title, and puts me out and detains the possession from me, I have then no remedy but only by petition.' detention of Crown. It may be, however, that after the wrongful seizure the Remedy for Crown grants the land over by letters patent to another; by patentee in such a case there seems to be no necessity for the party grieved to bring his petition against the Crown, since he can recover possession of the land from the king's patentee as a trespasser by the appropriate common law remedy; "and the reason of this is because that when his highness seizeth by his absolute power contrary to the order of his laws, although I have no remedy against him for it, but by petition for the dignity's sake of his person, yet when the cause is removed and a common person hath the possession, then is mine assize revived, for now the patentee entereth by his own wrong and intrusion and not by any title that the king giveth him, for the king had never title ne possession to give in that case. And this appeareth in M. 4, Ed. IV., f. 21 & 25, and M. 24, Ed. III., f. 64, and Travers 34 & 35. Like law is it if I have a rent-charge out of certain land, and the tenant of the land enfeoffeth the king by deed enrolled; now during the king's possession I must sue by peticion, but if his highness enfeoffe a stranger I may distrain for my rent upon a stranger; and so it is in the cases before, where a man may have his 'traverse' or 'monstrans de droit:' if the lands be once out of the king's hands the party then may have his remedy that the common law giveth him, for in all these cases a peticion did lye only for the dignity of his person and not for the right that he had to the possession of the thing" (ƒ). The reported cases seem to be in accordance with this opinion (g), and extend the law to cases where the title of (f) Staunford's Prerog. Chap. xxii., fol. 74 b, 75 a. (g) Y. B. 8 Hen. 4, 21; Bro. Abr. tit. Pet. 8; Y. B. 9 Hen. 4, 4; Bro. Abr. tit. Pet. 9; Y. B. 7 Hen. 4, 33; Bro. Abr. tit. Pet. 7 Seizure under colour of right by office found. Whether petition can be sued where monstrans the king is by conveyance as if a disseisor conveyed the land to the king (h). The second alternative is where the Crown is seised under a title which is good until shewn to be bad. Now the most usual cases of this sort were those in which the Crown came into possession of lands by the erroneous finding of an office, and in view of such an occurrence (i) it may be well to consider whether in such cases a petition of right is sustainable, or whether there is any peculiar and appropriate remedy. It must be admitted that the two remedies which have hitherto been considered appropriate are "monstrans de droit" and "traverse of office." Without entering into the origin of these two methods of proceeding, it will be sufficient to say that they were given, at least in the wider forms in which they are now known, by statute (k) for the relief of persons dispossessed by offices; what we have now to see is whether they exclude or exist side by side with petition of right. That originally these remedies by "traverse" and "monstrans;" were given to the subject in order to enable him to avoid the expensive and dilatory method, as it then then was, of available. petition, cannot be denied. Coke (1) himself says as much. There seems, however, no authority for saying that they were more than alternatives to petition of right; of which the subject might, and for the reasons above stated, usually did, gladly avail himself, but that they did not exclude the ulterior remedy by petition. Thus we have a dictum (m) of the (h) Saddler's Case, 4 Coke, 59 b. (i) Offices are apparently still held, Stephen's Blackstone (8th ed.), vol. iii. p. 666; and regulated by 12 & 13 Vict. c. 109, s. 20. (k) 34 Edw. 3, c. 14, and 36 Edw. 3, c. 13. (7) Saddler's Case, 4 Rep. 57, where a very full and interesting account of the origin and nature of these remedies will be found. (m) Bro. Abr. tit. Traverse d'office, 18. In case ou home poet traverse un office il poet suer per peticion quod non negatur (per Spilman). time of Edw. IV., not so very long after these remedies had been introduced, to the effect that in every case in which "traverse" or "monstrans" lies there petition lies too; and although Staunford does not express any opinion upon this point, subsequent text-writers have certainly spoken in a sense consistent with the above dictum : Manning saying (n) “that in all cases in which an office may be traversed, petition