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brought by him bona fide, on his own responsibility, and not as the agent of Cutler and his partners, or any of them. The affidavits contained much conflicting evidence relating to the validity of Prosser's letters patent, and as to the manufactory of tubes by the Caledonian Company, according to the invention of Prosser. Prosser also stated that I. Van Wart, H. Van Wart, and Goddard were not in any manner personally interested in any question whatever respecting the validity of Prosser's letters patent; and I. Van Wart denied the truth of Prosser's statement, viz., that the writ had been sued out for or on behalf of the Caledonian Tube Company, for the purpose of depriving Prosser of the benefit of his invention in England. Prosser, in the first instance, applied to the Attorney General for an order to stay the proceed ings in the action and to enter a nolle prosequi; and the application having been refused by the Attorney General, Prosser on the 23rd of October 1848, obtained, on the Petty Bag side of the Court, an order of the Master of the Rolls, that the prosecutor, his attorney or agent, do attend his Lordship, to shew cause why all further proceedings should not be stayed, and why a nolle prosequi should not be entered in the action of scire facias on the following grounds, namely; first, that the prosecutor was an alien domiciled abroad; secondly, that Job Cutler and his partners, or some of them, having parts or shares in a Scotch patent for the same invention, had caused the present action to be brought for the purpose of unfairly prejudicing the rights and interest of the defendant R. Prosser to and in part or share of the Scotch letters patent therein mentioned, and diminishing the value thereof; thirdly, that the present action had been commenced for the purpose of unfairly prejudicing proceedings then pending in the Court of Session in Scotland, at the suit of the said defendant Prosser against the said Job Cutler and others; fourthly, that the bond given by the prosecutor and his sureties for the payment of costs in the action was insufficient in form, and that the sureties were insufficient.
properly be the prosecutor in the present action, an alien not being allowed to interpose in affairs of this realm ; that the writs of the Sovereign were placed in the hands of private individuals to enforce legal rights, on the ground that they had an interest in the subject-matter thereof; that the writ of habeas corpus was not confided to any person not having an interest therein, as in the Canadian Prisoners case (1), and the same law existed with reference to writs of mandamus and quo warranto-Sir Oliver Butler's case (2); that an alien was in this country deprived of many rights which a natural born subject possessed-Com. Dig. tit. ' Alien,' (C, 5); that alien friends could enjoy the rights of hospitality, and all rights flowing therefrom, and were entitled to personal actions, and might carry on trades not clothed with peculiar privileges, but would be liable to the forfeiture of their land, and could not maintain a real action; that the present writ was prosecuted for an unfair and improper purpose; that Irving Van Wart's bond was useless, inasmuch as he might be at New York whenever it might be put in suit, and both the sureties had been bankrupt; that one important circumstance was the existence of the litigation between the former partners Cutler and Prosser, and that this Court, in cases like the present, ought to interpose its aid as in The Queen v. Neilson (3); that a patent was the result of a bargain by the Crown acting on behalf of the public, and therefore every subject of the Crown was a party to the grant of the letters patent and was entitled to the writ; that the prosecutor in the present case could shew no interest in the patent, although he stated generally that he was injured by it; and that the condition of the bond was wrong, inasmuch as it ought to have provided for the payment of the costs respectively to each of the defendants (the defences of the parties being separate), and not the costs of the defendants generally as if they had defended jointly. The other authorities cited in support of the application were
Vin. Abr. tit. Prerogative,' vol. 17,
pp. 198 and 122. Co. Litt. 129, b.
Mr. M. D. Hill, in reply.
Cartwright v. Amatt, 2 Bos. & P. 43.
Brewster v. Weld, 6 Mod. 229. Mr. Turner and Mr. T. Webster, contrà, contended that the application was as groundless as it was novel; that the father, H. Van Wart, having been naturalized by act of parliament, the disabilities of the son were thereby removed ; that an alien had a right to the writ of scire facias as one of the public for the benefit of trade ; that the contract was not on part of the subject, but of the public at large, for the benefit of trade generally; that the prosecutor was in reality not an alien, but even if he were an alien, that circumstance would make no difference in the present case; that it was not material that the prosecutor should have an interest in the matter in litigation, but even if it should be held otherwise, the prosecutor had an interest; that the Scotch patent was of no value, because à confesso the English patent, which resembled the Scotch one in every respect, was in actual use for many years before the Scotch patent was taken out; that you could not unite two distinct inventions by different persons in the same patent as was done in the present case, though you might unite two inventions applicable to the same thing.
