1853. The QUEEN 7. EASTERN Lord facias should have averred such a prior revocation. We are called upon to say that the Crown, by the proviso, instead of increasing its power, imposed upon itself a ARCHIPELAGO disability to proceed by scire facias without first revoking Company. and making void the charter by writing under the great Campbell C. J. seal or sign manual. In the first place, it is very difficult to imagine how such a proceeding to cancel letters patent could be conducted; and no instance of such a proceeding can be discovered, although a similar power of summary revocation has been contained in all letters patent granted for inventions since the passing of the Statute of Monopolies (21 Ja. 1. c. 3.). It is admitted that by equivocal words the power of the Crown cannot be abridged: but it was urged at the bar that the con- struction of the defendants protects the power of the Crown, by preventing private prosecutors from repealing the charter under a scire facias for an unintentional and immaterial breach of a condition which the Crown would be willing to overlook. This argument seems to me to be founded upon the fallacy that any of the Queen's subjects may at pleasure sue out a scire facias to repeal letters patent. No such scire facias can be sued out without the consent of the Crown, given through the agency of the Attorney General. Although I myself had the honour to fill this office for more than seven years, I will not venture to rely on my own knowledge of the existence of the Attorney General's authority, or my own recollection of the manner in which it is exercised. In note (4) to Underhill v. Devereux (a), where the decisions upon scire facias to repeal letters patent are collected, it is laid down that "no scire facias can be sued out in this case until the King's attorney general grants his fiat (a) 2 Wms, Saund. 72 u (6th ed.). to take it out." In Mr. Campbell Foster's valuable book 1853. on Scire Facias (p. 249), he thus states the practice: The QUEEN The prosecutor, or his solicitor, having prepared a V. EASTERN Lord draught of the writ, as directed by the above statute, ARCHIPELAGO Company. must lay a fair copy of it before the Attorney General, together with a statement of the facts on which it is Campbell C. J. founded, in order to obtain his fiat, which must be filed in the Petty Bag Office, to authorize the issuing of the writ, and without which the writ cannot be sealed:" and, at p. 250: "It has been the practice of Attorneys General only to grant the requisite fiat to enable the prosecutor to sue in the name of the Queen, on condition that he enters into a bond of indemnity, to be taken in the name of the clerk of the Petty Bag, with two sufficient sureties in ordinary cases, and for such sum as the Attorney General shall name, to pay the patentee the amount of his costs taxed as between attorney and client, if the action against him should fail." Mr. Hindmarch, in his Treatise on The Law relating to Patent Privileges, &c., p. 387, adds: "This security was first required to be given by Sir Archibald Macdonald, when he was Attorney General about the year 1790, the amount of the bond then required being 500l. But since the year 1836, when Sir John (now Lord) Campbell was Attorney General, the amount has been 10007. in ordinary cases. The amount of the bond in other cases is entirely discretionary in the Attorney General, who, will, in extraordinary cases, order security to be given to a sufficient amount to cover the probable extent of defendant's costs in defending the action." Stat. 11 & 12 Vict. c. 94. s. 26. requires the name of the prosecutor to be inserted in the writ of scire facias; but with a proviso, " that nothing in this Act contained shall authorize the issuing 1853. The QUEEN EASTERN ARCHIPELAGO Company. Lord of any such writ of scire facias aforesaid without the fiat or leave of her Majesty's Attorney General." It likewise appears, by these books of practice, that the defendant may be heard to shew cause before the fiat is granted, and that, after the fiat has been granted and the scire Campbell C. J. facias has been sued out by the relator, the Attorney General preserves a controul over the action, as he does over a charity information where there is a relator; and he may order a nolle prosequi to be entered as to any suggestion which he thinks is unfairly introduced. See Webster's Reports &c. on Letters Patent, p. 671, note (i). The defendant's counsel then rely upon dicta, to be found in the books, that this fiat is "matter of right." It is matter of right to all who are justly entitled to it; but those only are justly entitled to it who suffer a prejudice by the letters patent, and the breach of the condition upon which they have been granted. No mandamus would lie to the Attorney General to grant his fiat for a scire facias. If he were improperly to withhold it, he might be questioned in Parliament; and he might be punished for his misconduct. But, upon such a complaint being brought forward against him, if he could shew that the applicant had no interest whatever in the subject matter, and was only actuated by spleen or malevolence, and that it was for the public advantage that the letters patent should not be assailed, instead of being punished he would be applauded. It is then said that extreme hardship would arise to this Company, and other companies incorporated in the same manner, if a scire facias actually to cancel the charter were to issue for the breach of some unimportant condition, instead of the milder power being exercised of altering the charter. We know nothing of what passes before the Attorney General when he grants his fiat for a scire facias: but we must suppose that he 1853. V. EASTERN Company. Lord has duly exercised his power. It is possible that, in this The QUEEN case, evidence was laid before the Attorney General of the gross fraud respecting the false certificate that the ARCHIPELAGO capital of 50,000l. had been paid up, which is suggested in the scire facias, and which was proved to the satisfaction Campbell C. J. of the jury; whereby there was a failure of consideration, and the object of granting a charter, to work mines abroad with capital to be subscribed at home, may have been entirely defeated. At any rate the possibility of power being abused is no conclusive argument against its existence; for, under every form of government, there must be lodged in certain functionaries discretionary powers to be exercised under a responsibility for the abuse of them, without allowing the validity of the act done to be judicially questioned. In this case we are bound to presume that the scire facias proceeded with the approbation of the advisers of the Crown, and not in contravention to their wishes or intentions. It seems to me, that to construe the proviso giving a power to the Crown summarily to revoke the charter as a restriction upon the power of the Crown to proceed by scire facias would be contrary to the rules of law and to the intentions of the parties. The charter may be construed so as in all its parts to work harmoniously, by supposing that the summary power reserved by the proviso is cumulative or additional, leaving the remedy by scire facias to remain as if the proviso had never been introduced. The notion of a scire facias after a revocation by writing under the great seal or sign manual never seems to have been contemplated, and is wholly inconsistent with the power of modifying the charter; for upon scire facias the judgment is quòd cancelletur. That the exercise of the VOL. I. 2 B E. & B. 1853. V. EASTERN Company. Lord summary power was to be final is further shewn by the The QUEEN power, under the proviso, to the Queen, at any period after the expiration of twenty one years, by writing ARCHIPELAGO under the great seal or sign manual, to revoke and make void the charter or to modify it as she should Campbell C. J. think fit, without any breach of any condition or any default whatsoever, and without any possibility of following up the revocation by scire facias. These are extraordinary powers, enabling the Crown to put an end to a franchise without a scire facias: but it was for the grantees to consider whether they would accept a charter reserving powers to the Crown which without this express proviso it would not possess at common law. It was urged, however, that the implied power of proceeding by scire facias in the usual manner must be understood to have been renounced by the Crown, when the proviso to proceed in another manner is expressly mentioned. This argument, if valid, would prevent a scire facias from being brought to repeal a patent for an invention, at least until it has been revoked by the Queen or six of her Privy Council. In every such patent there is a proviso that, if the invention is not new, "then upon signification or declaration thereof to be made by Us, Our heirs or successors, under Our or their signet or privy seal, or by the Lords and others of Our or their Privy Council, or any six or more of them under their hands, these Our letters patent shall forthwith cease, determine, and be utterly void to all intents and purposes, anything hereinbefore contained to the contrary thereof in any wise notwithstanding;" Hindmarch on Patents, 62. The condition here mentioned, on which this summary power may be exercised, may be considered a condition precedent, the breach of which makes the letters patent |