CHAPTER XXV.

PETITION OF RIGHT.

1. Order on Petition of Right-Costs to be paid by the Crown.

THE petition of right of J. and M. &c., by Messrs. P. & G. of &c., copartners, their solrs, coming on this day to be argued before this Court upon her Majesty's command that right be done, in the presence of counsel for the suppliants and for her Majesty's A. G., and upon reading [enter evidence] and (upon hearing) what was alleged by counsel for the suppliant and for her Majesty's A. G., This Court doth declare that &c. was entitled to &c. Tax the costs of the suppliants of the said petition, And Let the same, when taxed, be paid to the suppliants J. and M., in the manner directed by the Act of Parliament of the 23 & 24 V. c. 34.-See James v. The Queen, V.-C. M., 14 June, 1876, A. 1188; and see S. C., V.-C. M., 11 Feb. 1874, A. 338; 17 Eq. 502, where the demurrer of the A. G. was overruled with costs.

Where relief was refused and costs given to the Crown, see Re Brain, V.-C. M., 1 July, 1874, A. 1770; 18 Eq. 389.

2. Two Demurrers to Petition of Right, one allowed, one overruled.

THE demurrer put in by her Majesty's A. G. on behalf of her Majesty, and the demurrer put in by the Secretary of State for India in Council (served with the petition), to the petition of right of K. of &c., on behalf of himself and all other the persons who under the Royal grant of the 10 June, 1864, are entitled to share in the booty of Banda and Kirwee, coming on this day to be argued before this Court in the presence of the said K. in person, and of counsel for her Majesty, and the Secretary of State for India in Council, Upon opening and debate of the matter, and upon hearing what was alleged by the said K. and by counsel for her Majesty and for the Secretary of State for India in Council. This Court held the demurrer of her Majesty's A. G. on behalf of her Majesty to be good and sufficient, and that the suppliant is not entitled to any portion of the relief sought by his petition; And, therefore, Let the said demurrer stand and be allowed; And Let the said K. pay to her Majesty's A. G. his costs of his said demurrer, to be taxed by the taxing master, And this Court held the

demurrer of the Secretary of State for India in Council to be insufficient as being out of time; And, therefore, Let the same be overruled; And Let the Secretary of State for India in Council pay to the said K. his costs of the said demurrer to be taxed by the taxing master, costs to be set off.-Kinlock v. The Queen, Kay, J., 27 Nov. 1882, A. 2257.

For order allowing demurrer, and for suppliant to pay costs of demurrer and petition, see Re Tufnell, 15 June, 1876, B. 1093.

For forms of petition of right and consequential thereon, see D. C. F. 817

et seq.

NOTES.

As to petitions of right, before and independently of the Petition of Right Act, 1860, see Dan. 1296; 3 Steph. Com. 11th ed. 680; Clode on Petition of Right; Clayton v. A. G., 1 C. P. D. 97; Taylor v. A. G., 8_Sim. 413; Monckton v. A. G., 2 Mac. & G. 402; Re Von Frantzius, 2 D. & J. 126; Re Rolt, 4 D. & J. 44; and see the practice explained by Wickens, V.-C., in Kirk v. The Queen, 14 Eq. 563.

That Act (23 & 24 V. c. 34) provides that a petition of right may be instituted in any of the Superior Courts of Law or Equity, and by the following sections the fiat of his Majesty that right be done being obtained through the Home Secretary (see s. 2), the proceedings are assimilated to those in an ordinary suit or action between subjects (see Gen. Ord. 1 Feb. 1862; Dan. 1297; Clode, 192); and are to be prosecuted in the Court in which the petition is entitled, or such other Court as the L. C. may direct. By ss. 11, 12, costs may be given to (Re Brain, 18 Eq. 389) and against (James v. The Queen, sup. Form 1, and S. C. on demurrer, 17 Eq. 502) the Crown and other parties.

By s. 18, suppliants may still proceed as if the Act had not passed.

The Crown may, notwithstanding the Act, plead and demur without leave: Tobin v. The Queen, 14 C. B. N. S. 505; 11 W. R. 701; and see S. C., Ib. 915.

It seems doubtful whether any person can be joined with the Crown as respondent to the petition. If not, another suit may be commenced against the Sovereign and others after the fiat has been given: Kirk v. The Queen, 14 Eq. 558; and as to joining a Secretary of State, see S. C.

