moneys to which the suppliant is entitled: Held, by the Court of Exchequer Chamber affirming the judgment of Q. B.,

That there was no ground for the petition of right, and the suppliant could take nothing, since he had no right except by claiming according to the statute, and the statute disposed of the whole fund.

Held, also, that the Queen's Bench had power to give judgment on the petition, and that the judgment was right in form.

AFTER the judgment of the Court of Queen's Bench in this case (Baron de Bode's case, 8 Q. B. 208), the suppliant died intestate; October 2d, 1846. His *son and administrator brought a writ *365] of error in the Exchequer Chamber on the judgment in B. R. The assignment of errors was as follows.

"Afterwards, to wit, on," &c. (22d June, 1847), "before," &c., "in the Exchequer Chamber, comes Clement Augustus Gregory Peter Lewis, Baron de Bode, the son and administrator with the will annexed of the said suppliant Clement Joseph Philippe Pen, Baron de Bode, deceased, by Henry Seymour Westmacott his attorney, and says," &c. (common assignment of error). "And this he the said C. A. G. P. L., Baron de Bode, so being such administrator as aforesaid, is ready to verify. Whereupon the said C. A. G. P. L., Baron de Bode, as such administrator as aforesaid, prays that the judgment aforesaid may, for the error aforesaid and for other errors in the said record and process being, be reversed, annulled, and for nothing esteemed; and that the AttorneyGeneral of the said Lady the Queen may rejoin to the error aforesaid; and that the Court," &c., "now here may proceed to the examination as well of the record and process aforesaid as of the matters above for error assigned."

In Michaelmas term (November 9th) 1847, Sir John Jervis, AttorneyGeneral, moved to quash the writ of error on several grounds. He stated, as preliminary objections, that the writ had been sued out without a fiat, and that the transcript went only as far as the verdict, and did not contain the judgment: but he waived these objections, and consented that the writ of error should be amended without a certiorari: which was accordingly done. On the other grounds a rule nisi was granted: and, in Michaelmas vacation, 1847,

*Manning, Serjt., Hill, Mellor, and Anstey showed cause.(a) *366] It is objected, on behalf of the Crown, first, that a writ of error does not lie for the administrator of a suppliant on a petition of right; and, secondly, that, if he could be made party to the proceeding by scire facias, none has issued in this case. These points may be considered. together. In an ordinary case an executor cannot, without a scire facias, sue out execution upon a judgment recovered by his testator; but he needs not resort to a scire facias in order to recover: he may bring an action of debt on the judgment, suggesting that he is executor; in which (a) November 27th. Before WILDE, C. J., MAULE and WILLIAMS, Js., and PARKE, ALDERSON, ROLFE, and PLATT, BS.

action the defendant may deny the representative character, or may plead matter in answer, as release or payment. And an executor wishing to call in question a judgment has no occasion for a scire facias; he needs only to sue out a writ of error, describing himself as executor. Of the writs of scire facias used in proceedings before a court of error, the scire facias quare executionem non is the writ of the defendant in error to compel the plaintiff to proceed; the scire facias ad audiendum errores is that of the plaintiff in error to force on the defendant. If it is contended that in the present case there ought to have been a scire facias of the latter kind, that is at least no objection to the writ of error itself. And a scire facias ad audiendum errores does not lie in the Exchequer Chamber.(a) (Sir J. Jervis, Attorney-General.—The argument for the Crown is that there is no kind of scire facias to which the plaintiff in error is entitled; and, therefore, the writ of error cannot lie. *Except on scire facias

the Crown could not allege matters in answer which might have [*367 arisen since judgment. And there could not here be a scire facias quare executionem non.) That is an argument against even the maintenance of a petition of right. And, further, it is laid down in Fitz. N. B. 21, tit. Writ de Error (H), that, "if a false judgment be given for the King in any suit or action, the party grieved shall have a writ of error, and assign his errors, without suing forth any scire facias against the king ad audiendum errores, because that the king is always present in Court." [WILDE, C. J.-What is the proceeding in the case of the Sovereign?] A rule served on the Attorney-General. [MAULE, J.— Can he deny the representative character on a rule?] He may plead in abatement; perhaps he may plead in bar, or demur. The writ of error is analogous to a declaration. [PARKE, B., referred to Reg. Gen. Hil. 1 W. 4, 13, 5 B. & Ad. xvi. (E. C. L. R. vol. 27),(a) and the note upon it in Jervis's New Rules, P. 109, note, (a), 4th ed.] That rule is meant for the case where a party brings error and dies, and the executor proceeds. [PARKE, B.-The writ would abate unless error had been assigned; and the rule can hardly have been framed with a view to the fraction of time between assignment of errors and joinder. It seems rather to be intended generally for cases where the executor was not party to the original suit.] A scire facias is not necessary to enable the Crown to dispute the executor's right to sue in the Court of Error: that be done by pleading to the assignment of errors: Scroggs v. Lord Mordant, Cro. Eliz. 294, S. C. as Lord Mordant v. Bridges, Moore, 686, Com. Dig. Pleader *(3 B. 19), Street v. Hopkinson, 2 Stra. 1055, S. C. Ca. K. B. Temp. Hardwicke, 345, Champernow v. Godolphin, Cro. Jac. 160, are instances. Many authorities show that, before the rule of Hil. 1 W. 4, 13, 5 B. & Ad. xvi (E. C. L. R. vol.

may

(a) 2 Tidd. 1173, 9th ed.

