of the land, and it is admitted that they are not there wrongfully, then they must be there rightfully. But the only way in which they can be there rightfully is with the owner's consent. This, therefore, must be implied in the present case. They are, therefore, liable for use and occupation.

The Court, however, held that the action of the Government officer was an unequivocal tort, and that the Government in consequence were not liable (k).

(k) langford v. United States, 11 Otto, 341, cited also as 101 U. S. Repts. 341.

CHAPTER XI.

PETITIONS OF RIGHT IN EQUITY.

be sued.

AT the present time, and in the face of the numerous Whether such petipetitions of right claiming equitable relief against the tions can Crown which have been presented and allowed to proceed in the Court of Chancery, it seems too late to say that there is no authority for making such claims enforceable, and yet with some little qualification such a statement would be substantially correct.

In the first place, there is no such authority to be found in either Broke's Abridgment, Staunford's Prerogative, Comyn's Digest, Manning's Exchequer Practice or Chitty's Prerogative: what authority there is, therefore, must be of comparatively modern growth.

"Chancery

""

It is quite true that these last-mentioned authors recog- Early application nize that a suppliant may sometimes obtain relief by to the process issuing from the Chancery, as ancillary to and in aid of his common law right, instead of following out the explained. usual procedure upon petition of right; but they do not shew that a suppliant was ever entitled to equitable relief where he had no enforceable right at common law.

Thus, for example, the king having a rent-charge by wardship, grants it over in fee by letters patent to a stranger. Here the ward, when of age, will be entitled to bring his petition, or, if he prefers it, a scire facias from the Chancery to repeal the letters patent (a).

(a) Bro. Abr., tit. Pet. 11; Y. B., 21 Ed. 3, 47.

Again, the king recovers in quare impedit by default against one that was never summoned. Here, as in the former case, the injured party may either bring his petition generally, or he may ask for and obtain the issuing of a "writ of deceit" from the Chancery, upon the issue of which the formalities attendant upon a petition of right proper will be avoided, and the justices to whom the writ is directed may proceed to examine the "deceit" without more (b).

Now, although it cannot be denied that in a certain sense the foregoing cases are applications to the Chancery, yet it was not with a view of enforcing any equitable claim against the Crown, but only to ask its assistance to enable the suppliant to obtain more quickly that to which he had a good common law right by petition, and the Chancery in this connection does not mean the Court of Equity but the office out of which issued all original writs passing under the Great Seal; and it may be asserted that none of the above authorities afford any ground for supposing that equitable claims as such are enforceable against the Crown.

Why such petitions

be sued.

And, indeed, upon consideration, this is no more than should not might have been expected, since where the Crown is concerned the Court would in most cases be powerless to enforce its decrees, and would therefore decline to make them. Equity principally, if not exclusively, acts in personam (c) ; its judgments, that is to say, are in the nature of commands or orders to the people against whom they are given to do or abstain from doing certain acts; and the means which it employs to enforce its judgments are by attachment of the person when the person is within the jurisdiction, and also by sequestration, so far as there are lands or goods of the

(b) Bro. Abr., tit. Pet. 34; Y. B. M. 10 H. 4, fol. 4. Staunford's Prerog., cap. xxii., fol. 73 a.

(c) Penn v. Ld. Baltimore, 1 Ves. 444; 2 W. & T. L. C. 837.

offender within the jurisdiction of the Court. But where the Crown is concerned it would be indecent in the first place to issue any command to it, and in the second place it would be nugatory, since it could not be enforced either by attachment or sequestration; and this seems to have been the view at first entertained by the Court of Chancery (d).

The question then arises, How has this practice of proceeding in Equity against the Crown arisen? It appears to have originated in a practice, not sixty years old, of obtaining the consent of the Crown upon a petition of right to be sued as a subject through one of its superior officers, usually the Attorney-General.

Bovill's

Atty.-Genl.

The first case in which this course seems to have been Petitions in Chancery adopted was in the year 1834. In that year Sir William before Clayton (e), who was lessee of certain lands held of the Act. Duchy of Cornwall, which leases were, as he alleged, granted Clayton v. to him upon certain customary fines, having been refused a renewal of such leases upon such fines, sued a petition of right against the Crown, in whom the Duchy was vested. The prayer of the petition was special, and in the following words:"That His Majesty would be graciously pleased to order that right be done in this matter, and to endorse his Royal declaration thereon to that effect, and to refer such petition, with such Royal order and declaration thereon, to the Lord Chancellor. And that the plaintiff might thenceforth prosecute his complaint therein against His Majesty's Attorney-General, as representing his rights and interests as Duke of Cornwall in the matters aforesaid, and that for such purpose the plaintiff might have leave to

(d) Thus in the foregoing case of Penn v. Ld. Baltimore it is stated that the reason why, in Reeve v. The Atty.-Genl. (2 Atk. 223) the Chancellor dismissed the bill was, that it claimed a declaration against the Crown which the Court had no jurisdiction to decree, suggesting that the suppliant's remedy was by petition of right.

(e) 1 C. P. Cooper's Repts. in Chancery, temp. Cottenham, p. 97 (1834).

Taylor v.
Atty.-Genl.

make such Attorney-General, and also the aforesaid Lords Commissioners of the Treasury, parties thereto; and to pray and obtain such relief in such matters aforesaid as under the circumstances stated should be just."

What happened thereupon is not very clear. It appears, however, from a note made by Lord Brougham, that “it was agreed that, instead of this proceeding continuing in its course, a bill should be filed, to which no objection should be taken on the ground of prerogative, and that an answer should be put in."

This course was probably adopted because the proceeding by petition of right was, as Lord Brougham in his judgment calls it, "unusual." A bill was next put in, in which the suppliant prayed, inter alia:

(1) That it might be declared that the plaintiff was entitled to have a new lease granted to him on payment of the customary or of a reasonable fine.

(2) That a reference might be made to the Masters in Chancery to determine such customary or reasonable fine.

(3) That the defendants might be decreed to grant such leases upon payment of such fine.

(4) An injunction against the defendants restraining them from granting leases of the premises which should in any way prevent the renewal of the plaintiff's lease as prayed for.

An answer was put in by the Attorney-General, and ultimately the bill was dismissed.

Three years later a similar course was adopted with regard to another petition against the Crown (ƒ). In this case the facts were as follows. By certain letters patent King

(f) Taylor v. Atty.-Genl., 8 Sim. 413.