Thomas

v. Reg. stated.

The

petition.

After this short preface, which was necessary to enable the reader to understand how it was that the Court had in the case of Thomas v. The Queen to go so far afield for authorities, the decision in that case will be examined.

In this case unliquidated damages for breach by the Crown of a contract entered into between the suppliant and the Crown were claimed; the suppliant's case was succinctly stated in his petition, which was as follows:

1. That previously to the year 1859 the suppliant had devised and invented a system of heavy rifled artillery, and desired that the same should be introduced into and adopted by the public departments of Her Majesty's service; and that the suppliant having subsequently had various interviews and correspondence upon the subject with the then Secretary of State for War, it was mutually agreed by and between the suppliant and the Secretary of State for War that in consideration of the suppliant referring such invention to the ordnance select committee at Woolwich, and of such committee receiving from the suppliant such descriptions and drawings or models as might be necessary for their elucidation, to be retained for future reference and to enable the committee to give an opinion on the subject, and of the suppliant attending the committee in order to give his personal explanation, that in the event of the invention being approved of and being adopted in Her Majesty's service a reward in that behalf should be given by Her Majesty's Government to the suppliant, and that the amount of the reward should be determined by Her Majesty's master-general and board of ordnance. Averment that all conditions precedent have been fulfilled, yet the amount of the reward had not been determined, nor had the same or any part thereof been paid to the suppliant.

2. That the suppliant having invented certain artillery

constructed upon a new principle, and having in his possession certain plans and drawings explaining the same, and having incurred heavy costs, charges, and expenses in perfecting the invention, in consideration of the suppliant showing and delivering up his plans to Her Majesty's Government, Her Majesty's Government promised the suppliant that in the event of certain trials then about to be made of the artillery showing a successful result as far as the principle was concerned, the expenses to which the suppliant had been put should be reimbursed to him by the Government. Averment that all conditions precedent had been fulfilled, yet Her Majesty's Government had not reimbursed the sum to the suppliant.

demurrer.

The Crown demurred to this petition on the ground The "That a petition of right will not lie for any other object than specific chattels or land, and that it will not lie for breach of contract nor to recover money claimed either by way of debt or damages."

in favour

The argument upon the demurrer is not reported, but The judgthe judgment of the Court (Blackburn, Quain and Archi- ment. bald, JJ.) overruling the demurrer was briefly as follows. After pointing out that the form of judgment provided by Bovill's Act would be applicable to a case in which it Reasons appeared to the Court that the plaintiff was entitled to of the be paid damages for the non-fulfilment of a contract, and petition. alluding to the "general impression that existed at the time of the passing of the Act that a petition of right was maintainable for debt due or a breach of contract by the Crown," the Court proceeded to examine the grounds upon which this general impression was founded. In the first place the Court admitted that there was no statute giving any such right, which if it existed at all must exist at common law, the investigation of which could only be approached with diffidence on account of the danger of mis

Reasons against (1) the

absence of precedent, (2) the inferences

interpreting the antiquated authorities to which recourse must be had.

The argument against the petition of right lying in such a case it thought was entirely grounded on the absence of ancient precedents of petition for damages arising from a breach of contract and from the inferences deducible theretherefrom. from. These inferences were, first-that in the early times, when the remedy was formed, it was confined to cases in which a freehold interest was concerned, that being then the only interest of sufficient consequence to lead to the passing of a remedy; secondly-that from respect to the king the remedy was confined to cases in which redress could be granted by an order to the king's officers to withdraw; and did not extend to cases in which, unless the king chose to pay, there could be no effectual relief unless the king's treasure or lands and chattels were taken in execution; and that it could not be supposed that a judgment would be given which could not be enforced.

These inferences rebutted.

Against these inferences, however, the Court said, there should be set these two facts. First, that the last inference was not warranted, because in a certain class of cases it appeared that a petition of right lay where judgment could not have amounted to more than a declaration of the title to redress, leaving it to the Crown to give that redress afterwards. For instance where, as in the case of the Earl of Warwick v. Duchess Dowager of Clarence (1), the Crown had granted lands with a warranty: there, if the grantee was sued and prayed "aide le roy," and a writ of procedendo was thereupon awarded enabling the suit to proceed; then if the grantee could make no defence against the demandant, he lost the land, but had the same recompense in value against the Crown which he would have against his vouchee if a subject; and for such recompense in value a petition of (1) Year Book, 9 H. 6. Pasch. pl. 7, folio 3.

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right lay. On such a petition the judgment could not, the Court said, have been an amoveas manus, but must have been either a dry judgment that the suppliant had a right to recompense in value, or one giving an execution against the land of the king."

Secondly, and in answer to the first inference, it was clear by authority that a petition lay for chattels as well as freeholds; and, if the petitions on the Rolls of Parliament were petitions of right, for damages as well.

Bankers'

Whether these Parliamentary petitions were or were not petitions of right the Court declined to say, nor did it think it necessary to do so, for in the opinion of the Court the reasons given by Lord Holt in the Bankers' Case (k) in The favour of the judgment, which was ultimately adopted by Case. the House of Lords, as well as the reasons given by Lord Somers for reversing it, both led to the conclusion that a petition of right lay in such a case as the present; and the Court added that as its judgment "mainly proceeded on the authority of that case, they would state it at length."

"Charles II. had by letters patent under the great seal granted to the bankers who had been deprived of their money by the shutting of the Exchequer, and to their creditors, annuities in fee at the rate of 6 per cent. on the moneys thus detained. These annuities were charged on the hereditary revenue of the excise. No pains had been spared to make the letters patent as binding as possible. They contained, inter alia, a covenant from the king for himself, his heirs and successors, under the great seal, that due payment should be made, and that if there was any defect in these letters patent the king, his heirs and successors, would make a further grant; and the treasurers, &c., were commanded to give to the patentees tallies, and to pay them. The annuities were paid for four years, and then the (k) 14 Howell, St. Trials, 1.

I

The judg

ments thereon.

Lord

Somers'

further payment ceased. During the reigns of Charles II. and James II. the bankers took no steps at law to enforce their claims, but in the first year of William and Mary (1689) they commenced proceedings, which were as follows. In Wroth's Case (7) they found a precedent in which, upon a petition to the Barons of the Exchequer praying that letters patent creating an annuity by the Crown should be enrolled, and execution in the shape of a writ commanding the treasurers and chamberlains of the Exchequer to pay the annuity and its arrears had been successful, and this precedent the patentees in the Bankers' Case followed. The Attorney-General demurred to their petition. They were successful, however, in getting judgment in the Court of Exchequer, and in having that judgment ultimately supported in the House of Lords, after it had been reversed upon error being brought in the Exchequer Chamber, where Lord Somers delivered his celebrated argument in the case in support of the reversal."

Having concluded this summary of the facts of the case, the Court next dealt with the judgments delivered therein, viz., Treby's, C.J., Holt's, C.J., and Lord Somers's, in so far as they bore upon the question whether the patentees had a remedy by petition of right. Upon neither Treby's nor Holt's, however, was much stress laid, except to this extent that the Court was careful to point out that the latter certainly does not indicate that in his opinion there was not, in the case of a Crown debt, even the imperfect remedy of a petition of right;" and that he also maintains that "where there is a legal right against the Crown, there must be a legal remedy."

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The Court then proceeded to deal with Lord Somers' judgment. opinion, the passage in his argument upon which they relied, as supporting the contention that a petition of right would (1) Plowden, 452.