lies; and Chitty (0), that "although not so appropriate, it is sustainable." It would seem, therefore, in cases where the taking is under colour of right, by the finding of an office a petition. of right is sustainable. There is, however, another fact which should be noticed in connection with this branch of the subject. We have seen that where the king's wrongful title is by matter "in pais," if he grant over his interest, the party grieved is not put to his petition, but can recover at common law against the patentee (p); this does not seem to be the case "when the king's title accrues to him by a judicial record, or as Gascoigne (9 H. 4) says by judgment of record; there although the king grants all his estate over, yet the party grieved was put to his petition, and should have 'scire facias' against the patentee, as in case of attainder recovery, etc." (q). (n) Excheq. Prac., 2nd ed. p. 121. (p) Supra, p. 71. (2) Saddler's Case, 4 Coke, 59 b. Petitions for damages. The state of the law CHAPTER X. PETITIONS OF RIGHT FOR DAMAGES FOR BREACH In this chapter we propose to discuss the cases in which it has been decided that petitions of right will lie for the recovery of damages for breach of contract. As this principle seems now to be well established (c), it may appear to be superfluous to criticise either it or the grounds upon which it rests; the general interest of the question, and the greatness of the interests it affects, may, however, afford some excuse for so doing, to say nothing of the possibility of the decision upon which it is based being hereafter reviewed. As the whole question was fully discussed in the very recent case in which the foregoing principle was laid down, it appears to be a convenient method of treating the subject to set out the decision therein, and then to shew the grounds upon which it proceeded; and this is the course which will be adopted; a few words, however, are necessary by way of preface. It should be borne in mind that at the time when the previous to question of the Crown's liability for breach of contract came before the Court it was practically a new one. Proceedings upon petition of right, which, so long as they had continued Thomas v. Reg. (c) Thomas v. The Queen, L. R. 10 Q. B. 31; 44 L. J. Q. B. 9; 31 L. T. 439; 23 W. R. 176; Windsor und Annapolis Railway Company v. The Queen and the Western Counties Railway Company, L. R. 11 App. Cas. 607; 55 L. J. P. C. 41. in use had been confined to the recovery of specific property, after lying dead for about two hundred years, had been revived but a few years previously, and very little was known about the subject. To this feeling of uncertainty is probably due the alacrity with which every one concerned in a petition of right used to concur in turning it, when possible, into an ordinary suit (d). Upon the question of the Crown's liability in contract there was no authority whatever. It is true that Buller, J., in the year 1786 had, while presiding at nisi prius (e), uttered a dictum about petitions of right for breaches of contract, which had been echoed in Oldham's (ƒ) and the Baron de Bode's Cases (g), and received a sort of sanction from what had taken place upon Frantzius' (h) and Churchward's (i) petitions; and it is also true that in two (k) cases brought under the Petitions of Right Act, 1860, the Court had, in giving judgments therein, that petitions would not lie for torts, spoken of petitions in contract in terms which were capable of conveying the impression that such petitions if sued would be successful; but still, notwithstanding these expressions of opinion, there was nothing which could be looked upon in the light of direct authority, and the Court had to examine for itself the original grounds of this method of proceeding. (d) Taylor v. Att.-Gen., 8 Sim. 413; Clayton v. Att.-Gen., 1 C. P. Cooper's Reports in Chancery, 97. (e) Macbeth v. Haldimund, 1 T. R. 178, infra, p. 67. (ƒ) 6 Sim. 220. (g) 8 Q. B. 274; 10 Jur. 773. (h) 2 D. & J. 126; 27 L. J. Ch. 368. This case was in contract, but compromised by payment to the suppliant. (i) L. R. 1 Q. B. 173; 13 L. T. 57; 6 B. & S. 808. This case was in contract, and decided on the merits against the suppliant, but the Court (at p. 186), clearly intimated that they were of opinion that a petition of right would lie in contract. (k) Tobin v. Reg. 16 C. B. (N. S.) 310; 33 L. J. C. P. 199; 10 L. T. 762; 12 W. R. 838; 10 Jur. (N.S.) 1029; Feather v. Reg. 6 B. & S. 294; 35 L. J. Q. B. 200; 12 L. T. 114. |