Time for answering by other

mentioned in the note to sect. 1 of the Act, it seems doubtful
if the Crown has, in virtue of its prerogative, any right of
choosing its own venue except in personal actions in which
it is plaintiff (see Attorney-General v. Churchill, 8 M. & W.
171). It, however, has been enacted by 28 & 29 Vict. c. 104,
s. 46 (the Crown Suits Act, 1865), as follows: "Where a
cause in which her Majesty's Attorney-General on behalf of
the Crown is entitled to demand as of right, a trial at bar is
at any time depending in any of her Majesty's superior
Courts of Law at Westminster, whether instituted before or
after the commencement of this Act, and the Attorney-Gene-
ral states to the Court that he waives his right to a trial at
bar, the following provisions shall have effect (1) The
Court on the application of the Attorney-General shall
change the venue to any county in which the Attorney-
General elects to have the cause tried." There appears to be
no exact decision whether petition of right is a
66 cause in
which her Majesty's Attorney-General is entitled to demand.
a trial at bar" within the meaning of the Act, so as to make
this provision applicable thereto; but the Court of Appeal, in
a recent judgment, seem to have expressed a very strong
opinion that it was (Dixon v. Farrer, L. R. 17 Q. B. D. 658;
55 L. J. Q. B. D. 497; 55 L. T. 438; on Appeal, L. R. 18
Q. B. D. 43; 56 L. J. Q. B. D. 53; 55 L. T. 578), and cases
were then cited which seem to place the matter beyond doubt.
And there seems to be other authority to the same purpose;
for instance: "When the Crown is immediately concerned,
the Attorney-General has a right to demand a trial at bar"
(Tidd's Practice, 9th ed., p. 748, quoting 1 Str. 52, 644;
2 Str. 816; 1 Barnard, K. B., 88 S. C.); "In the Exchequer
no nisi prius shall be granted where the king is a party where
the Attorney-General does not consent." (Com. Dig., Prerog.,
D. 85.) For the method in which this application is made
see Dixon v. Farrer (supra). The section does not seem to
authorize an application for a change of court or venue by a
third party brought in under sect. 5.

V. In case any such petition of right shall be presented for the recovery of any real or personal property,


or any right in or to the same, which shall have been persons, parties to granted away or disposed of by or on behalf of her the petiMajesty or her predecessors, a copy of such petition, allowance, and fiat shall be served upon or left at the last or usual or last-known place of abode of the person in the possession, occupation, or enjoyment of such property or right, endorsed with a notice in the form set forth in the Schedule (No. 3), requiring such person to appear thereto within eight days, and to plead or answer thereto in the Court in which the same shall be prosecuted within fourteen days after the same shall have been so served or left as aforesaid; and it shall not be necessary to issue any scire facias or other process to such person for the purpose of requiring him to appear and plead or answer to such petition, but he shall within the time so limited, if it be intended by him to contest such petition, enter an appearance to the same in the form set forth in Schedule (No. 4) to this Act annexed, or to the like effect, and shall plead, answer, or demur to the said petition within the time specified in such notice, or such further time as shall be allowed by the Court or a Judge.

Previous to the passing of this Act, where the property sued for had been granted over to a third party, the course was as follows:

In the first place, it was necessary to get back the property into the hands of the Crown. For this purpose, as soon as the petition was presented a writ of scire facias issued from the Chancery, by which the sheriff was commanded to "give notice to the said grantee that he be before us in our Chancery on (such a day), to show if he hath or knoweth of anything to say for himself why the said letters patent granted to him ought not to be cancelled " (Tidd's Practice, Appendix, p. 447, ed. 1840); the grantee so summoned was entitled to a writ of search "to be awarded into the Treasury


to search what he can find for the king's title," and this " the party shall enterplead with the king" (Staunford, Prerog., cap. xxii., fol. 73 b, 74 a); having found thereby what he could to support his title, he then pleaded or demurred, and judgment was given thereon (Chitty's Prerog., p. 330), affirming or repealing the letters patent. As the question whether or not the "letters patent" were good depended upon what title the Crown had to the property granted, the judgment on the scire facias practically decided the petition; but, no doubt, where the letters patent were repealed and the property thereby reverted to the Crown, a judgment of amoveas manus was given upon the petition in order to transfer the property from the Crown to the suppliant.

That this was the usual course appears from Staunford, who says: "And note that in every peticion where the king hath granted the land over to another a scire facias must be awarded against the patentee" (Prerog., cap. xxii., fol. 73 b.) ; and Coke makes the same statement with some little variation (Saddler's Case, 4 Rep. 59 b); and that the scire facias was for the purpose of repealing the letters patent appears clear (see Broke's, Abridgment, tit. Pet., 11, 8).

