were a declaration in a personal action, and such matter as would be sufficient ground of answer or defence in point of law or fact to such petition on the behalf of the crown may be alleged * on behalf of any person called on to plead or answer thereto (z). [*384] The practice and course of procedure in a suit in equity or personal action between subject and subject, so far as applicable, shall be observed in prosecuting a petition of right under the act (a). And the judgment for the suppliant now is, that he is entitled to such relief, and upon such terms and conditions (if any), as the court shall think just (b). Judgment having been given for the suppliant, any judge of the court in which the petition was prosecuted will, upon application on behalf of the suppliant, after the lapse of fourteen days from the making, giving, or affirming of such judgment, certify to the commissioners of the treasury, or to the treasurer of her majesty's household, as the case may require, the tenor and purport of the same, in the form given by the act (c), and thereupon the commissioners of the treasury will pay the amount of monies and costs, due under the judgment to the suppliant, out of any funds in their hands for the time being legally applicable thereto, or which may be afterwards voted by parliament for that purpose, provided such petition relate to any public matter. But in case the petition relate to any private property of or enjoyed by her majesty, or any contract or engagement made by or on behalf of her majesty, or any matter affecting the queen in her private capacity, a certificate as aforesaid must be sent to the treasurer of the queen's household, and the amount to which the suppliant is entitled will be paid him out of such funds or monies as her majesty may direct to be applied for that purpose (d). (585) II. Injuries to the crown. How remedied. 1. By common law actions. II. The methods of redressing such injuries as the crown may receive from the subject are, [* 385] 1. By certain common law actions, such as quare * impedit (e) or trespass (f), the bringing and maintaining of which have been deemed to be not inconsistent with the dignity of the crown. It would, however, be alike tedious and difficult to run through every minute distinction that might be gleaned from our ancient books with regard to this matter; nor is it in any degree necessary to do so, as much easier and more effectual remedies are usually afforded by certain prerogative modes of process, which are peculiarly confined to the sovereign. 2. By inquisition or inquest of office: which is an inquiry made by the queen's officer, her sheriff, coroner, or escheator, virtute officii, or by writ to 2. By inquest of him sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the queen to the possession of lands or tenements, goods or chattels (g). This is done by a jury of no determinate number; being either twelve, or less, or more; who, ex. gr., office, &c. (585) See ante, note 79. See, also, U. S. v. McLemore, 4 How. (U. S.) 286; Hill v. U. S., 9 id. 386. inquire whether the tenant for life of the crown died seised, whereby the reversion accrues to the crown: whether A., who held immediately of the crown, died without heirs; in which case the lands belong to the sovereign by escheat: whether B. be attainted of treason; whereby his estate is forfeited to the crown or whether C., who has purchased lands, be an alien; which may be another cause of forfeiture. These inquests of office were more frequent during the continuance of military tenures amongst us than they are at present; for then, upon the death of any of the king's tenants, an inquest of office was held, called an inquisitio post mortem, to inquire of what lands he died seised, who was his heir, and of what age, in order to entitle the sovereign to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these inquiries the court of wards and liveries was instituted by statute 32 Hen. 8, * c. 46, which was abolished at the restoration of king Charles II., [* 386] together with the oppressive tenures upon which it was founded. With regard to other matters, the inquests of office still remain in force, and are taken upon proper occasions; not only in regard to lands, but also to goods and chattels personal, as in the case of wreck, when appertaining to the crown, treasure-trove, and the like; and to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se, or one killed by chance-medley, is not only with regard to chattels, but also as to real interests, thus far an inquest of office, that if they find the treason or felony, the crown is thereupon, by virtue of this office found, entitled to its forfeitures (h). These inquests of office were anciently devised by law, as an authentic means to give the king his right by solemn matter of record; without which he in general could neither take nor part from anything (i); it being essential for the liberties of England, and greatly for the safety of the subject, that the crown may not enter upon or seize any man's possessions upon bare surmises without the intervention of a jury (k). It was however particularly enacted by