The following were the authorities cited on behalf of the prosecutor of the writ:Cocks v. Purday, 17 Law J. Rep. (N.s.)
S. c. 9 Law J. Rep. (N.s.) C.P. 12,
s.c. 15 Law J. Rep.(n.s.) C.P.270. De Carriere v. De Calonne, 4 Ves. 577. Colman v. the Eastern Counties Railway
Company, 10 Beav. 1 ; s. c. 16 Law J.
Rep. (N.s.) Chanc. 73.
$. c. 8 Law J. Rep. K.B. 366.
10 Law J. Rep. (N.s.) Q.B. 129. Brandon v. Nesbitt, 6 Term Rep. 23. Albretcht v. Sussmann, 2 Ves. & B. 323. Openheimer v. Levy, 2 Str. 1082.
The MASTER OF THE Rolls.-In this case a scire facias to repeal certain letters patent granted to Richard Prosser was issued under a fiat of the Attorney General in the usual manner. The patentee applied to the Attorney General, for the purpose of obtaining from him a direction that all further proceedings in the action should be stayed, or that a nolle prosequi might be entered. The application to the Attorney General was not successful, and in consequence thereof the patentee applies to this Court for an order that the proceedings in the action may be stayed, and in support of this application he offers the same reasons as were addressed to the Attorney General, to induce him either to stay the proceedings or to enter a nolle prosequi. The reasons alleged are to the effect, first, that the prosecutor, as he is called, being the person at whose instance the Attorney General authorized the writ to be issued, and who is permitted to prosecute the action, is an alien; secondly, that he has no special interest in the patent or the repeal of it, but is acting in collusion with other persons, with a view, as it is said, to oppress and injure the patentee; thirdly, that the security for costs given by the prosecutor is improper and insufficient.
I am of opinion that I have no authority to interfere in this matter. The issuing of a scire facias to repeal letters patent, is a proceeding of the Crown for the benefit of the public, adopted and authorized upon information that letters patent are void and of no force or effect in law, for some such reason as, that the conditions upon which the grant was made were not performed, that the grant was improperly made, or that, in effect, a monopoly supposed to be granted legally, has been granted illegally, and to the prejudice of the public or her Majesty's subjects. It has been said that the writ issues as of course, the fiat of the Attorney General for issuing it being granted as of course. I think this ought not to be the case ; and I should hope there is some error or exaggeration in the notion upon that subject which seems to prevail, as it appears to me that the Attorney General, when applied to for his fiat (without which the writ cannot issue), has an important duty to perform.
The Attorney General, who authorizes the issuing of the writ, bas the right and duty of controuling the conduct of the action. In the prosecution of it, he, or the person whom he permits to act for him, must conform to the rules of the Court in which the proceeding takes place; he must proceed regularly, both for the purpose of maintaining regularity, and further for the purpose of doing justice in the whole course of the proceeding adopted to determine the right.,
I apprehend all the Courts exercise over the Attorney General the same authority which they exercise over every other suitor; and further, that the Attorney General would not, any more than any other suitor, be permitted to prosecute any proceeding which was merely vexatious, or had no legal object; but the Attorney General prosecuting the action regularly, and being correct in such respects as these, conducts the proceedings on a scire facias according to his own judgment and discretion, and may, when he thinks fit, stay the proceedings, or entera nolle prosequi. The controul which the Attorney General exercises is subject only to the responsibility to which every public servant is liable in the discharge of his duty. I am of opinion that in the ordinary course of proceeding upon a writ of scire facias to repeal letters patent, it is within the discretion of the Attorney General to determine upon what or whose information, or on what terms or security, he will permit the action to be prosecuted, and that the exercise of his discretion, in the conduct of the action, is not subject to the controul of the Court in which the proceeding takes place.
For these reasons, and because the application appears to me to be an appeal from the discretion of the Attorney General to the discretion of the Court, which, as I think, possesses no such appellate jurisdiction, I am of opinion that I have no authority to interfere on the present occasion.
