void ab initio: but suppose the same power had been 1853. reserved for breach of the condition that the patentee The QUEEN V. EASTERN Company. shall within a specified time inroll a specification of his invention: the letters patent would for this purpose be ARCHIPELAGO identical in their frame with the present; and, upon this supposition, could it be doubted that a scire facias might Campbell C. J be brought by the Crown to repeal the letters patent on the ground that there had been no sufficient specification of the invention inrolled, although there had been no prior revocation under the reserved power by the Queen or the Privy Council? I cannot find that this summary power ever has been exercised: and letters patent for inventions have been acted upon, and repealed, as if they contained no such proviso. But, to shew what the understanding of the profession has been, I may refer to a section, in Mr. Hindmarch's book on Patents, p. 431, entitled "Of the Revocation of a Patent by the Queen or Privy Council." The learned author, after pointing out the delay and expence occasioned by a scire facias, says: "But by this proviso the Queen or her Council may declare the cause of invalidity, and the declaration will of itself have the effect of revoking or avoiding the patent, and of course of rendering all further proof than the declaration itself unnecessary. The grant of a patent is a matter of grace and favour, and therefore as we have seen, the Crown may annex any conditions it pleases to the grant." This summary power, if exercised, is considered not to be necessary or ancillary to a scire facias, but to leave the power of proceeding by scire facias untouched and entire, as if the summary power expressly introduced had been omitted altogether from the letters patent. I think that letters patent giving a monopoly for an inven 1853. The QUEEN EASTERN Lord tion and letters patent creating a trading company, if framed in the same manner, must be construed on the same principles. With regard to the former, in practice ARCHIPELAGO much more facility is likely to be given to writs of scire Company. facias; for, if a monopoly is claimed for a manufacture Campbell C. J. which is not new, every member of the community may be considered as in some measure aggrieved, and entitled to a remedy. But there may be conditions, contained in letters patent creating a trading company, in which hardly an individual in the kingdom has the slightest interest, and the breach of which therefore may afford no reason for the Crown consenting to a scire facias at the prayer of a relator. In the latter class of cases much more caution is likely to be exercised; and we may conjecture that the Attorney General would not grant his fiat without consulting the Board of Trade, by whose advice the charter was granted. But, the scire facias having proceeded, I am of opinion that, in point of law, the reserved summary power of revocation is equally to be disregarded with respect to both classes of letters patent. I beg particularly to draw attention to the concluding clause (a) of the charter: "Provided always, and We do hereby direct and declare, that this Our royal charter is granted upon this express condition, that the said partnership, hereby incorporated, shall, at all times during the continuance of the said Corporation, abide by and conform to all and every the directions which may be given to the said Corporation by any one of the principal secretaries of state of Us, Our heirs or successors, as regards the intercourse and dealings by the said Company with any foreign state or power." Now, suppose the scire facias had alleged a flagrant breach of this (a) Recited antè, p. 317. express condition, whereby the friendly relations between 1853. this country and a foreign state have been disturbed: The QUEEN would the declaration still have been bad for not stating v. EASTERN Company. a revocation under the great seal or sign manual? There ARCHIPELAGO seems to be no doubt that, for breach of this condition, the Attorney General might at once have proceeded by Campbell C. J. scire facias: and between express and implied conditions in royal grants hitherto no distinction has been made as to the remedies of the Crown. I would further observe that, by the construction of this charter which seems to me to be the right one, the Queen cannot be deprived of the power of revoking the charter "under such terms and conditions" as Her Majesty may "think fit;" for the consent to the scire facias might have been refused, with a view to such a proceeding. We are bound to believe that no modified revocation of the charter, under the great seal or sign manual, has ever been in contemplation; and, on the contrary, that it is the wish of the Crown, for the reasons set out in the writ of scire facias running in the Queen's name, that the charter should be absolutely annulled and cancelled. I have only further to observe, in answer to an observation urged by the defendant's counsel, that I do not consider the fiat of the Attorney General any exercise of the summary power of revocation; and that my opinion rests upon this principle, that, as far as the proceeding by scire facias is concerned, the charter is to be construed and acted upon exactly in the same manner as if the summary power of