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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, Attorney. General, 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. *369]

328, with respect to the continuance of a writ of *right sued by

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).


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reverse an attainder. The statute may be held to include the Crown, though not named, on the grounds, relied upon by *the Court of 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, 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

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 re


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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). (6)

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 siile: the petition of right is treated on the part of the sup, pliant as if it were matter of right and not of favour; but the contrary appears from Staunford (Prærogative, 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.

(6) 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 Ruwe 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) Soe stats. 11 & 12 Vict. c. 94 (sects. 30, 31), and 12 & 13 Vict. c. 109 (sects. 32 et seq.i: both passed since the above argument.


11 G. 4 & 1 W. 4, c. 70, s. 8, was made to avoid certain anomalies, and to establish the practice that the judgment delivered by Judges of one of the Superior Courts should always be reviewed by the Judges of the two others: it was no part of the object to give to a Court so composed, jurisdiction in error over a case like the present. The maxim, that the Sovereign is not bound unless named, does not stand upon pecuniary interests only, such as the Crown may have in prosecutions for felony (though the interest which the Crown has in these does not properly rest upon the profit which may happen to accrue in a particular event): the rule applies wherever the case directly affects the Sovereign in his prerogative. The authorities on the subject are collected in Attorney-General v. Allgood, Parker, 1, where it was held on an information of intrusion) that a defendant could not, under stat. 4 Ann. c. 16 *" for the amendment of the law,” &c.), s. 4, plead several matters against the King; though the words of the clause are

[*374 " in any action or suit.” That case was acted upon as directly in point in Attorney-General v. Donaldson, 7 M. & W. 422 :and the principle of it was again applied, in Attorney-General v, Donaldson, 10 M. & W. 117, † to sect. 11 of the statute of Sewers, 23 H. 8, c. 5, where a general form of pleading is given to defendants in “ any action of trespass, or other suit,” for acts done under the Commission of Sewers. There is no instance of such a writ of error as this. Rex v. Wright, 1 A. & E. 434 (E. C. L. R. vol. 28), is not an authority for it. The question there was admitted by the Court to have been doubtful in the particular case; and, being ultimately satisfied as to the correctness of the judgment below, they stopped the argument on this point. The petition of right is

process granted by virtue of the King's prerogative, and must be strictly followed, according to the concession made on the part of the Crown; Staunf. Prærogative, 72 b, c. 22. The general words “ “any judgment,” in stat. 11 G. 4 & 1 W. 4, c. 70, s. 8, do not extend to such 8 case. [ALDERSON, B.—How does it interest the Crown here, whether the writ of error goes to this Court or the House of Lords, it being admitted that error lies to one or the other ?] There are some differences in the practice which may be to the disadvantage of the Crown; for instance, a transcript only, not the record itself, is returned to this Court with the writ. But the question must be decided on general principles, and not on the consideration whether injury may or may not result to the Crown in a particular instance. *The cases in which statutory words will bind the Crown, though not named, are thus stated in the Case of Ecclesiastical Persons, 5 Rep. 14 a, 14 6. “In

b divers cases the King is bound by act of parliament, although he be not named in it, nor bound by express words. And therefore all statutes which are made to suppress wrong, or to take away fraud, or to prevent the decay of religion, shall bind the King although he be not named :" and so, Lord Coke adds, the Crown has been held to be bound by the




statute Westm. 2 (1 stat. 13 Ed. 1), c. 1 (De donis), and c. 5 (against usurpations of advowsons). But the Crown has never been held to be included in the statutes for regulating legal proceedings; as by Magna Charta (1 stat. 9 H. 3), c. 11, fixing the Common Pleas to a certain place, 2 Inst. 23; or by the statutes of Sewers, of Frauds, of Amendments, or the Bankrupt acts. The petition of right, where the subject claims to recover something from the King, is a proceeding unlike all others, and is the only one in which the Crown is defendant at the suit of a subject. Its peculiarity is pointed out in the judgment of Lord SOMERS in The Case of The Bankers, 14 How. St. Tr. 1, 83, which shows that, in some sense at least, the Crown must have a direct interest in every such proceeding. The distinction between interests which the Crown has in virtue of the prerogative and rights which it has in common with every subject is noticed, with reference to the construction of statutes not expressly including the Crown, in Rex v. Archbishop of Armagh, 8 Mod. 6, 8, S. C. 1 Stra. 516.

Then, further, no writ of error lies at the instance of *a suppli*376]

ant's representative. Whether or not the suppliant himself could have brought error it is needless to inquire ; though it may be contended, by analogy to King v. Simmonds, 7 Q. B. 289 (E. C. L. R. vol. 53), that he could not. A writ of error is, for some purposes at least, a new suit: there are new rights and liabilities under it; and the lien of attorneys is altered. The terms of the petition and of the endorsement on it make it peculiarly the proceeding of the suppliant as an individual. The Attorney-General is authorized to defend only in the particular suit. It is not enough to say that right will not be done according to the endorsement: the representative may present a fresh petition. If the suppliant died between verdict and judgment, it is clear that a new petition must be presented, the Crown not being bound by stat. 17 C. 2, c. 8. The hardship here is not greater. Perhaps the representative might petition the Crown for liberty to go on with the writ of error; but there cannot be any proceeding on a petition of right without some license from the Crown. [WILLIAMS, J.-If there were a fresh petition of right in this case, would not the former judgment be a bar ?] It would not be an estoppel, for want of mutuality. [MAULE, J.-According to Mr. Smith's note on The Duchess of Kingston's Case, 2 Smith's Lead. Ca. 438, mutuality is not always necessary to an estoppel.] It is sufficient reason for quasbing this writ that the proceedings must be fruitless for want of any available process towards execution. [MAULE, J.—The difficulty as to execution is less in the case of a petition of right than in any other instance, because, from the nature of the proceeding, *377] execution follows spontaneously upon *judgment.] The parties

] here having been changed, the only mode in which the administrator could enforce proceeding in error would be by scire facias ad audiendum errores : that process would be necessary according to the

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