(B) How restrained by the Statute.

ward. Qu. whether, having accepted such certificate, they could afterwards repudiate it at pleasure?

Allnutt v. Inglis, 12 East, 527.||

(B) How restrained by the Statute.

By the 21 Jac. 1, c. 3, it is declared and enacted, "That all monopolies, and all commissions, grants, licenses, charters, and letters-patent to any person or persons, bodies politic or corporate whatsoever, of or for the sole buying, selling, making, working, or using of any thing within this realm, or Wales, or of any other monopolies, and all proclamations, inhibitions, restraints, warrants of assistance, and all other matters whatsoever, any way tending to the instituting, strengthening, furthering, or countenancing of the same, or any of them, are altogether contrary to the laws of this realm, and so are and shall be utterly void, and of none effect, and in nowise to be put in ure and execution."

And § 2, "That all persons, bodies politic and corporate whatsoever, shall be disabled and incapable to have, use, exercise, or put in ure any monopoly, or any such commission, grant, or license, &c., or other thing tending as aforesaid, or any liberty, power, or faculty, grounded or pretended to be grounded upon them or any of them."

And it is further declared and enacted, by § 3, "That all monopolies and all such commissions, grants, and licenses, &c., and all other things tending as aforesaid, and the force and validity of them, ought to be and shall be examined, heard, tried, and determined by and according to the (a) common laws of this realm, and not otherwise."

(a) In the construction hereof it is held by my Lord Coke, that all matters of this kind ought to be tried in the courts of common law only; and not at the council-table, or in the Court of Chancery, or any other court of like nature. 3 Inst. 182. But for this vide Jurisdiction of the Court of Chancery, tit. Courts and their Jurisdiction.

And it is further enacted, by § 4, "That if any person shall be hindered, grieved, disturbed, or disquieted, or his goods or chattels any way seized, attached, distrained, taken, carried away, or detained by occasion or pretext of any monopoly, or of any such commission, grant, or license, &c., or other matter or thing tending as aforesaid, and will sue to be relieved in any of the premises, he shall have his remedy for the same at the common law, by action grounded on the said statute, to be heard and determined in the King's Bench, Common Pleas, or Exchequer, against the party by whom he shall be so hindered or grieved, &c., or by whom his goods shall be so seized or attached, &c.; wherein every such person, which shall be so hindered or grieved, &c., or whose goods shall be so seized or attached, &c., shall recover three times so much as the damages which he sustained by means of such hinderance, &c., and double costs; and in such suits, or for the staying or delaying thereof, no essoin, protection, wager of law, aidprayer, privilege, injunction, or order of restraint, shall be in anywise prayed, granted, admitted, or allowed, nor any more than one imparlance; and if any person shall, after notice that the action depending is grounded upon the said statute, cause or procure any action at the common law grounded thereon to be stayed or delayed before judgment, by colour or means of any order, warrant, power, or authority, save only of the court wherein such action shall be depending; or after judgment shall cause or procure the execution to be stayed or delayed by colour or means of any order, warrant, prayer, or authority, save only by writ of error or attaint, that then the said person or persons so offending shall incur a præmunire."

(B) How restrained by the Statute.

It is said, that the first branch of this last clause, relating to the delay of causes of this kind before judgment, not only extendeth to the Privy Council, Chancery, Exchequer Chamber, and the like, but also to those who shall procure any warrant from the king for such purpose; and it is said, that the latter branch, relating to the delaying of execution after judgment, extendeth even to the judges of the court where the cause is depending. 3 Inst. 183.

But it is provided by § 6, "That no declaration, in the statute mentioned, shall extend to any letters-patent, and grants of privilege for the term of fourteen years, or under, of the sole working or making of any manner of (a) new manufactures within this realm, to the true and first inventor and inventors of such manufactures, which others, at the time of making such letters-patent and grants, shall not use; so as also they be not contrary to the law, nor mischievous to the state, by raising prices of commodities at home, or hurt of trade, or generally inconvenient; the said fourteen years to be accounted from the date of the first letters-patent, or grant of such privilege, but that the same should be of such force as they should be if the said act had never been made, and of none other."

