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 [*374 matters against the King; though the words of the clause are "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 a 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 a 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 [*375 statutory words will bind the Crown, though not named, are thus stated in the Case of Ecclesiastical Persons, 5 Rep. 14 a, 14 b. "In 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 quashing 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, execution follows spontaneously upon *judgment.] The parties *377] 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

practice as between subject and subject, but cannot issue against the Crown. A scire facias quare executionem non is clearly inapplicable: and, if there be no scire facias, the Crown has not an opportunity of alleging anything that had happened since the judgment: as payment. It follows that a writ of error does not lie. Even if this were otherwise, the Court would not allow a writ of error to go on merely to save time and expense to an administrator, when a fresh proceeding was open to him; especially where there was no actual damage to the estate. In a quo warranto, if judgment of ouster went against the defendant and he died, the executor could not bring error. [PARKE, B.-If the principle is that a prejudice of whatever kind is sufficient ground for a writ of error, it may be said that error lies wherever the deceased party would have gained something by a judgment in his favour. Could an heir bring error if a writ of right were determined against his ancestor in a stage which did not prevent further proceedings? If, indeed, the estate in the executor's hands would be burdened with costs by the judgment, a different question would arise.] Cur. adv. vult.

WILDE, C. J., in Trinity term (June 6th), 1848, delivered the judgment of the Court.

In the case of the Baron de Bode, administrator of his late father, a motion was made by the Attorney-General to quash a writ of error in this Court; and *cause was shown by my brother Manning in a

very elaborate argument.

[*378

The Attorney-General relied upon two objections on the part of the Crown. The first objection was that a writ of error could not lie on a judgment in a petition of right, by an executor; but this point was not strongly pressed by the Attorney-Genera: and indeed we think it could not be; for a writ of error may be brought by a privy who has a benefit by the reversal; see Com. Lig. Pleader (3 B 9); and the administrator in this case would have a benefit; for then he might recover the debt found to be due by the inquisition, which is a debt of record, and which the judgment has prevented him from recovering.

The second and more serious objection was that a writ of error would not lie to this Court in a case in which the Crown was a real party, because it was said that the statute by which this Court is constituted, 11 G. 4 & 1 W. 4, c. 70, s. 8, did not bind the Crown. That statute enacts that writs of error on any judgment hereafter shall be made returnable only before the Judges and Barons, or Judges only, of the other courts; and it was argued that such general words did not affect the Queen's right to bring or have a writ of error brought to the House of Lords. We think that the Crown is bound by that statute. The rule on the subject is stated in Com. Dig. Parliament (R 8); and it is very fully explained in the Attorney-General v. Allgood, in Parker's Reports, page 1. A difference is there remarked on between statutes which name

U

parties, plaintiffs or defendants, which do not apply in *words to *379] the Crown, and statutes which use words sufficiently large to include the Crown, which is the present case, and where the Crown is to be taken out of the statute by construction. All the authorities were brought before the Court in Rex v. Wright, 1 A. & E. 434 (E. C. L. R. vol. 28); and they were mostly referred to in the argument before us. In the last case, before the Court of Error, the Court held that they had jurisdiction where the Crown was a party in a criminal proceeding; and the Court observed that the words of the act extended to writs of error on any judgment given in "any of the said courts ;" and that, the act being passed expressly for the more effectual administration of justice, as appears by the preamble, there was no principle for implying the exception of the Crown in a criminal proceeding. Nor is there, in our judgment, any such ground for implying an exception in the present case. If any special prerogative of the Crown were thereby taken away, -as, for instance, if there should be any special tribunal for the decision of writs of error brought by the Crown or where the Crown was a party, or the Crown had the option, which a subject had not, to have a writ of error against a judgment in its favour in any court that it should elect,doubtless such a prerogative would not be taken away, according to 2 Inst. p. 191, and Attorney-General v. Allgood, Parker, 1. But this is not such a prerogative; and, in cases of writs of error, the Crown and the subject are, as to the Court to which they are to be brought by the common law, on the same footing.

It was further objected in this case, on behalf of the *Crown, *380] that a scire facias ad audiendum errores would become necessary in prosecuting the suit, and that no such proceeding could be had against the Crown; which, it was argued, proved that the writ of error did not lie. It appears, however, to be clear that such a writ of scire facias has never been deemed to be necessary as against the King; for as it is said in Marsh's Case, 1 Leon. 325, "the King is always presumed present in this Court, quod tota curia concessit; and therefore there needs not any garnishment by scire facias." So it is said in Fitzherbert's Natura Brevium, 21 H, that, if a false judgment be given for the King in any suit or action, the party aggrieved shall have a writ of error, and assign his errors, without suing forth any scire facias against the King ad audiendum errores, because the King is always present in Court. The Court is therefore of opinion that the rule which has been obtained by the Attorney-General must be discharged.

Rule discharged.

Feb. 7, 1849. After the delivery of this judgment, Welsby, on the part of the Crown, asked for time to join in error. The Court observed that no long time was requisite, and ordered that the Crown should join in error within twenty-four hours, which was accordingly done, June 7th, 1848.

*The writ of error was argued in this vacation. (a)

[*381

Manning, Serjt., for the plaintiff in error, argued the case in detail on behalf of the suppliant, with reference to various points disposed of by the judgment in the Court below; but a report of his argument is deemed unnecessary, as the judgment of the Court of Error proceeds entirely on the construction of stat. 59 G. 3, c. 31. At the close of his argument, PARKE, B., stated that the Court did not think that it would be necessary to hear Sir J. Jervis, Attorney-General, who appeared for the Crown; but that notice would be given to him, in case the Court, upon consideration, should find any difficulty in affirming the judgment below. Cur. adv. vult.

PARKE, B., now delivered the judgment of the Court.

This case has been most elaborately argued, and every authority bearing upon the questions arising on this writ of error brought before us. The Court intimated in a very early stage of the proceedings their wish that the attention of the learned counsel for the suppliant should be directed to the substantial question in the case, whether the plaintiff in error had shown any right to the money claimed, or any part of it. At the close of my brother Manning's argument, we felt *that [*382 the difficulty in the way of the suppliant's recovery could not be removed. We have had the opportunity of considering this point with attention and we are all clearly of opinion that he has not established any right to any part of this money.

In our view of the case, we need not give any opinion whether a petition of right is a remedy applicable to the recovery of money from the Crown. We need not say whether the Baron de Bode (unquestionably a British born subject) was entitled by virtue of the conventions with the French government to compensation from them for the confiscation of his immovable property in Alsace, under the circumstances found in the inquisition. It is unnecessary to consider whether the petition is defective in not stating, and the inquisition in not finding, that the suppliant was the only person whose claim remained unsatisfied, so as to entitle him to all the unappropriated fund which he claims. Assuming that all the objections made in these respects to the suppliant's right to recover are untenable, we are still of opinion that our judgment must be against him; and the grounds on which our opinion is formed may be stated in a few words.

By the treaties and conventions which are mentioned in the inquisition, and in stat. 59 G. 3, c. 31, it appears that the French government under

(a) February 2d and February 3d. Before COLTMAN, MAULE, and WILLIAMS, Js.; and PARKE, ALDERSON, ROLFE, and PLATT, Bs. Several members of the Court proposed to withdraw, on the ground that they had been engaged as counsel in former proceedings taken by the Baron de Bode with reference to the subject of the present claim. The objection, however, was waived on both sides. WILLIAMS, J., was one of the Commissioners by whom the inquisition wa taken.

For the record below, in this case, see Baron de Bode's Case, 8 Q. B. 208 (E. C. L. R. vol. 5.