CHAP. II. OF THE PERSONS BY WHOM A SUIT MAY BE INSTITUTED. SECT. I.-The King's Attorney-general. Ir is a general rule, subject to very few exceptions, that All persons may there is no sort or condition of persons but may sue in the sue in equity. Court of Chancery, and this extends from the highest person in the State to the most distressed pauper. The King himself has the same right which a subject has, The King. to institute proceedings in his own Courts for the assertion of any right which he claims, either on behalf of himself or others, and the same principles which entitle a subject to the assistance of a court of equity, to enable him to assert his legal rights, are equally applicable to the Sovereign. Thus a suit may be instituted on behalf of the Crown to have the benefit of a discovery from persons charged to be aliens of the place of their birth, in order to assist him in a commission to inquire into their lands, with the view of seizing them into his hands by inquisition (a). For the same reason, where an office cannot be found for the Crown without the aid of a Court of Equity, the Court will, at the suit of the Crown, interfere to restrain the commission of waste in the mean time (b). may sue It is said, that the King is not bound to assert his rights in any particular Court, but that he may sue in any of his Courts in any Court. which he pleases, without reference to the question whether the subject matter of his suit is such as comes within the peculiar jurisdiction of such Court (c). Thus he may have a quare impedit in the King's Bench (d), or he may elect to sue either in a Court of Common Law or in a Court of Equity. In a suit which was commenced in Chancery by the Attorney-general on behalf of the King and Lord Hunsdon, as the King's (a) Attorney-general v. Du Plessis, 1 Bro. P. C. 415-19. (b) 2 Ves, 286. (c) 11 Rep. 68 B.; Ibid. 75 A.; In what Courts. farmer for the manor of West Thoresley and Castleby, in the county of York, against the Duchess Dowager of Arundel and others, a decree was pronounced for the King, although the King had a good title at law, as appears by the report of Sir H. Hobart, who as Lord Chief Baron assisted the Lord Chancellor (e); and in Attorney-general v. Vernon (ƒ), a patent of lands was set aside as unduly obtained, by information in equity. In both these cases, however, there were equitable grounds alleged for instituting the proceedings. In the former case, the cause alleged was, that the deeds whereby the estate came to the party under whose attainder the Crown claimed, were suppressed or withheld by the defendants; in the latter case, fraud and surprise were charged as grounds of relief. There seems, however, to be no doubt but that the King may proceed in questions relating to the property to which he is entitled in right of his Crown, either in a Court of Law or in a Court of Equity, and that where he has caused a Court of Equity to be informed that an intrusion has been committed on his land, although no matter of equitable jurisdiction has been stated, yet the information will be entertained: but in such cases, if any question of law arises, the Court will put it in the course of trial by a Court of Law, and will retain the information till the result of such trial is known (g). In general, however, suits on behalf of the Crown are instituted in the Court which, by its constitution, is most properly adapted to the case; and the Court of Exchequer being the general Court for all business relating to the King's revenue or property, the practice is, that all proceedings relating to the property of the Crown, whether King are usually at common law or in equity, should be instituted there. Many cases, however, occur in the books in which proceedings relating to the rights of the Crown have been commenced in the Court of Chancery; but they are, in general, confined to cases of purpresture or nuisance, or other matters where the proceedings have been commenced at the relation of individuals, who, as they are considered responsible for the costs. Informations relating to the Lands and Revenues of the in the Exche quer. Where a Relator is concerned they may be brought in either court. (e) The King v. The Countess Dowager of Arundel, Hob. 131. (ƒ) 1 Vern. 277. 370; 2 Ch. R. 353. S C. (g) Vide Attorney-general to the Prince of Wales v. Sir J. St. Aubyn, Wightw. 167, and the cases there cited; vide etiam Attorney-general v. The Mayor of Plymouth, ibid. 131. and conduct of the suit, are in general at liberty to commence In what Courts. it in whatever Court of competent jurisdiction they please. For the same reason, informations on behalf of charities, or of idiots or lunatics, in which there is generally a relator, are frequently exhibited in the Court of Chancery, although they may, with equal propriety, be commenced in the Exchequer. And it is to be observed, that in cases relating to charities, informations under the Act of 59 Geo. 3, c. 51, may be commenced either in the Court of Chancery or Exchequer, although in general they have been instituted in the former Court. Westminster. In all cases where the right of the King, or of those who par- In Courts at take of his prerogative, are the subject of the suit, the name of the King is not, as we have seen, made use of as the party complaining, but the matter of complaint is offered to the Court by way of information given by the proper officer. That The Attorneyofficer, if the information is exhibited in any of the Supreme Courts at Westminster, is the Attorney-general, or if the office of Attorney-general should happen to be vacant, the Solicitorgeneral (h). at general, or if no Attorney, the Solicitor-general may sue on be half of Crown. tine of Lancas ter. Lancaster. Besides the Attorney and Solicitor-general, who are the In County Pala officers for conducting the King's business in his Courts Westminster, the King has officers of the same description in