must be left to Her Majesty's discretion; no petition of right has ever been held applicable to such a case."

Blackburn, J., in giving judgment, equally repudiated the notion that the Sovereign could be, under the circumstances, the agent of the subject; he then went on to show that all that the suppliant was entitled to on the facts was to have his claim investigated by the Crown, but that he had asked more, viz., that his claim be paid; then would a petition of right lie; upon which he said: "It is quite impossible to say that Her Majesty is in any sort of position of having received the money to the use of this person; and to say that there has been privity of contract between this person and the Queen, either an express or implied contract, so as to make her the agent to hold the money for him as if she had been a subject. According to Williams v. Everett, it seems to be out of the question. There is nothing in the least approaching to such a contract."

He then goes on to show that though it would have been more plausible yet it would have been equally erroneous to call the Queen a trustee for the subject, and attempt to recover by those means; as it has been held that a trust was not enforceable in any way against the Crown.

Lush, J., said that whether the claim be treated as a demand of a debt due from the Crown to the suppliant for money had and received by the Crown to his use, or whether it be treated as the claim of a cestui que trust to charge the Queen as trustee with receiving the money, he entertained not the slightest doubt that it must fail. In the first place, in receiving the money the Queen was not the agent, actual or constructive, of any subject whatever; neither was she "No doubt a duty arose as soon as the money was received to distribute that money amongst the persons towards whose losses it was paid by the Emperor of China; but then the distribution when made would be not the act of an agent

trustee.

accounting to a principal but the act of a Sovereign in dispensing justice to her subjects. For any omission of that duty the Sovereign cannot be held responsible. The responsibility would rest with the advisers of the Crown; and they are responsible to Parliament and to Parliament alone. In no view whatever can an individual subject have any such claim as the suppliant pretends to have by this petition, viz., a claim to coerce the Sovereign by judicial proceedings into the payment over of a part of the indemnity received in her sovereign character from the Emperor of China.

This case was taken to the Court of Appeal (b), where Lord Coleridge, C.J., delivered the unanimous decision of the Court, consisting of himself, Lord Justice Mellish, Sir Baliol Brett, and Sir Richard Amphlett. After pointing out that the Queen had not received the money "for the purpose of paying the suppliant's claim " as he alleged in his petition, but a lump sum divisible amongst all claimants, the Court went on to say that although they did not mean to decide that the Crown could never be an agent or a trustee, it was sufficient for them to say that in the case before them the Crown certainly was not, and continued as follows: "We do not indeed doubt that on the payment of the money by the Emperor of China there was a duty on the part of the English Sovereign to administer the money so received according to the stipulations of the treaty. But it was a duty to do justice to her subjects according to the advice of her responsible ministers; not the duty of an agent to a principal or of a trustee to a cestui que trust. there has been a failure to perform that duty, which we only suggest for the sake of argument, it is one which Parliament can and will correct, not one with which the Courts of Law can deal.”

If

More recently there has been another attempt in the (b) L. R. 2 Q. B. D. 69; 46 L. J. Q. B. 258; 36 L. T. 190; 25 W. R. 333.

Kinloch

v. Reg.

same direction: this is the case of In re the Banda and Kirwee Booty, Kintoch v. The Queeen and the Secretary of State for India in Council (c).

The facts in this case seem to have been as follows:

The suppliant was an army chaplain, attached to Sir George Whitlock's column, which in the Rebellion of 1857 captured the booty in question; various claims having arisen to this booty, her Majesty by an order in council, dated June 1864, referred the question of their validity to the Court of Admiralty, by a judgment of which, delivered June 1866, the whole was awarded to General Whitlock and his forces subject to a claim of Lord Clyde's.

By royal warrant of the 22nd November, 1866, Her Majesty granted to the Secretary of State for India in Council the captured property, "in trust" to distribute the same amongst the persons who in the judgment of the Court of Admiralty were then entitled to share. The suppliant having failed in an action against the Secretary of State for India in Council for an account of such sums as had been already distributed and a distribution of the residue, now brought his petition of right praying that the Secretary of State for India in Council might be directed. to render accounts of the booty, and that the rights of the persons entitled to share in it might be determined. To this petition the Crown demurred (cc), which demurrer being sustained before Mr. Justice Kay, the suppliant proceeded to the Court of Appeal.

The Court dismissed the appeal. In giving judgment, Lord Justice Cotton, after stating the facts, said that in

(c) The reports of this case will be found as follows: before Mr. Justice Kay, Times, 1882, Nov. 22; before Court of Appeal, W. N. 1884, p. 80, and Times, 1884, March 22.

(cc) On the ground that the petition was bad in law from not disclosing any cause of action on which the suppliant was entitled to sue or any right to any of the relief sought.

order to succeed, the suppliant must shew (1), either that the Crown had property of his in its hands or the hands of its agents, or (2), that there was a contract which entitled him to relief. The second alternative was out of the question in the present case, and the only question was whether the suppliant had established that he had property of which the Crown or its agents were in possession. On the two orders in Council and the judgment the suppliant claimed an interest in the nature of property; but even though the judgment of the Court of Admiralty assumed that a "grant" by the Crown had been made to the suppliant by the order in council of 1864, yet from the recitals and the operative part of the order it was clear that no grant had been made; the whole order proceeding not on the footing that Her Majesty was thereby granting anything, but that a grant should hereafter be made to those whom the Court of Admiralty should decide had captured it; no property had then thereby passed. Then no grant having been made, the property still remained in the Sovereign, and so could not be recovered by petition of right, no property of the suppliant's being in the hands of the Sovereign.

Lord Justice Bowen was of the same opinion: he said that the foundation of the claim was a right against the Crown. The appellant must make out that there was some property, real or personal, belonging to him, either at law or in equity, which was in the hands of the Crown, its servants or agents. He based his claim on the documents to which he referred, and which he said, either separately or collectively or in conjunction with the Army Prize Act, had vested in him some right of property; his lordship then came to the conclusion that no grant had been made by the Crown giving him any property in the booty, and that his appeal must therefore fail.

Seizure

must be

wrongful.

II.—OF THE TAKING AND DETAINING BY THE CROWN.

Having concluded the first part of the subject which deals with the species of property which may be recovered by a petition of right, we have now to consider the second, which is the kind of taking and detaining which entitles the subject to a suit by petition of right.

We need hardly say that where the taking and detention are lawful, no petition will lie. There are, however, two other possible alternatives, the taking and detaining, that is to say, may be either ab initio wrongful, or under a title which is good until shewn, as it can be, to be bad. The Crown may, that is to say, in the words of an old judge, be seized "a tort ou a droit" (d); this latter expression perhaps needs some explanation. Suppose, for the sake of illustration, it is found by inquest of office that A. died seised of certain lands, intestate and without heirs, and the Crown thereupon entered and became seised of the lands in question, such entry and seizure would be lawful (“ a droit "), but should the finding be proved to be erroneous, then the possession of the Crown becomes wrongful; and this would be the same were goods and chattels and not land in question.

Having thus explained the meaning of the foregoing phrase, we have now to see whether the remedy by petition of right is applicable to both cases.

Let us first take the case of the seizure being "a tort," or wrongful. Now so long as the property which has been wrongfully seized is detained in the immediate possession of the Crown, there seems little doubt that petition is the proper and only means of recovering it, and upon this point we may take Staunford's opinion as conclusive, when he says (e)," where the king doth enter upon me, having no (d) Per Wilby, J. Y. B. 24 Ed. 3, 55.

(e) Prerog. Chap. xxii. p. 74 b.