the statute 33 Hen. 8, c. 20, that, in case of attainder for high treason, the king should have the forfeiture instantly, without any inquisition of office. And, as the crown has (in general) no title at all to any property of this sort before office found, therefore the statute 18 Hen. 6, c. 6, had provided that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, should be void. And, by the Bill of Rights at the Revolution, 1 Will. & M. st. 2, c. 2, it is declared that all grants and promises of [* 387] fines and forfeitures of particular persons before conviction (which * is here the inquest of office) are illegal and void; as indeed was the law of the land in the reign of Edward III. (7). With regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have had a right to enter; and the king shall receive all the mesne or intermediate profits from the time that his title accrued (m). As on the other hand, by the articuli super cartas (n), if the king's escheator or sheriff seize lands into the king's hand without cause, (h) Post, vol. iv. (i) Finch, L. 82. (k) Gilb. Hist. Exch. 132; Hob. 347. (7) 2 Inst. 48. (m) Finch, L. 325, 326. upon taking them out of the king's hand again, the party shall have the mesne profits restored to him. May be traversed. In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses new facts not found by the office, and his monstrans de droit, which relies on the facts as found: but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial: yet still, in some special cases, he has no remedy left but a mere petition of right (0). These traverses, as well as the monstrans de droit, were greatly enlarged and regulated for the benefit of the subject, by the statutes before mentioned, and others (p). And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing is considered as the plaintiff (g); and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, &c. 3. Where the crown has unadvisedly granted anything by letters patent, which ought not to have been granted, or where the patentee has done an act that amounts to a forfeiture of the grant, the remedy to repeal Chancery to re- the patent is by writ of scire facias in chancery, as we 8. Scire facias in peal patents. 4. Information. * have before stated (r). [*388] 4. An information on behalf of the crown, filed in the exchequer by the attorney-general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for a personal wrong committed in the lands or to other possessions of the crown (s). It differs from an information filed in the court of queen's bench, of which we shall treat in the next Volume, for this is instituted to redress a private wrong, by which the property of the crown is affected; that is calculated to punish some public wrong committed by the defendant. An information in the exchequer is grounded on no writ under seal, but merely on the intimation of the attorney-general, who "gives the court to understand and be informed of" the matter in question; upon which the party is put to answer, and trial is had, as in a suit between subject and subject. The most usual informations are those for intrusion and for debt: intrusion, for any trespass committed on the lands of the crown, as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for money due to the crown, or for a forfeiture so due upon the breach of a penal statute. The procedure by information is used to recover a forfeiture, occasioned by trangressing a law enacted for the establishment and support of the revenue: enactments which regard mere matters of police and public convenience, being usually left to be inforced by common informers, in qui tam actions. There is also an information in rem, when goods are supposed to have become the property of the crown, and no man appears to claim them, and to dispute its title, as anciently in the cases of treasure-trove, wrecks, waifs, and estrays, seized by the king's officer for his use. Upon such seizure an information was usually filed in the *exchequer, and thereupon a proclamation was made for the owner [*389] (if any) to come in and claim the effects; and at the same time there (0) Finch, L. 324. (p) See stat. 34 Edw. 3, c. 13; 36 Edw. 3, c. 13; 2 & 3 Edw. 6, c. 8. (9) Law of Nisi Prius, 211, 212. (r) Ante, pp. 32, 33. (8) Moor, 375. issued a commission of appraisement to value the goods in the officer's hands; after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condemned to the use of the crown (t). And when, in later times, forfeitures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, similar process was adopted in order to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice. 5. The ancient writ of quo warranto was in the nature of a writ of right for the crown, against him who claimed or usurped any office, franchise, or liberty, to inquire by what authority he supported his claim, in 5. Quo warranto. order to determine the right (u). It lay also in case of non-user or long neglect of a franchise, or mis-user or abuse of it; being a writ which commanded the defendant to show by what warrant he exercised such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. This writ was originally