the county palatine of Lancaster and in the duchy of Lan- In Duchy of caster, whose duty it is to conduct the business of the Crown in the courts belonging to those jurisdictions (i). The Bishop of Durham, as possessing jura regalia in the county palatine of Durham, has also his Attorney-general for the same purpose within his jurisdiction. And it seems that the Bishop of Ely has also the privilege of appointing an Attorney-general within his franchise. (h) Ld. Red 18; Wilkes's Case, 4 Bur. 2527. (i) The Court of the Duchy Chamber of Lancaster has both a legal and equitable jurisdiction with regard to lands within its survey, and proceedings relating to the property of the Crown within its jurisdiction are generally commenced by information by the Attorney-general of the juris diction. Per Wood, B.; Attorney- In County Palatine of Durham. In the Franchise of Ely. In particular in the Great Sessions in Wales. Previously to the passing of the Act of the 11 Geo. 4, & 1 Will. 4, c. 70, by which the jurisdictions of the Courts of Great Session in the principality of Wales and county In Chester and palatine of Chester, and of the Chamberlain and Vice-Chamberlain of Chester, were transferred to the Courts at Westminster, informations on behalf of the Crown to these Courts respecting matters within their jurisdiction must have been by the Attornies-general of those jurisdictions. But since the juris- the passing of that Act, although by the 34th sect. the offices dictions are of Attorney-general of Chester and of Wales are continued to abolished. the present holder of them till His Majesty's pleasure shall be otherwise declared, yet, as their offices are circumscribed by the jurisdictions to which they are appointed, and the courts of equity within those jurisdictions are removed, no informations in equity can be exhibited by them, because no person who sustains the character of Attorney-general in a county palatine or other jurisdiction of this description is recognised as such in Westminster-Hall (k). In this respect, however, the Attorneygeneral for the Duke of Cornwall appears to be in a different situation from Attornies-general of counties palatine, since it has been decided, in the case of the Attorney-general for the Prince of Wales v. Sir John St. Aubyn, that he may exhibit an English information on behalf of the Prince of Wales, as Duke of Cornwall, in the King's Courts at Westminster. It seems, however, that this rule holds only during such time as there is a Duke of Cornwall in existence, and that when the duchy of Cornwall is in the hands of the Crown, the King's Attorney-general conducts all proceedings relating to the duchy. When there is a Duke of Cornwall who has not attained his majority, such proceedings are also carried on by the King's Attorney-general, taking along with him the Attorney-general for the duchy of Cornwall, not, as it seems, that he is joined as a necessary party, but rather from attention to the Duke of Cornwall in respect of his interests (1). When the Duke of Cornwall comes of age, the proceedings may, it would appear, be taken up and prosecuted by his Attorney In the Duchy of Cornwall. (k) Argo Attorney-general to the Prince of Wales v. Sir J. St. Aubyn, Wightw. 178. (1) Vide Wightw. 255, 256, and the proceedings there cited. Where Crown not immediately concerned. Where the Crown is not immediately concerned. On behalf Crown's Grantee of a Chose in Action. general alone (m). And if the Duke of Cornwall should die pendente lite, the proceedings may be carried on by the King's Attorney-general by information of revivor and supplement (n). Besides the cases in which the immediate rights of the Of Informations. Crown are concerned, the King's officers may, in some cases, institute proceedings on behalf of those who claim under the Crown, by grant or otherwise, or, more correctly speaking, those who claim under the Crown may make use of the King's name, or of that of his proper officer, for the purpose of asserting their right against a third party. Thus a chose in action may be assigned to the King, and may also be granted or assigned by him to another person; and in this latter case the grantee may either sue for it in his own name or in that of the King (0). But if he sues in his own name he must make the Attorney-general a party to his suit. In Balch v. Wastall (p), A having outlawed B, brought a bill against C, a trustee for B, with respect to an annuity, to subject this annuity to the plaintiff's debt, and the Court held, that forasmuch as by the outlawry all the defendant's interest, as well equitable as legal, was vested in the Crown, the plaintiff must not only get a grant thereof from the Crown, but must make the Attorney-general a party to the suit (q). Informations may also be exhibited by the King's Attorneygeneral or other proper officer in support of the rights of those whose protection devolves upon the Crown as supreme head of the Church. Thus the King, as supreme head of the Church, is the proper guardian of the temporalities of the bishopricks; and an information may therefore be brought by the Attorneygeneral to stay waste committed by a bishop (r). In like manner the Attorney-general may exhibit informations on behalf of individuals who are considered to be under the protection of the Crown as parens patriæ, such as the objects of general charities, idiots and lunatics. In some instances, also, (m) Vide Wightw. 246, and the proceedings there cited. (n) Ibid. 25. (0) Dyer, 1, Pl. 7, 8; Keilw. 1 69; 5 Bac. Ab. tit. Prerog. F. 3; Miles v. Williams, 1 P. Wms. 252; Earl of Stafford v. Buckley, 2 Ves. 181. (p) 1 P. Wms. 445. (q) Vide etiam Hayward v. Fry, ibid. 446; and Rex v. Fowler, Bunb. 38. (r) Knight v. Mosely, Amb. 176; Wither v. D. & C. of Winchester, 3 Mer. 427; Jefferson v. Bishop of Durham, 1 Bos. & Pull. 129. 131. On behalf of the King as supreme head of the Church. As parens patriæ, for charities, &c. |