lie for damages for breach of contract, being as follows: "Indeed I take it to be generally true that in all cases where the subject is in the nature of a plaintiff to recover anything from the king, his only remedy at common law is to sue by petition to the person of the king. And to shew that this is so, I would take notice of several instances. That in the case of debts owing by the Crown the subject's remedy was by petition, appears by Aynesham's Case (m). which is a petition for £19 due for work done at Carnarvon ;" upon which they remarked that: "Whether Lord Somers was right or not in thinking that the entries in Ryley are petitions of right, there can be no question that he here expresses a distinct and considered judgment that a petition of right would lie against the Crown for a simple contract debt, such as wages. And, unless we overrule this judgment of his, which is not opposed to Holt's reasoning, and cannot therefore be considered as necessarily overruled by the House of Lords, we must in this case give judgment for the suppliant, and we do not find that this opinion of Lord Somers has been questioned since, but rather the contrary."

text

The concluding portion of the judgment was as follows: Dicta of "In Comyns' Digest, D. 78, it is said that petition lies if the writers and king does not pay a debt, wages, &c., citing Lord Somers' judges. argument 85; and Chief Baron Comyns expresses no doubt as to the soundness of the doctrine thus cited by him. It appears in Macheth v. Haldimund (n) that Lords Thurlow and Buller, J. (both obiter, it is true), expressed an opinion that a petition of right lay against the Crown on a contract, and a similar opinion seems to have been expressed by the Barons of the Exchequer in Oldham v. Lords of the Treasury (0), and in Baron de Bode's Case (p), in which the point

(m) 1 Rot. Parl. 164 b; Ryley, 251. (n) 1 T. R. at p. 178.

(0) 6 Sim. 220.

(p) 8 Q. B. 274; 10 Jur. 773.

The judg

ment examined.

was raised though not decided. Lord Denman declares' an unconquerable repugnance to the suggestion that the door ought to be closed against all redress and remedy;' a doctrine much resembling what Lord Somers calls Lord Holt's 'popular opinion' that if there be a right there must be a remedy. In Viscount Canterbury v. Attorney-General (q), it was decided that the sovereign could not be sued by petition of right for negligence, and in Tobin v. Reg. (r), that the sovereign could not be sued in petition of right for a wrong. But in neither case was any opinion expressed that a petition of right will not lie for a contract, Erle, C.J., expressly saying (s), that claims founded on contracts and grants made on behalf of the Crown are within a class legally distinct from wrongs;' and in Feather v. Reg. (t), it is assumed in the judgment that it does lie where the claim arises out of a contract, as for goods supplied to the Crown on the public service.'

"We think, therefore, that we are bound by the Bankers' Case to hold that the judgment on this demurrer should be for the suppliant."

Such was the judgment in Thomas v. The Queen, establishing the principle that petition of right lies for damages for breach of contract.

The grounds upon which the Court seems to have based its judgment are as follows: (1) The authorities shewing that petition of right was not confined to cases in which a judgment of "amoveas manus" could be awarded; (2) The authorities shewing that it lay for chattels; (3) Lord Somers' "distinct and considered judgment" that it would lie for a simple contract debt as confirmed by the dicta of (9) 1 Phill. 306; 12 L. J. (Ch.) 281; 7 Jur. 224.

(r) 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.

(s) 16 C. B. (N.S.) at p. 355; 33 L. J. (C.P.) at p. 206.

(t) 6 B. & S. 294; 35 L. J. (Q.B.) 200; 12 L. T. 114.

subsequent judges. Each of these grounds will be considered in turn.

,, judgment on a peti

tion for

value an

manus?

The authorities shewing that a petition of right was not Was the confined to cases in which a judgment of "amoveas manus could be awarded are, in the opinion of the Court, those in which a grantee from the Crown with a warranty recovered amovcas by petition in value against the Crown when ousted by a third party. “On such a petition," the Court said, "the judgment could not 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."

The question is whether this statement is correct?

No authority is cited for this proposition, the decision in the case quoted (Earl of Warwick v. Duchess Dowager of Clarence) being, as the Court admitted, something different. Other sources of information have to be sought in order to test its probability.