(a) Manufactures newly brought into the realm from beyond sea are included, though they had been long practised there before; for the statute speaks of new manufactures within this realm, and was made to encourage new devices useful to the kingdom; and whether learned by travel or study, it is the same thing. 2 Salk. 447. A mere scientific principle does not come within the word "manufacture," and cannot be the subject of a patent. Boulton v. Bull, 2 H. Bl. 463; Hornblower v. Boulton, 8 Term R. 98; Rex v. Wheeler, 2 Barn. & A. 345; Hull v. Thompson, 2 B. Moo. 451.||

It hath been resolved, that no new invention, concerning the working of any manufacture, is within the meaning of this exception, unless it be substantially new, and not barely an additional improvement of an old one.(b)

3 Inst. 184. {See 2 H. Black. 488.} (b) As to the novelty requisite, see Rex v. Arkwright, Dav. Pat. Ca. 129; Manton v. Moore, Ibid. 333; Brunton v. Hawkes, 4 Barn. & A. 540; Thompson v. Forman, 2 B. Moo. 424; Rex v. Cutler, 1 Stark. Ca. 354, and see 3 Mer. 629; and that the invention must not have been previously used, see Wood v. Zimmer, 1 Holt. Ca. 58. If an improvement is made by adding new combinations to an old machine, the patent must be only for the new part. Bovill v. Moore, Dav. Pat. Ca. 361; 2 Marsh, 211.||

Also, it hath been holden, that a new invention to do as much work in a day by an engine as formerly used to employ many hands, is not within the said exception, because it is inconvenient, in turning so many labouring men to idleness.

3 Inst. 184.

Also, it seems clear, that no old manufacture, in use before, can be prohibited in any grant of the sole use of any such new invention.

3 Inst. 184.

And it is further provided, § 7, "That nothing in the said act contained shall extend to any grant or privilege, power or authority whatsoever, before the said act made, granted, allowed, or confirmed by any act of parliament, so long as the same shall continue in force."

Provided also, § 9, "That nothing in the said act contained shall be in anywise prejudicial to any city, borough, or town corporate within this realm, concerning any grants, charters, or letters-patent to them made, or concerning any custom used by or within them, or unto any corporations, companies, or fellowships of any art, trade, occupation, or mystery, or to any companies or societies of merchants within this realm, erected for the VOL. VII.-4

C

(B) How restrained by the Statute.

maintenance, enlargement, or ordering of any trade or merchandise, but that the same charters, customs, corporations, &c., and their liberties and immunities, shall be of such force and effect as they were before the making of the said act, and of none other; any thing before in the said act contained to the contrary in anywise notwithstanding."

And it is further provided, § 10, "That nothing in the said act contained shall extend to any letters-patent, or grants of privilege concerning printing, nor to any commission, grants, or letters-patent concerning the digging, making, or compounding of saltpetre, or gunpowder, or the casting or making of ordnance, or shot for ordnance; nor to any grants or letters-patent of any office erected before the making of the said statute, and then in being and put in execution, other than such offices as had been decried by proclamation; but that all such grants, &c., shall be of the like force and effect, and no other, as if the said act had never been made."

But it is enacted, by 16 Car. 1, c. 21, "That it shall be lawful for all persons, as well strangers as natural-born subjects, to import any quantities of gunpowder whatsoever, paying such customs and duties for the same as by parliament shall be limited; and that it shall be lawful for all his majesty's subjects of this realm of England to make and sell any quantities of gunpowder at his pleasure, and also to bring into this kingdom any quantities of saltpetre, brimstone, or any other materials for the making of gunpowder; and that if any person shall put in execution any letters-patent, proclamations, edict, act, order, warrant, restraint, or other inhibition whatsoever, whereby the importation of gunpowder, saltpetre, brimstone, or other the materials aforementioned, shall be any ways prohibited or restrained, he shall incur a præmunire."

And it is further provided by the said statute of 21 Jac. 1, c. 3, § 11, 12, "That nothing in the said act contained shall extend to any commission or grant concerning the digging, compounding, or making of alum or alummines, &c., nor concerning the licensing of the keeping of any tavern or selling of wines, to be spent in the mansion-house, or other place in the tenure or occupation of the party selling the same; and a further provision is made in the latter part of the statute, for some particular grants to particular corporations and persons, as "Newcastle-upon-Tyne," &c.

But it is said, that the said clause relating to alum was needless, because all such mines belong, of course, to the persons in whose grounds they are, and therefore no privilege concerning them can be granted but in the king's own ground.

3 Inst. 185.

See farther, as to Patents, tit. "PREROGATIVE" (F,) and Godson on Patents, passim;|| Fessenden on Patents; Carpmael on Patents; Collier on Patents; Davies' Collection of Cases on the Law of Patents; Drewry's Patent Law Amendment Act; Hand on Patents; Holroyd on Patents; Rankin's Analysis of the Law of Patents; Smith's Epitome of the Law of Patents; Perpigna on the French Law of Patents, originally written in English.

MORTGAGE.

(A) Of the Original and several Kinds of Mortgages: ||And herein of Mortgages by Deposit of Deeds.

(B) What shall be deemed a Mortgage, or an Estate redeemable.

1. What shall be deemed a mortgage.

2. What shall not be deemed a mortgage.

(C) of the Nature of a Mortgage, as to the distinct Interests of the Mortgagor and Mortgagee.

(D) Of the legal Performance of the Condition.

