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king's warrant (a) for a sci. fa., which used to be granted Queen's Bench. on memorial; a practice since discontinued; note (t) to Underhill v. Devereux (b). And, now, by stat. 5 & 6 W. 4. c. 83., if judgment were suspended, the patentee might, even in this stage of proceedings, enter a partial disclaimer according to sect. 1, or, by petition heard before the Judicial Committee of the Privy Council, obtain a confirmation of the patent, or a new grant, under sect. 2. In Jeffreson v. Morton (c), to scire facias on a recognizance in Chancery, some defendants pleaded to issue and others demurred; and the entire record was transmitted to this Court, which not only tried the issues, but gave judgment on the demurrer: and it was held that the Court had done rightly, and that the record ought not to have been sent back to the Court of Chancery for hearing on the demurrer. But there no part of the proceedings remained in Chancery; the whole matter was transmitted to the King's Bench; and that Court had power to dispose of it in every respect. Reference was made in that case to the opinion of Lord Coke, 4 Inst. 80., that "after trial," the record is "to be remanded into the Chancery, and there judgment to be given;" and, in opposition to it, The Bishop of Lichfield and Coventry's Case (d) was cited: but, there, a scire facias had been brought on a recognizance in Chancery, and the proceedings, and the record of the recognizance also, were transmitted to the King's Bench

(a) Reciting that parties must be given to understand that “neglects of duty are not to be slightly passed over," and that "the said J. W." (the patentee) "will have an opportunity of making his defence upon a trial, and even after a conviction, it will still be in our power to suspend the entering of any judgment to vacate the patent."

(b) 2 Wms. Saund. 72 x., 6th ed.

(d) Yearb. Mich. 24 Ed. 3. f. 73 B, pl. 91.

(c) 2 Saund. 23.

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for trial of an issue: the plaintiff was nonsuited, and brought a new scire facias in the King's Bench: and an objection that the proceeding should have been in Chancery, the plea in the King's Bench being terminated by the nonsuit, was over-ruled, because the record of the recognizance and plea had been transmitted entire to this Court, and there remained no record in the Court of Chancery. And in Jeffreson v. Morton (a) the Court, in adopting the rule that when a record comes into the King's Bench it is never removed thence, must have contemplated those cases in which the whole matter of record is carried to that Court and can be there dealt with. This distinction is supported by the placita in 6 Vin. Abr. 548. 550., tit. Court of King's Bench (G), pl. 1., pl. 10. The statement that a record, once brought into the Queen's Bench, "shall not in any case be sent back to the Chancery" clearly goes too far. Many authorities shew that, for some purposes, records are so sent back: Bro. Abr. Recorde & matter de ceo, pl. 79.; Bro. Abr. Conusaunce, pl. 61.; Keilwey, 93 b., 94 b. pl. 10.; for some not, Bro. Abr. Judgementes, pl. 135. After trial of a traverse on an inquisition of lunacy, the proceedings go back to the Court of Chancery as of course, the Court which tried not having authority to carry them farther. Lord Coke, treating, in 4 Inst. 80., of the jurisdiction of the Lord Chancellor, says that "he hath power to hold plea of scire facias for repeal of the king's letters patents, of petitions, monstrans de droits, traverses of offices, partitions in Chancery, of scire facias upon recognizances in this Court", &c.; and then adds: "In these if the