So much for the practice before the Act, which has introduced the following change.

In the first place, all the proceedings upon scire facias have been abolished. This seems to have been done under a mistake; the framers of the Acts appear, from their language in this section, to think that the object of a scire facias was not what we have stated, but only to bring in the grantee as co-defendant. That such was their idea appears also from the fact that while they have given new means of making the grantee a third party, they have given none for repealing the letters patent; consequently, even if the suppliant suceeeds he will be met with what, on the face of it, is a valid conveyance to the third party.

The proceedings substituted for scire facias are sufficiently explained in the words of the section.

It should be noticed, however, that the Act does not provide for the person to whom the property has been granted away or disposed of being brought in to defend, but

only the person in the "possession, occupation, or enjoyment of the property;" and as there is apparently no obligation on such person to inform the owner of what is going forward, or any provision made for his coming in even if he wishes to do so, his interests may be very prejudicially affected through the operation of this section.

On marking a copy of a petition of right for service a fee of 58. is payable by a stamp impressed on the copy. (Order as to Supreme Court Fees, 1884, Schedule No. 16. Order as to fees, &c., for July, 1884, at p. 4.)

It would seem that a third party brought in under this rule is entitled to defend in forma pauperis, at all events in the Chancery Division: "Any person who might, if a defendant to an ordinary suit in this Court, have been admitted to defend in forma pauperis, may be admitted to make his defence in forma pauperis to any petition of right instituted in this Court which he may be required to plead or answer to (Order of 1st Feb. 1882, rule 5. Morgan 201, 202, and note to sect. 15, infra). For method of defending in forma pauperis, Supreme Court Rules 1883, Order XVI., rules 22–31.

As to serving the third party with a copy of interrogatories for his examination simultaneously with the copy of the petition where it is intituled in the Chancery Division, see Chancery Order, Feb. 1, 1862, rule 4, Morgan 201, 202 (and note to sect. 15, infra).

With regard to the entry of appearance, it should be made at the same place as in an ordinary action, viz., the Central Office: the summons for extension of time would seem, from the definition of "Court" and "Judge" in sect. 16, to be a Judge's summons.

Before appearing it would be well for the third party to consider whether he can put forward any further or better defence than his grantor the Crown, and if not, to let the petition be taken pro confesso against him under sect. 8. In the notes to sect. 7, this point is further considered.

swer or

VI. Such petition may be answered by way of answer, The anplea, or demurrer in a Court of Equity, or in a Court of Common Law by way of plea or demurrer, or by both such peti

plea to


pleas and demurrer, by or in the name of her Majesty's Attorney-General on behalf of her Majesty, and by or on behalf of any other person who may in pursuance hereof be called upon to plead or answer thereto, in the same manner as if such petition in a Court of Equity were a bill filed therein; or if the petition be prosecuted in a Court of Common Law as if the same were a declaration in a personal action, and without the necessity for any inquisition finding the truth of such petition or the right of the suppliant; and such and the same matter as would be sufficient ground of answer or defence in point of law or fact to such petition on the behalf of her Majesty may be alleged on behalf of any such other person as aforesaid called on to plead or answer thereto.

Object of this section.] "Sect. 6 of 23 & 24 Vict. c. 34, does not relate in the least to the form of pleading by the Crown, but takes away that which was needed to support petitions of right in old times, namely, an inquisition finding certain facts" (per Erle, C.J., Tobin v. Reg., 14 C. B. N. S. 505, at p. 521; 32 L. J. C. P. 216, at p. 222; 9 Jur. N. S. 1130, at p. 1131; 8 L. T. 730, at p. 731; 11 W. R. 915, at p. 915). "Sect. 6 is an enabling clause, but it is only such in terms, because in fact the Crown would have had such power without any enactment" (per Willes, J., ibid., at pp. 524, 223, 1134, 732).

Pleading by the Crown.] The prerogatives which the Crown possesses in the matter of pleading, as also the present practice on demurrer, are pointed out in the notes to the next section.

By or in the name of her Majesty's Attorney-General, &c.] The form in which a plea or demurrer on behalf of the Crown runs is as follows: "Her Majesty's Attorney-General, who for our Lady the Queen defends, says, for and on behalf of our Lady the Queen, that the said several matters and things in the said petition contained, specified, and set out are not, nor is any one of them, nor any part thereof, true in fact;"

« ForrigeFortsett »