th ed. 994. The case of Rowe v. Brenton was referred to in the course of the argument as one in which the court had stayed proceedings from term to term, on the ground that the party was about to make a wrong use of the action with regard to other proceedings before the court.

(i) The fiat is requisite in all cases. 2 Saund. 720. The books of practice, 2 Rich. Prac. C. P. 391-398, give the form of a memorial to the crown for a warrant to the Attorney General to authorize a writ of scire facias; this is referred to the Attorney General, and on his report the warrant is made out, and a draft of the writ, to which the Attorney General subscribes his fiat, as follows: "Let there be a writ of sci. fa. issued according to the tenor within mentioned." According to the present practice the memorial is not used, but

on application at the Petty Bag the writ may be obtained, almost, as it would appear, of course; but a practice has been recently introduced of entering a caveat at the chambers of the Attorney General against the issuing of the writ, upon which the parties come before the Attorney General.

In a recent case (The Queen v. Newall) Sir F. Pollock, A. G., on a petition for relief against certain suggestions in a writ of scire facias, which had regularly issued, decided that he would direct a nolle prosequi to be entered as to certain parts of the writ if the prosecutor insisted on retaining them.

The Attorney General has afforded similar relief in other cases, but his jurisdiction has till recently been exercised principally on the subject of security for costs. See ante 64.