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learned of the law were advised with, and they gave their opinion, that no patent for acting plays, &c. could tie up the hands of a succeeding prince from granting the like authority when it might be thought proper to grant it (1)." In the late applications for a patent for a third winter theatre, this doctrine seems to have been admitted.

The Court has expressed itself as cautious how it affixes the Great Seal to a patent for a grant of Warden of the Fleet, as it might occasion a general escape of the prisoners (m).

It has been holden, that after a patent has passed the Great Seal, the time for enrolment cannot be enlarged without an act of parliament (n): if, however, the enrolment was delayed by mistake, a new patent might be obtained, and the officers, probably, induced to remit their fees (o).

It is established, that a patent may be obtained for an Improvement. If a person obtains a patent, he may afterwards, on the expiration of that patent, obtain another patent for an improvement on the first patent; but the second patent does not exclude the public from the use of the object of the first patent (p).

In a scire facias to repeal a patent, the venue cannot be changed from Middlesex to any other county (q).

XII. Coroners may be removed by the Chancellor, where they misbehave, or live out of the county; but

(1) Life of Cibber, p. 157.

(m) Col. Leighton's case,

2 Vern. 174.

(1) Ex parte Koops, 6 Ves. 99.

(0) Ex parte Beck, 1 Bro. C. C.578.

(p) Anon. 30 June, 1807. MS.

(q) The King v. Haine, 2 Cox, 235.

as theirs is an office of freehold, the Court will not, when the Coroner goes out of the way, order a writ to issue de coronatore exonerando, until there is an affidavit of service at the last place of his abode; nor does the authority of the court extend so far as to appoint another coroner; but the choice of the new one must be by a majority of freeholders (r).

XIII. A writ of Replevin (s) may be obtained, not merely where there has been a distress, as is generally imagined, but in all cases where a person takes goods out of the possession of the person who applies for the writ, upon his giving security, until it shall appear whether the goods are rightfully taken; but if A. be in possession of goods in which B. claims a property, Replevin is not the proper writ to try that right (†).

The Court will not, on motion, supersede a writ of Replevin, unless a fraudulent use is made of it (u).

XIV. A writ de cautione admittanda (x), will not be allowed to issue, unless it appears upon affidavit that the Bishop had refused to admit of caution (y).

XV. The writ de homine replegiando is an original, suable of right, on petition or motion, and returnable in a court of law (2). Two persons may join in suing out this writ (a). It is not supersedeable in Chancery; but the party must plead to it in

(r) 3 Atk. 184.

(s) For the doctrine as to a writ of Replevin, see F. N. B. 155.

() In re. Wilson, 1 Schoales & Lefr. 321, n. Ex parte Chamberlaine, 1 Sch. & Lefr. 320. Shannon v. Shannon, ib. 327.

(u) Anon. 2 Atk. 237; and

see Farrell v. Beresford, 1 Ball & Beatty, 328.

(x) See as to this writ, F. N. B. 145.

(y) Archbishop of York, v.

1 Vern. 119.

(z) Treblecock's case, 1 Atk. 633.

(a) F. N. B. 152. F.

the court where it is returnable (b). A wife, it has been determined, cannot obtain this writ against her husband (c).

XVI. The writ of melius inquirendo is another of the common-law writs issued by the Chancellor, and noticed in Fitzherbert's Natura Brevium (d).

In regard to this writ, it has been holden, that if a person is found by office not to be an alien, this is not conclusive on the Crown, but a melius inquirendum may issue; upon which, if the party is again found not to be an alien, the Crown is bound (e).

XVII. Writs of Ne exeat regno, writs of Injunction (f), writs of Certiorari, and by way of process, or for the enforcement of process, will be elsewhere considered.

XVIII. The Lord Chancellor has by the common law, jurisdiction to grant an habeas corpus, even in vacation; and Jenks's case, in which Lord Nottingham was of a contrary opinion, has been overruled (g).

XIX. It has been observed in an able controversial work (h), said to be composed by Mr. Yorke, (afterwards Earl of Hardwicke) (i), that there is no one species of all the judicial acts performed on the common-law side of the Court of Chancery, of which there are not instances of their being also per

(b) 1 Atk. 683.

(c) Atwood v. Atwood, Prec Ch. 492. Gilb. 149.

(d) P. 572; and see 36 Edw. 3. c. 13. 2 & 3 Edw.6. c. 8.

(e) Ex parte Duplesis, 2 Ves. Sen. 538, &c. and p. 555. (f) See post,

(g) See the elaborate judgment of Lord Chancellor Eldon

in ex parte Crowley, 1st Swanst. Jenks's case is not in print; but is to be found in the MS. reports of Lord Nottingham, a copy of which is in the possession of Lord Eldon.

(h) Judicial authority of the Master of the Rolls, p. 83. (2) See Bishop Hurd's Life of Warburton.

formed by the Master of the Rolls; but this has been a matter of much controversy; and it has been as positively said, and it seems to be the better opinion, that the Master of the Rolls has no original jurisdiction respecting matters arising on the common-law side of the Court of Chancery (k).

The view thus taken of the Chancellor's commonlaw jurisdiction is necessarily very limited; being, as before observed, confined to such parts of it as have come into discussion in the Court of Chancery. It would require a volume to particularize and describe it in its full extent.

(k) Lloyd v. Scott, 2 Dick. 576. See also, History of the

Chancery, and Legal Judicature, &c.

BOOK. II.

EQUITY JURISDICTION OF THE CHANCELLOR.

BY

Y the generality of the older writers, the Equity Jurisdiction of the Chancellor is described under three heads--Fraud, Trust, and Accident; but by the word Accident, they usually mean when a case is distinguished from others of the like nature by unusual circumstances (a).

It will, however, be more convenient to consider the Equity Jurisdiction of the Chancellor (except what relates to the Practice, which will be treated of hereafter) under the following heads:

I. ACCIDENT AND MISTAKE.

II. ACCOUnt.

III. FRAUD.

IV. INFANTS.

V. SPECIFIC PERFORMANCE OF AGREEMENTS.
VI. TRUSTS.

According, even to this enlarged classification of the subject, it may not be very obvious how the great multiplicity of doctrines arising out of the Equity Jurisdiction can be included; but on consulting the divisions and subdivisions of each head, it will be found, that without any very arbitrary arrangement, they include every branch of Equity.

(a) See Lucas, 1. 3. Prec. Ch. 231.

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