[*368

(b) That no sci. fa. ad audiendum errores shall be necessary unless in case of a change of parties.

27), the representative bringing error proceeded in that capacity at once and directly, without reference to any antecedent step as necessary to place him in Court; and that he was entitled so to do; Marsh's Case, 1 Leon. 325, S. C. Owen, 147, Cro. Eliz. 225, 273, Rex v. Ayloff, 1 Salk. 295 (where it was said that the executor might bring error to reverse the attainder of his testator, "for he is privy to the judgment, and may have loss thereby"), Fitzh. N. B. 21, tit. Writ de Error (N), Fox v. King, 1 Lil. Ent. 232, Co. Ent. 153 b, tit. Det, 31, Rast. Ent. 303 a, tit. Error, 5, Sheepshanks v. Lucas, 1 Burr. 410. In The Swordblade Company v. Dempsey, 2 Stra. 892, S. C. Fitzg. 201, 1 Barnard. K. B. 405, 421, the decision, so far as it was unfavourable to the proceeding in error, turned upon want of privity. (Sir J. Jervis, AttorneyGeneral, said that there was no dispute as to the course of proceeding on writs of error before the late rule, and referred to note (1) on Jaques v. Cesar, 2 Wms. Saund. 100, 6th ed., as containing everything material respecting the practice.)

It is contended further, on the part of the Crown, that, if the suppliant is entitled to this writ of error, it should have been brought, not in the Exchequer Chamber, but in the House of Lords, as at common law. This is a question too important to be decided on motion, as was held by Lord COTTENHAM, C., in Davies v. Lowndes, 1 Phillips's Rep. 328, with respect to the continuance of a writ of *right sued by *369] journeys accounts, after stat. 3 & 4 W. 4, c. 27, s. 36. But, as to the point itself: stat. 27 Eliz. c. 8, allowed for the first time writs of error from the Queen's Bench to the Exchequer Chamber, in certain suits or actions "other than such only where the Queen's Majesty shall be party." Then stat. 11 G. 4 & 1 W. 4, c. 70, s. 8, enacts "that writs of error upon any judgment given by any of the said Courts" (the superior courts of common law) shall hereafter be made returnable only before the Judges, or Judges and Barons, as the case may be, of the other two Courts in the Exchequer Chamber, any law or statute to the contrary notwithstanding:" and the exception on behalf of the Queen is omitted. The words "any judgment" are unqualified.(a) But it will be contended that the Crown, not being named, is exempted from the operation of the statute; and that this rule prevails at all events where the Crown has a pecuniary interest, whether it be applicable in other cases or not. But such pecuniary interests may arise in many cases of ordinary occurrence, and to which the statute must have intended to apply; as the profit of the Crown from outlawry, and from the year, day, and waste. It is a general principle, that the party grieved" by a judgment "shall have a writ of error;" Fitz. N. B., Writ de Errors, 20 D. "Error lies of any judgment in a court of record;" Com. Dig. Pleader (3 B 7): and there is no reason for limiting the rule in the case of a petition of right, more than in that of proceeding to

(a) See Nesbit v. Rishton, 9 A. & E. 426, 431 (E. C. L. R. vol. 36).