revocation mentioned in it were annihilated. For these reasons I concur in the opinion expressed by my brother Wightman. As my brother Coleridge and my brother Erle are of a contrary opinion, so that the Court is equally divided, I presume that the rule will drop, and judgment will be given for the Crown. But 1853. The QUEEN V. EASTERN ARCHIPELAGO Company. Lord Campbell C. J. I have the satisfaction to think that a writ of error may be brought upon it; and, if it be erroneous, it will be reversed by a Court of superior jurisdiction. The Court being equally divided, the rule dropped. [November 11, 1852.] WILLIAM HENRY Trespass against the sheriff and S. for breaking a house and taking goods. Plea by S., severing in his pleadings from sheriff, alleging a writ of fi. fa, directed TRESPASS for breaking plaintiff's house, and seizing his goods. The defendant Slowman severed, in his pleadings, from the other defendants. Pleas by Slowman. 1. Not guilty. Issue thereon. 2. A writ of fi. fa., directed to the Sheriff of Middlesex, on a judgment recovered, in the Queen's Bench, by one to the sheriff, a warrant by the sheriff to S. as bailiff, and justification as bailiff. Replication, alleging a prior warrant to J. as bailiff, a seizure by J. under the writ, and payment by plaintiff to the sheriff in satisfaction of the writ, before the warrant to S. Rejoinder, traversing the prior seizure under the writ, and the payment to the sheriff. On the trial, the sheriff and S. appeared by different counsel. It appeared that the sheriff made a warrant to J.; that J. sent L., his general manager, to execute it, and L. cntered the plaintiff's house and seized his goods. Plaintiff sent to the office of the bailiff J., and there paid the amount to L., who, in J.'s name, withdrew the man in possession, and sent notice to the execution creditor that the money was ready. In the course of the same day J. died; and the money was not found. The sheriff, knowing the facts, made a fresh warrant to S, who scized plaintiff's goods and held them for several days. The jury did not agree as to whether L. actually paid the money to J. before his death; but they found that L. was authorized by J. to execute the warrant, and to receive the money. The Judge ruled that the jury might find for the plaintiff. The counsel for the sheriff excepted. The counsel for S. did not. The jury assessed the damages at 4007. The counsel for the sheriff moved for a new trial, on the ground that the damages were excessive. Held, that he might do so without abandoning the bill of exceptions, as this was a point which could not have been included in it; but that the jury were justified in giving vindictive damages in such a case against the sheriff; and the rule was refused. The counsel for S. moved for a new trial, on the ground of misdirection and that the damages were excessive as against S. Held, that there was sufficient evidence of a payment to J. the bailiff, under an execution de facto; and that, assuming the seizure by L. in J.'s absence to be irregular, still the payment was good: and the rule, on the ground of misdirection, was refused. But held that the damages were excessive as against S. alone; and a rule nisi was granted to raise the question what is the measure of damages as against joint wrongdoers, one of whom has acted under aggravating circumstances not affecting the other. An arrangement having been made, this rule dropped; and the question was not further discussed. Ideò quære. Thomas Baker against the plaintiff, endorsed to levy 2574. 11s., which writ was delivered to the other defendants as such sheriff: a warrant from the sheriff to the defendant Slowman and one Daniel Gover, who were bailiffs of the sheriff: and a justification of the trespasses under such warrant: verification. Replication: That, after the delivery of the writ to the sheriff, and before the making by the sheriff of the warrant to the defendant Slowman, the sheriff made a warrant to Emanuel Jones, then a bailiff; and that, by virtue of the said writ and warrant to him, the said Emanuel Jones entered plaintiff's house and seized his goods: that afterwards, and before any sale of the goods, and whilst Jones was in possession as such bailiff, the plaintiff paid the other defendants, Cotterell and Swift, as such sheriff, and they, as such sheriff, accepted and received, 270l. 13s. 3d., being the full amount which they were entitled to levy; and so the writ then became satisfied: verification. Rejoinder: That Emanuel Jones did not under the writ seize the goods, nor did plaintiff pay the sheriff, nor did the sheriff accept, the money modo et formâ: conclusion to the country. Issue thereon. The pleadings by the other defendants raised other issues of fact. On the trial, before Lord Campbell C. J., at the Middlesex sittings after last Trinity term, it appeared that the sheriff had made out a warrant and delivered it to Emanuel Jones, who was a bailiff. Jones's son, Edward Lewis (a), who in practice acted as the bailiff's clerk and head officer, went to the house of the plaintiff, (a) The real name of both the bailiff and his son was Levy: but the father was known by the name of Jones, and the son by the name of Lewis; and throughout the proceedings they were called by their reputed names. [1852.] GREGORY V. SLOWMAN. |