Coke's definition of a warranty is as follows: "A warrantie is a covenant real annexed to lands or tenements whereby a man and his heirs are bound to warrant the same, and either upon voucher or by judgment in a writ of warrantiæ cartæ to yield other lands and tenements (which in the old books is called 'in excambio') to the value of those that shall be evicted by a former title " (u).

The course of proceeding upon a warranty between subject and subject was shortly as follows: When the grantee was sued and vouched his warrantor to warranty, the warrantor or vouchee was summoned by a writ addressed to the sheriff (x). If the vouchee made default after summons, (u) Coke upon Littleton, L. 3, c. 13, s. 697.

(x) "Summoneas per bonos summonitores A quod sit coram justiciariis nostris & tali die ad warrantizandum B tantum terræ cum pertinentiis in tali villa quam E in eadem curia coram iisdem justiciariis & clamat ut jus suum versus praedictum B et unde idem B in eadem curia nostra

then a writ of" capias ad valentiam " issued to take as much land of the warrantor as was equal to the value of the land in question and if he continued in default then judgment was given that the demandant should recover the land against the tenant, and the tenant an "excambium ad valentiam" out of the land of the warrantor. Upon this, there issued a writ (y) for the demandant commanding the sheriff "quod habere facias seisinam," and another for the tenant "de excambio" against the warrantor, the judgment being Recuperat terram suam versus B per defaultam B et B in miseracordia et habeat de terra ipsius C in loco competenti excambium ad valentiam" (z).

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If the warrantor appeared, and after trial judgment was given against him, the judgment was in effect the same.

Such was the procedure between subject and subject; it appears to have been very nearly the same where the Crown. was concerned.

In the first place it is clear that the king was bound to warrant equally with a subject (a), but properly speaking he could not be "vouched," because "voucher" implied summons by writ, and the king of course could not summon himself. The grantee's course was to pray" aide le roy," the form of the prayer being "Sine rege respondere non potest eo quod habet chartam suam de donatione per quam si amitteret rex ei teneretur ad excambium" (aa). Now, "aid prier"

corum iisdem justiciariis nostris vocat ipsum A ad warrantizandum versus prædictum E. etc., Reeve's "History of the English Law," 1 vol. 440; Bract. 383 b.

(y) The form of this writ was as follows:-Rex vicecomiti & tibi precipimus quod eidem A de prædicta terra cum pertinentiis sine dilatione plenariam seisinam habere facias et de terra ipsium C in balliva tua habere facias eidem B excambium ad valentiam prædictæ terroe sivie dilatione per visum legalium hominum. Teste, etc. Bracton, f. 387 a.

(2) Reeve, "History of the Common Law," 1 vol. p. 443. (a) Bract. 382 b.

(aa) Reeve, "History of the English Law," vol. i., 439; Bract. 382 b.

was not a process originally applicable to cases of warranty, but only where "a man was impleaded and could not make defence without aid of some other" (b), whether the king or a common person, and hence an ambiguity arose, whenever "aide le roy " was sought, whether it was in the nature of a voucher or merely on account of feebleness of title, the entry of it upon the roll being the same in either case, or "all one" (c) as the reporter says. It was subsequently settled, in the very case quoted (d) in the judgment, that where it was in the nature of a voucher the special matter should be entered.

The above was the only difference in the proceedings where the Crown was concerned, and the "excambium" had to be rendered just as much in the one case as in the other.

The next thing which has to be considered is the nature and quality of the "excambium." It seems to have been lands and tenements, and nothing else. Coke in the foregoing passage defines it as "the other lands and tenements" yielded upon voucher, and the course of the proceedings points to the same conclusion. Under the " capias ad valentiam" the sheriff appears to have taken only lands; the judgment was for the value "in lands," and the writ of execution issued "for lands;" and this also is the view of the excambium taken by modern authorities (e).

If then the "excambium" was lands, what would be the proper judgment upon a petition seeking to recover it? That one, it would seem, which was usual in cases where land was recovered from the Crown by a subject. But in such cases the judgment was one of amoveas manus, and this is (b) Com. Dig. tit. Aide Prier., B. (B. 1).

(c) Bro. Abr. tit., Aide le Roy, 3.

(d) Y. B. 9 Hen. 6, 3.

(e) Reeve's "History of the English Law," vol. i., p. 447; Roscoe's "Real Actions," vol. i., p. 273.