A petition of right will lie:-For unliquidated damages for breach of contract: Thomas v. The Queen, L. R. 10 Q. B. 31; Windsor and Annapolis Rail. Co. v. Reg., 11 App. Ca. 607, P. C.; or otherwise in respect of matters of contract: Macbeath v. Haldimand, 1 T. R. 176; Oldham v. The Lords of the Treasury, cited 6 Sim. 220; or to enforce an agreement for a lease: James v. The Queen, 17 Eq. 502; Davis v. Adams, W. N. (76) 202; and, semble, the Crown's advisers cannot capriciously refuse to allow investigation: Ryves v. D. of Wellington, 9 Beav. 579; Clode, 164. But not for unliquidated damages for a trespass: Tobin v. Reg., 16 C. B. N. S. 310; 12 W. R. 838; Canterbury v. A. G., 1 Ph. 306. Nor for compensation for a wrongful act done by a servant of the Crown in the supposed performance of his duty: Tobin v. Reg., sup. Nor as to lands in a colony: Holmes v. The Queen, 2 Johns. & H. 527; 8 Jur. N. S. 76; 10 W. R. 39. Nor an engagement made by the Crown with any of its military or naval officers in respect of services either present, past or future: Mitchell v. The Queen, (1896) 1 Q. B. 121, n., C. A. And a suppliant, or intending suppliant, is not entitled to discovery, nor to production of documents as against the Crown: Thomas v. The Queen, L. R. 10 Q. B. 44; Reiner v. M. of Salisbury, 2 Ch. D. 378, 386. And communications as to State matters between officers of State, as such, are absolutely privileged Chatterton v. Secretary of State for India in Council, (1895) 2 Q. B. 189, C. A.; though the Crown, by the combined effect of 23 & 24 V. c. 34, and O. XXXI, 12, is entitled to discovery from the suppliant: Tomline v. The Queen, 4 Ex. D. 225, C. A.; and as to the right of the Crown to discovery generally, v. sup. pp. 67, 71.

The Crown cannot be made to account for money paid by a foreign government as compensation to English subjects: Rustomjee v. The Queen, 2 Q. B. D. 69, C. A.

An action for trespass against the Lords of the Admiralty in their official capacity will not lie: Raleigh v. Goschen, (1898) 1 Ch. 73.

Relief against a forfeiture of a Crown lease or gale for nonpayment of rent was refused after six months in Re Brain, 18 Eq. 389.

Demurrer was allowed to a petition of right by an army doctor, who, having been forced to retire, claimed that the office was tenable for life: Re Tufnell, 3 Ch. D. 164; also to a petition of right for an increase of a superannuation allowance, such an allowance being, under 4 & 5 W. 4, c. 24, s. 30, and the Superannuation Act, 1859, ss. 2, 18, a mere bounty: Cooper v. The Queen, V.-C. M., 28 W. R. 611; 14 Ch. D. 311; and as to contracts by the Crown being conditional on the funds being voted by Parliament, see Re Tufnell, sup., and Churchward v. The Queen, L. R. 1 Q. B. 173.

An action for breach of contract will lie by contractors against H, M. Commrs for Works and Public Buildings: Graham v. Works, &c. Commrs, 70 L. J. K. B. 860.

The Statutes of Limitation have no application as between the Crown and a subject, and should not be pleaded by the Crown, but the fiat may be refused: Rustomjee v. The Queen, 2 Q. B. D. 69, C. A.

And the Crown not being named in the Prescription Act, 1832 (2 & 3 W. IV. c. 71), s. 3, is not bound by that section: Perry v. Eames, (1891) 1 Ch. 658; nor are the lessees of the Crown, as there can be no easement by prescription for a limited time: Wheaton v. Maple, (1893) 3 Ch. 48, C. A.

No mention of petitions of right is made in the Judicature Acts or Rules, but the Gen. Ord. of 1st Feb. 1862, is not annulled, and the prerogative of the Crown to intervene in actions affecting its rights is not affected by Jud. Act, 1873, s. 24 (5): A. G. v. Constable, 4 Ex. D. 172; and as to the right of the Crown to have an action of trespass in a County Court, affecting the rights of the Crown over land, transferred to the revenue side of the Q. B. D., see Ld. Stanley of Alderley v. Wild, (1900) 1 Q. B. 256, C. A.; A. G. v. Wilson, W. N. (00) 263; W. N. (01) 5; and notwithstanding those Acts and O. XXV, 1, a demurrer may be put in by the A. G.: Northam Bridge Co. v. The Queen, 23 Nov. 1886, B. 1373; Clode, 178.