The case of The Queen v. Neilson was cited to shew the authority of the Lord Chancellor to stay the proceedings in a case of scire facias. In that case it was contended that the guardianship, as it was called, of the prerogative of the Crown, if taken out of the hands of the Attorney General, must be in the hands of the Lord Chancellor. I do not find that the Lord
Chancellor gave any countenance to that view of the case, and I think there is no ground for it. The superior advisers of the Crown may have, as I doubt not, authority to correct any error committed by the Attorney General, in giving or refusing commissions to issue or prosecute any prerogative writ or process, and the Lord Chancellor is one of these superior advisers, but when he is acting as a Judge, in the Court of Chancery, either on the common law or equity side, I am not aware of any authority he has in matters which depend on the discretionary exercise of the Royal prerogative,
In case of apparent hardship appearing to the Judge to arise from the enforcement of a legal right in proceedings before him, or hardship arising from failure or security for costs from the death of the relator or otherwise, I conceive the Judge may properly suggest to the Attorney General the propriety of considering the case, and may properly stay the proceedings, to give to the Attorney General an opportunity of deliberately considering the subject, but I conceive he has no authority to overrule that decision when formed. In that respect I think the Attorney General is subject to another authority, and it appears to me very material, upon this and all other occasions, not to confound judicial authority, properly so called, with ministerial authority, affected as it often is with quasi judicial authority. In the case of The Rueen v. Neilson, the Lord Chancellor seeins to have intimated that he might have authority in consequence of the circumstances being altered since the fiat was before the Attorney General. But what he said (and there was no decision upon the point) was principally founded on this, viz. that the litigation was in fact proceeding without any legal object; it was vexatious: and in that respect, I apprehend, if the Attorney General thought fit to persevere, it might be within the jurisdiction and the authority of the Lord Chancellor to stop such proceedings.
It seems to me remarkable, in the case of The Queen v. Neilson, that the Attorney General, who might have stayed the proceedings or entered a nolle prosequi, by his own authority at any time, was then present in court, and made no offer to stay Upon the whole I am of opinion that this application ought to be refused; and I think must be refused with costs.
CARR V. HENDERSON, Nov. 20.
Costs—Bankrupt Administrator-Assignees- quitable Mortgagee.
In a creditors' suit against the administrator of an intestate, and against the assignees of the administrator, who afterwards became bankrupt, no costs of the suit were given to either the bankrupt or his assignees. Held, also, that the assignees were not entitled to the costs of a petition which had been served on them by an equitable mortgagee, not a party to the suit, praying payment to him out of court of monies arising from the sale of the mortgaged estate, which were not sufficient to pay the principal and interest monies, and to the sale of which he had consented.
what was suggested, if not admitted, to be a vexatious proceeding, but rather seems to have asserted the propriety of the interference by the Lord Chancellor. However, the only order made in the case of The Queen v. Neilson was that the application should stand over till after a decision which was expected in the House of Lords, and after giving the case my best attention, it does not appear to me to be any authority for the interference of this Court upon the present occasion.
Being of opinion that I have no jurisdiction in this case, it is unnecessary, and perhaps not proper, for me to express any opinion upon the reasons on which the application is founded, but having paid necessarily some attention to the subject, I hope I may be excused for saying I see no reason to doubt the propriety of the decision arrived at by the Attorney General, on the two principal points of objection. I need not now consider at all the duty which the Crown has to protect legal patentees against improper litigation. There can be no doubt it is the duty of the Crown to protect the public from illegal monopoly. An illegal monopoly is a public grievance, and the able argument addressed to me in support of this application has failed to persuade me that the Crown having been informed of such a grievance, and having the power and duty to remove it if it be such, ought to be disabled from directing the necessary proceedings to ascertain the truth, because the information was given by an alien, or by a person who had no special or direct interest in the matter, or was endeavouring to promote the interest of some other person, or was actuated by some improper motive. With respect to the alleged insufficiency or impropriety of the security, I think the practice of taking security is highly beneficial and important, but it is not founded on any law or rule of court, but seems to have been very properly introduced by the authority of the Attorney General alone, almost within living memory. There is no instance whatever of the Court having interfered upon the subject, and I cannot doubt but that if it be shewn to the Attorney General that the security has become or is insufficient, he will stay the proceedings till it is made good.