reverse an attainder. The statute may be held to include the Crown, though not named, on the grounds, relied upon by the Court of [*370 Exchequer Chamber in Rex v. Wright, 1 A. & E. 434 (E. C. L. R. vol. 28), (where error was held to be maintainable under the statute on an indictment in B. R.), that the enactment is for the advancement of justice, and not restricted in its terms. Nor does it in any way abridge the privileges of the Crown. It was laid down by DYER, C. J., in Willion v. Berkley, Plowd. 223, 252, speaking of the statute De donis, 1 stat. 13 Ed. 1, c. 1, that "the design of the act is to give restitution, and in restitutions the King has no favour, nor has his prerogative any exemption." "So also shall it be in case of a restitution upon petition of another to have that to which the King has no right, for where a thing which the King ought not to hold is restored to the right owner who ought to have it, the words shall be taken most strongly against the King, and his prerogative shall not hold place, nor shall he be favoured more than another person." In Dwarris On Statutes, 523 (2d ed.), it is said: "If the statute be intended to give a remedy against a wrong, to prevent fraud" or "tortious usurpations," the King, though not named, shall be bound by it." The author adds (p. 524), "that in such cases" (where express words affecting the Sovereign are not used) "he may be precluded of such inferior claims as might belong indifferently to the King or to a subject (as the title to an advowson or to a landed estate), but not stripped of any part of his ancient prerogative, nor of those rights which are incommunicable, and are appropriated to him as essential to his regal capacity." [WILDE, C. J.-Is there any proceeding to enforce recovery of money on a petition of right?] If a public officer admitted having received money subject to the demand of the suppliant, Rex v. The *Lords Commissioners of the Treasury, [*371 4 A. & E. 286 (E. C. L. R. vol. 31), would apply. [WILDE, C. J.-It may be asked whether this is a proceeding adverse to the Crown. The King having ordered that right be done, does that operate up to a certain point only, or throughout the cause?] The question comes to that. The principle upon which the proceeding by petition of right has been established is laid down by Blackstone, 3 Comm. 254, 5, 6; and the claim, in the present stage of the case, is entirely consistent with it. Judgment being pronounced, and the Queen being in Court, it is an inevitable consequence that she should redress the wrong; and that consequence must extend to rectifying the judgment, if erroneous. [WILDE, C. J.-An erroneous judgment must be a grievance; and, if there is no grievance without a remedy, the consequence you point out seems to follow. ALDERSON, B.-In the judgment of HOLT, C. J., in The Bankers' Case, Skinn. 601, 615, it is said, of mesne profits paid into the Exchequer, and which, by reason of the prerogative, could not be subject to restitution, "the remedy at common law was a petition of right, which was a real action in its nature, where damages are not to be reVOL. XIII.-29

covered; and in such case the King had not a greater privilege than a subject."] Then there must, in such cases, be a writ of error. [MAULE, J.-It may be said that the proper course is a new petition of right.] Putting the party to a new suit would be contrary to the order «let right be done." [WILDE, C. J.-A writ of error is a new suit.] It is under the original order. A writ of error is not, for every purpose, a new action. And the endorsement "let right be done," implies the fullest investigation of the complaint as preferred. [WILDE, C. J., referred to *Viscount Canterbury v. The Attorney-General, 1 Phillips's Rep. *372] 306, and the case of Robert de Clifton, 1 Rot. Parl. 416, No. 3, there cited.(a)] The latter case is commented upon and explained in note, (a) to Smith v. Upton, 6 Man. & G. 251, 252 (E. C. L. R. vol. 46). (b)

Sir John Jervis, Attorney-General, and Waddington, contrà.-The proceeding by motion in the first instance to quash is merciful to the applicant if he has taken a course which would ultimately prove a wrong one and it was adopted in King v. Simmonds, 7 Q. B. 289 (E. C. L. R. vol. 53). In Tolson v. Kaye, 6 Mann. & G. 536,. 590 (E. C. L. R. vol. 46), the writ of error was quashed. As to the last point argued on the other side: the petition of right is treated on the part of the suppliant as if it were matter of right and not of favour; but the contrary appears from Staunford (Prerogative, 42 a, b, c. 15), and other text writers, as well as from the form of the petition itself, the reference to the Lord Chancellor, and his endorsement.(c) When the case of the suppliant is brought before the Lord Chancellor by a formal statement, the Attorney-General, if he disputes only the right in point of law, may demur, as was done in Viscount Canterbury v. The Attorney-General; and then, if the Lord Chancellor's judgment be deemed erroneous, the writ of error must go to the House of Lords. If the Attorney-General does not demur in this stage, and does not contest the facts, there will be an inquisition ex parte: then the Attorney-General may

*373] demur to the inquisition or traverse it; or both: if he traverses

and demurs, the issue in fact goes to the Queen's Bench for trial, and that Court will give judgment on the issue. According to the argument for the suppliant, the writ of error on that judgment ought to go to the Exchequer Chamber. Then is the writ of error from the judgment on demurrer to go to the House of Lords, so that two Courts of error will have to give judgment on the same record? Or will the issue in law follow the issue in fact, or vice versâ? [PARKE, B., mentioned Bynner v. The Queen, 9 Q. B. 523 (E. C. L. R. vol. 58).(d)] The enactment (a) 1 Phillips's Rep. 326.

(b) Anstey, at the close of the argument, referred to the Proceedings in a Petition of Right, on behalf of Peter Corbet, &c., extracted from the Coram rege roll, in the Appendix (C) to Rowe v. Brenton, 3 Man. & R. 460 (E. C. L. R. vol. 42).

(c) See Baron de Bode's case, 8 Q. B. 208, 225, 6 (E. C. L. R. vol. 55).

(d) See stats. 11 & 12 Vict. c. 94 (sects. 30, 31), and 12 & 13 Vict. c. 109 (sects. 32 et seq.ì: both passed since the above argument.