(E) Of the Equity of Redemption and Foreclosure: And herein,

1. Who may redeem, and by whom the Mortgage Money shall be paid.

2. To whom the Mortgage Money shall be paid.

3. Of the Precedency and Right of Redemption, where there are several Mortgagees or Encumbrancers: And herein of their Remedies against each other, as well as against the Mortgagor.

4. How far the purchasing in a precedent Mortgage or Encumbrance will protect such Purchaser, and entitle him to a Precedency of Redemption.

5. Of the Equity which must be done by him who would redeem to the Person against whom a Redemption is prayed.

6. At what Time the Redemption must be.

7. Of the Manner of Redeeming and Foreclosing.

(F) Mortgagees and their Assignees, how to account, and what Allowances to make.

(G) Of Mortgages of Personal Property.

(H) Of Disputes among Mortgagees.

(A) of the Original and several Kinds of Mortgages: And herein of Mortgages by

Deposit of Deeds.||

THE notion of mortgaging and redemption seems to be of Jewish extraction, and from the Jews derived to the Greeks and Romans: the plan of the Mosaic law constitutes a just and equal agrarian, that the lands may continue in the same tribes and families, and the people might not be diverted by any exotic acts and inventions from the exercise of agriculture, in which innocent employment they were to be continually educated; and therefore whoever were compelled by want to sell, could transfer no estate in the lands farther than to the next general jubilee, which returned once in fifty years; wherefore they computed till the jubilee, and according to the distance from thence such was the interest that could be transferred to the buyer. But the vendor had power at any time to redeem, paying the value of the lands to the jubilee. But though he did not redeem at the year of jubilee, yet the lands then came back again free to the vendor and his heirs.

Camæus, 11, 12. See Mr. Buller's note, Co. Lit. 205; Justin. Cod. 1. 4, t. 54, $ 2,7.1

But our notion of mortgaging and redemption seems to have come more 27

CA, Of the seren Kats of Margare

mmediately from the girl law, and therefore it wil be necessary beren 10 consider the distinctions in that law between puedges and angs rypoche

The pignus or pledge was, when any thing was obliged fr money jer, and the possession passed to the creditor.

& Pigma is derived from pugnum, the fist, because what is delvered in pledge is delivered in hand. Dig. 50, 16, 255, 2.7

The hypotheca was, when the thing was obliged for money lent, and the possession remained with the debtor. Now in case of goods pigorated, the ereditor was obliged to the same diligence in keeping them as he used about his own; so that if the goods were lost by the negligence of the treinor, an action lay as for a deposit; for the property being transtered to the creditor for a particular purpose, he was to keep them as his own.

Vide it. Bailment, and tit. Merchant and Merchandise, G. See also Pich. De Hypothéque; Poth. Mar. Contr. translated by Cushing, note 36. p. 145: Commercial Gode of France, translated by Rodman, note 52, p. 351; Med. Rep. mx Exncurque: 2. Browne's Cir, Law, 195; Ayl. Pand. 524; 2 Bell's Com. 25, 5th ed. ; 1 Law Trans; Story, Hailm. § zee; Houv. L. D. h. t.g

If the debtor did not redeem the thing pledged, the creditor was to foreclose the redemption of the debtor; and if the money was not paid, the creditor had his actio pignorilia, or hypothecaria, which, when he had pur sued, and obtained sentence thereon, he might sell the pledge as his own property. But there was this difference between the actio pignoris and hypothecaria; that the actio pignoritia was only on the person of the debtor to foreclose him, because the pignus was already in the possession of the erector; but the actio hypothecaria was tam in rem quam in personem, and was given ad pignus prosequendum contra quemcunque possessorem; because herein the creditor had not the possession of the pledge, but it remained to the debtor. Until sentence was obtained in these actions, the creditor could not obtain the property of the pledge; and if the money was paid before sentence, the pledge was subject to redemption; and where the same thing was pledged to several, those were said to be potiores in pignore to whom the things were first hypothecated.

Dignat, lib. 20, tit. 6; Corvin. 269, 270, 271.

If the money was tendered or paid to the creditor, the contract of pignorafirm was dissolved, and the debtor might have the pledge back as a thing lent. This seems to have introduced the notion among us of the debtor's right to redemption. And with them the usucaption or the right of prescriphow did not extinguish the pledge, unless a stranger had held it for thirty years, or the debtor had held it for forty years.

Ingest, lib. 26, tít. 6.

To the feudal law the rule was, Feudalia, invito domino, aut agnatis, non verte sulpiciuntur hypothecæ, quamvis fructus posse esse, receptum est. And the farm of this rule was, because the feud was filled with a tenant from the lord's original bounty, on whom he depended for his personal service m wat and peace; and therefore the feudiary could not obtrude a tenant im with within his leave, who might be less capable of those services; and an ha tenant could not originally alien without license, so he could not

Wu when a license of alienation was given about the time of H. 3, and