(a) 2 Saund. 27

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parties descend to issue, this Court cannot try it by Queen's Bench. jury, but the Lord Chancellor or lord keeper delivereth the record by his proper hands into the King's Bench to be tried there; because for that purpose both Courts are accounted but one, and after trial had to be remanded into the Chancery, and there judgment to be given." In the Case of Sackvile College (a) Hale C. B. says (b): "Judgment upon an issue tried in a scire fac. to repeal a patent in B. R. is not there given, but the record is to be returned into this Court" (Chancery). The placita, Fitz. Abr. Peticion, pl. 19, and 1 Roll. Abr. 534. tit. Court (G), pl. 1. agree with the view now taken of the practice. In the former case, on scire facias to repeal a charter by which the king granted a manor, the record was sent into the King's Bench, and a trial had at nisi prius, and verdict found for the demandant, and, because the charter was in the Chancery, the whole was remanded thither for judgment. In the latter case, "It was shewn to Parliament that a manor was holden of a barony, of a common person, and afterwards the manor was forfeited to the King, and he granted it to another to hold of himself per servitium militare, ubi per legem deberet dici, tenendum de capitalibus dominis feodi illius, &c. et petit that the said charter be amended in the said clause. Whereupon there was a plea in Chancery, and found by the escheator et per juratam there to be true. Et quia judicium super veredicto prædicto et executio judicii pertinent ad officium Chancellarii facienda, ideo mittitur in Chancellariam, et datus est dies usque &c." In Digges's Case (c)

(a) T. Ray. 154. 177.

(b) P. 178,

(c) 1 Rep. 157 a.

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and Mark Steward's Case (a), cited in Jeffreson v. Morton (b), and in Sarnfield's Case (c), where, on scire facias out of Chancery, the Court of Queen's Bench gave The QUEEN. judgment, there was no cancelling of any record remaining in the Court of Chancery. The same remark applies to Bro. Abr. Judgementes, pl. 135 (citing Yearb, Mich. 21 H. 7. 35 B. pl. 44.), and to Keilwey, 93 b. pl. 10. To adjudge letters patent void (which it is unnecessary to deny that the Court of Queen's Bench may do) is very different from the ulterior process of ordering them to be cancelled, which act of cancelling belongs peculiarly to the office of Lord Chancellor, as is pointed out in 4 Inst. 88., and in the argument of Mr. Yorke in Rex v. Hare (d). And in Bro. Abr. Jurisdiccion, pl. 53, it is said that the Chancery is no Court of record, except to repeal patents of the King on scire facias, and on certain pleas between privileged parties. The particular and limited jurisdiction of the Court of Chancery appears also from Bro. Abr. Barre, pl. 45., 1 Roll. Abr. 372. tit. Chancery (F), pl. 1., 4 Vin. Abr. 381. tit. Chancery (F): and an exercise of it with respect to a patent appears in Hunt v. Coffin (e). There is no instance of the actual annulling of letters patent by any other authority; though, possibly, under some circumstances, the Sovereign in privy council might declare them void and direct them to be revoked; and the Court of Queen's Bench may, as has been already observed, make a similar adjudication. It is, indeed, said in 4 Inst. 72. that a scire facias to repeal a patent

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of the King may be brought in the King's Bench; but Queen's Bench. for this 3 H. 4. 7. is cited, the reference intended being to Yearb. Mich. 3 H. 4. 6 A. pl. 29., where it appears that a scire facias was brought in K. B., and it was held that two writs of scire facias (one in K. B. and one in Chancery) might be brought at once to repeal the same patent. The placitum is given in Bro. Abr. Briefe & abatement de briefe, pl. 104, with a quære. And in Bro, Abr. Petition, pl. 11, (abridging Yearb. Hil. 21 Ed. 3. 47 A. pl. 68.) it is expressly stated that scire facias to repeal the King's patent can be brought nowhere but in Chancery. In Jenk, 3d Cent. 134, case 74, it was said that "the King's Bench cannot award a scire facias against the patentee;" and the reason was given, which furnishes a key to all the authorities, that "that Court has not the record." It appears from that case, and Jenk. 3d Cent. 133, case 71, that that which goes from Chancery to the Queen's Bench is, properly, a transcript, not a record. Rex v. Butler (a) shews that the jurisdiction of the Court of Chancery on scire facias to repeal a patent is founded upon the possession that Court has of the record. Brewster v. Weld (b) may be cited as inconsistent with the doctrine now insisted upon; but the writ there appears to have been made returnable in the King's Bench, not in the Court of Chancery, as the writ is here. The object of the return into Chancery is that the patent may be there dealt with according to the particular jurisdiction of that Court: and therefore the writ here (framed agreeably to the precedent in Rex v. The Governor &c. of Copper-Miners