returnable before the king's justices at Westminster (x); but afterwards only before the justices in eyre, by virtue of the statutes of quo warranto, 6 Edw. 1, c. 1, and 18 Edw. 1, st. 2 (y); but when those justices had given place to the king's temporary commissioners of assize, the judges on the several circuits, this statutory provision lost its effect (z); and writs of quo warranto (if brought at all) had to be prosecuted and determined before the king's justices at Westminster. In case of judgment for the defendant, he had an allowance of his franchise; but in case of judgment for the crown, for that the party was entitled to no such franchise, * or had disused or abused it, the franchise was either seized into the [* 390] king's hands, to be granted out again to whomsoever he should please; or, if it were not such a franchise as might subsist in the hands of the crown, there was merely judgment of ouster, to turn out the party who had usurped it (a). The judgment on a writ of quo warranto (being in the nature of a writ of right) was final and conclusive even against the crown (b). Which, together with the length of its process, probably occasioned that disuse into which it fell, and introduced the more modern method of prosecution, by information filed in the court of queen's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for usurpation of the franchise, as to oust him, or seize it for the crown; but it has long been applied to the mere purpose of trying the civil right, seizing the franchise or ousting the wrongful possessor; the fine being nominal only. During the violent proceedings that took place towards the end of the reign of King Charles II., it was among other things thought expedient to newmodel most of the corporate towns in the kingdom; for which purpose many of those bodies were persuaded to surrender their charters, and informations in the nature of quo warranto were brought against others, upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them. And the consequence was, that the liberties of most of them were seized into Information in the nature of quo warranto. (t) Gilb. Hist. of Exch. c. 13. (z) 2 Inst. 498. (a) Cro Jac. 259; 1 Show. 280. (b) 1 Sid. 86; 2 Show. 47; 12 Mod. 225. the hands of the king, who granted them fresh charters with such alterations as were thought expedient; and during the state of anarchy thus caused, the crown assumed to name their magistrates. This exertion of power, though perhaps in summo jure it *was for the most part strictly legal, gave [* 391] a great and just alarm; the new-modelling of many corporations being a very great stride towards the establishing of arbitrary power; and therefore it was thought necessary at the revolution to bridle this branch of the prerogative, at least so far as regarded the metropolis, by statute 2 Will. & M. c. 8, which enacts, that the franchises of the city of London shall never afterwards be seized or forejudged for any forfeiture or misdemeanor whatsoever. This proceeding by information in the nature of a quo warranto is now prinNow applied to cipally applied to the decision of corporation disputes between party and party, without any intervention of the prerogative, in the manner which has already been explained (c). the decision of corporation disputes. 6. Mandamus. 6. The prerogative writ of mandamus must, in conclusion, be specified as a remedial process analogous to those remedies which have been latterly under our notice. This writ issues from the court of queen's bench, is directed to a person, corporation, or court, and in the sovereign's name commands such person, body corporate, or tribunal, to do a certain specified act, as matter of duty, agreeably to right and justice (d). The writ is meant to be remedial where there would otherwise be a defect of justice, and is not available in lieu merely of the remedy by action (e). We have before considered under what circumstances and how it may be made available against a corporation, and in the last chapter of this Volume we shall briefly notice cases in which it will be granted for the purpose of compelling an inferior court to do justice. (586) THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES. THIS Court, which was constituted by the stat. 20 & 21 Vict. c. 95, was by that act made a court of record, and given exclusive jurisdiction in all causes, suits, and matters matrimonial in England, except in respect of marriage licences. It holds its sittings at Westminster, and numbers amongst its judges, in addition to the judge of the court of probate (a) sitting as judge ordinary, the lord chancellor and all the judges of the courts of queen's bench, common pleas, and exchequer. As the court now under our notice is of recent origin, and as the relief granted by it was never previously granted by any tribunal in the kingdom, it may not be improper to recur shortly to the state of the law as it here existed before its constitution. (c) Vol. i. chap. 17. (d) Selw. Nisi Prius, 13th ed. ii. 1016. (e) ld. p. 1028. (586) As to the writ of scire facias, see 5 Wait's Pr. 633; quo warranto, id. 613; mundamus, id. 548. VOL. II. -36 |