« ForrigeFortsett »
23 & 24 VICT., CAP. 34.
An Act to amend the Law relating to Petitions of Right, to simplify the Proceedings, and to make Provisions for the Costs thereof.
[3rd July, 1860.]
WHEREAS it is expedient to amend the law relating to petitions of right, to simplify the procedure therein, to make provision for the recovery of costs in such cases, and to assimilate the proceedings, as nearly as may be, to the course of practice and procedure now in force in actions and suits between subject and subject: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
To amend the Law, &c.] It would seem that the only amendment in the law relating to petitions of right which this Act has introduced is to afford the suppliant an alternative to the old common law method of proceeding, which still exists (see sect. 18). The liabilities of the Crown are neither enlarged nor diminished hereby (see proviso at the end of sect. 7), and, consequently, the suppliant's position, save for the above-mentioned alterations, is the same. sum and substance of the alteration in procedure introduced is to apply the existing practice in actions to petitions of right.
I. A petition of right may, if the suppliant think fit, Petitions of Right may be intituled in any one of the Superior Courts of Com- be intituled mon Law or Equity at Westminster in which the subject- the Supein any of matter of such petition or any material part thereof would rior Courts have been cognizable if the same had been a matter in minster.
tion as in Schedule No. 1.
The form, dispute between subject and subject, and if intituled in contents of a Court of Common Law shall state in the margin the venue for the trial of such petition; and such petition shall be addressed to her Majesty in the form or to the effect in the Schedule to this Act annexed (No. 1), and shall state the christian and surname and usual place of abode of the suppliant and of his attorney, if any, by whom the same shall be presented, and shall set forth with convenient certainty the facts entitling the suppliant to relief, and shall be signed by such suppliant, his counsel or attorney.
A Petition of Right may be intituled, &c.] Since the Judicature Act of 1873 petitions have been intituled either in the Queen's Bench or Chancery Division of the High Court of Justice. A petition may also be intituled in the Probate, Divorce, and Admiralty Division. "A petition of right under the Petitions of Right Act, 1860, may, if the suppliant thinks fit, be intituled in the High Court of Admiralty in case the subjectmatter of the petition or any material part thereof arises out of the exercise of any belligerent right on behalf of the Crown, or would be cognizable in a prize court within her Majesty's dominions if the same were a matter in dispute between private persons" (27 & 28 Vict. c. 25, s. 52). The jurisdiction of the High Court of Admiralty, mentioned in this section, was transferred (36 & 37 Vict. c. 66, ss. 16 & 34), to the Probate, Divorce, and Admiralty Division of the High Court. It may be noticed also that when a certain Admiralty jurisdiction was transferred to the County Courts by 31 & 32 Vict. c. 71, it was expressly provided (sect. 4), that "nothing in that Act or in any order in Council under it should confer on a County Court jurisdiction in any prize cause or in any other matter within The Naval Prize Act, 1864'" (i.e., 27 & 28 Vict. c. 25). A petition intituled in one Court can be changed to another under sect. 4, infra.
Venue.] Before the Act no venue was named in the petition which was addressed to the king personally, and, if answered, sent into the Chancery. There a commission
issued of course to certain persons to find the suppliant's title, i.e., the truth of the allegations in the suppliant's petition, and the finding thereon was returned into the Chancery; the finding having been returned, the Attorney-General, "being present in the Court of Chancery," was asked if he had anything to say to the petition on behalf of the Crown; whereupon he pleaded, and issue having been joined, a transcript of the record was sent into the King's Bench to be tried; "and where the parties descend to an issue then for the tryall thereof they of the Chauncery must award a venire facias retournable in the King's Bench at a certain day." Staunford's Prerog. cap. xxiii., fol. 77 b., the AttorneyGeneral having a right to a trial at bar (see note to sect. 4, infra). This being so, it may be doubted whether, as the Act does not purport to increase the rights of the subject against the Crown, the subject now has the right as against the Crown to choose his own venue, or, if he does, whether the Crown could not get it changed so as to correspond with the old practice, which we have stated above. The Act is only imperative upon the suppliant to name a venue when his petition is intituled in a Common Law Court; this is so, no doubt, because at the time the Act was passed there was no venue but London for Chancery suits. Since then, however, the privilege of choosing a venue has been extended by the Rules of Supreme Court, 1883, to plaintiffs in every division of the High Court (Order 36, rule 1). As the rules which govern the procedure in actions between subjects are, so far as applicable, to extend to a petition of right (see sect. 7, infra), it may be that a suppliant upon a petition intituled in the Chancery Division may now choose his venue, but there has as yet been no decision thereon.
See proviso to sect. 4.
Change of Venue.] Such Petition, &c.] The title and venue have been already dealt with, the formal opening and conclusion are given in Schedule No. 1 to this Act. Appendix A. also contains some precedents of petitions of right which may perhaps be found useful. In printing, paper, division into numbered paragraphs, &c., and such formal details, the petition is in every respect similar to a statement of claim in an action. In drawing