This was a creditors' suit, and the Master had reported a balance of 4901. 178. 11d. due from the estate of the defendant Henderson, the administrator, who had become bankrupt, to the estate of his intestate. His assignees were defendants; and the question on further directions was, whether the bankrupt or his assignees were entitled to be paid their costs of the suit, or the costs of a petition served on the assignees by an equitable mortgagee of the intestate's estate, who was not a party to the suit, but had consented to a sale thereof. The petition prayed payment out of court to the equitable mortgagee of the monies arising from the sale of the mortgaged premises, which were not nearly sufficient to satisfy the principal and interest monies found due to the mortgagee.
Mr. Walpole and Mr. William Morris, for the plaintiffs, insisted, that neither the bankrupt administrator nor his assignees were entitled to be paid any of their costs of the suit, and cited
Dawson v. Parrot, 3 Bro. C.C. 236. Littlehales v. Gascoyne, Ibid. 73. Franklin v. Frith, Ibid. 433.
mentioned cause, and the costs of the plaintiffs in the cause of Stones v. Henderson, the same should be apportioned between the two sets of plaintiffs. And it was further ordered, that the fund in court, arising from the sale of the mortgaged premises, should be paid to the equitable mortgagee, and no costs were given to the bankrupt administrator, or his assignees, of this suit or of the petition that had been served on the latter.
Mr. Roupell and Mr. Lewin, for the assignees of the bankrupt administrator, contended, that the assignees were necessarily present as representing the estate of the intestate; and that they had nothing to do with the costs of the bankrupt administrator; and in supporting the Master's report, which was favourable to the creditors, the assignees did their duty to that body; that it was for the convenience of the plaintiffs that the assignees should be made parties to the suit, for the purpose of facilitating the proceedings in it, and therefore they ought to have their costs. They also sought to have paid to them by the equitable mortgagee, the costs of the petition with which they had been served, seeking payment to the equitable mortgagee of the monies arising from the sale of the mortgaged estate, to the sale whereof he had consented; and cited Samuel v. Jones (1).
Mr. J. J. Jervis, for the equitable mortgagee, insisted that he was bound to serve the parties representing the estate with the petition, and that the assignees were not entitled to any costs against his client.
Mr. Walpole, in reply, cited Kenebel v. Scrafton (2).
HENDERSON V. KENNIAug. 5. S COTT.
Legacy-Vesting—Legatee dying before en entitled to Legacy.
Bequest of personal estate to A. for life, and after her death to the testator's brothers and sisters ; but if any of the brothers and sisters should die before they became entitled to their shares, the shares of them so dying to go to their children. The testator left five brothers and sisters; two of whom died in the lifetime of A :-Held, that the word “ entitled” had reference to the death of the testator, and not to the death of A, and that the shares had therefore vested absolutely in the brothers and sisters, and that the representatives of each of them who had died were entitled to a fifth of the fund.
The MASTER OF THE Rolls made an order, giving the costs of the suit to the plaintiffs as between solicitor and client, and also giving to the plaintiffs in a cause of Stones v. Henderson, the costs of their attendances before the Master in this suit, under the liberty given to them by a certain order made in the cause of Stones v. Henderson, and in this cause as between solicitor and client, including the costs of the plaintiffs in Stones v. Henderson, the costs of or occasioned by a successful exception taken by William Benson Stones, David Carr, and William Carr, as creditors of the intestate, on the 7th of May 1846, and on which an order was made in this cause on the 22nd of July 1846, and also the costs of the hearing on further directions and consequent thereon; and it was further ordered that in case the fund in court should not be sufficient to pay the total amount of the costs of the plaintiffs in the above
(1) 2 Hare, 246 ; 8. c. 12 Law J. Rep. (N.s.) Chanc. 496.
(2) 13 Ves. 370.
Laurence Henderson, by his will, dated in 1803, bequeathed his personal estate to his wife for life. The will then proceeded, as follows:-"And from and immediately after her death I bequeath all my personal estate and effects whatsoever and whereso. ever, and of what nature and kind soever the same may be or consist, unto my brothers and sisters, their executors, administrators and assigns, as their own proper goods and chattels, from thenceforth for ever, share and share alike; and in case any of my said brothers and sisters shall happen to die before they become entitled to their respective shares, then I give and bequeath the share of him or them so dying to or amongst the children of such deceased brother or sister, their heirs, executors, administrators, and assigns, as their own proper goods and chattels, from thenceforth for ever share and share alike."