And for forms, and as to the practice generally, see Clode, passim.

CHAPTER XXVI.

ARBITRATIONS AND REFERENCES.

1. Stay of Proceedings with view to Reference to Arbitration-Costs.

UPON motion &c., and upon reading [an affidavit and exhibit therein referred to], being the partnership deed dated 11 July, 1892, made between the Plt and the Deft, and providing for a reference to arbitration of all differences relating to the partnership or the affairs thereof arising between the parties during the continuance of the partnership, This Court doth, pursuant to sect. 4 of the Arbitration Act, 1889, order that all further proceedings in this action be stayed until further order; And it is ordered that the costs of this application be costs in the action and that the costs of this action be in the discretion of and be dealt with by the arbitrators to be appointed under the said partnership deed.-Vawdrey v. Simpson, Chitty, J., 28 Nov., 1895, B. 4411; (1896) 1 Ch. 166, followed by Kekewich, J., Machin v. Bennett, 22 June, 1900; W. N. (1900), p. 146.

For form of application, see D. C. F. 1131.

2. Usual Reference to one Arbitrator.

By consent,-Let all matters in difference in this action between the parties be referred to the arbitrament, final end, and determination of A. of &c., who is to make his award in writing on or before the day of, or such further day as the said A. shall appoint; And by the like consent, Let all deeds, books, and papers in the custody or power of either of the parties relating to the matters in question be produced before the said arbitrator as he shall direct, to be ascertained by the oaths of the respective parties producing the same; And the parties and their witnesses, being first sworn, are to be examined as the said arbitrator shall direct; And by the like consent, the costs of this cause [or action], and of this application and of this reference, are to be in the discretion of the said arbitrator; And by the like consent, no action is to be brought by either of the parties against the said A. for any matter or thing he shall do in, about, or touching any of the matters

hereby referred to him; And by the like consent, the said arbitrator is to have power from time to time to enlarge the time for making his award as he shall think fit.

3. Same-to two Arbitrators, or their Umpire.

-

LET all matters in difference in these actions, between the Plt X., as exor of A., deceased, and the Deft, be referred to the arbitrament &c. of B., of &c., a person for this purpose nominated by the Plt, and of C., of &c., a person for this purpose nominated by the Deft, or, in case of their not agreeing to an award, then to the arbitrament &c. of such umpire as shall be appointed by them, the said B. and C., in the manner hereinafter mentioned; And such arbitrators are to make their award in writing on or before the day of, or on or before such further day as they, the said arbitrators, shall from time to time by any writing under their hands appoint; And in case of the said arbitrators not agreeing in an award, the said umpire is to make his award in writing within the period hereinafter mentioned, that is to say, within three months after the time during which it is within the power of the arbitrators to make an award shall have ceased; or within such extended time, after the expiration of the said period of three months, as the said umpire shall from time to time by any writing under his hand appoint; And Let all deeds &c. [Form 2]; And the costs of these actions and of this application are to be in the discretion of the said arbitrators and umpire, or of such of them as shall award upon the matters in difference; And no action &c. [Form 2]; And before such arbitrators shall enter upon the matters referred to them they are, by writing under their hands, to appoint some person approved of by them to be such umpire as aforesaid: and such umpire shall, by writing under his hand, signify his acceptance of such appointment.-Liberty to apply.-Edwards v. E., V.-C. S., 28 July, 1856, A. 1589.

For like order to refer all matters in question in the suit (including the question whether the alleged partnership was or was not constituted, and also including all questions between the parties relating to the Plt's annuity, and to the distress levied by him, and to the Deft's proceedings in replevin, and also who is to have possession of the farm in the pleadings mentioned, and upon what terms as to payment of moneys or otherwise), see Oslar v. O., V.-C. B., 11 Nov. 1875, B. 3194.

For form of application, see D. C. F. 1129.

4. To enlarge Time to make Award-Arbitration Act, 1889, s. 9.

WHEREAS by an order dated &c. [Recite order of reference concisely, but particularly as to time when arbitrator is to make his award], Now upon motion &c., by counsel for --, and upon hearing counsel for -1 and upon reading &c., This Court doth order that the time for the said arbitrators to make their award be enlarged until the — day of —.

This order may also be obtained at Chambers. For form of application, see D. C. F. 1135.