or "that the said petition is not good and sufficient in law inasmuch as (stating grounds of objection)."

Pleadings, answers, or demurrers by third party.] By the previous section these must be delivered within fourteen days from the time of being served with the petition; the grounds of defence of which a third party can avail himself will now be considered.

As the issue upon every petition is simply whether or not the suppliant is entitled to the property, the defences which are open to the third party under the proviso in this section enabling him to plead any defence which the Crown might set up, are, in addition to objections in law a traverse of one or more of the facts upon which the suppliant grounds his claim, or a confession and avoidance of it by alleging some matter sufficient to give title to the Crown, notwithstanding the suppliant's suggestions.

It should be borne in mind, however, that the Crown does not retire from the proceedings because a third party is added, and, it is fair to suppose, knows its own title at least as well as the third party, especially as the latter does not now appear to be entitled to a writ of search. This being so, all the defences which the third party could raise will probably be raised by the Crown, which defences he will apparently have to repeat in order to avoid having the petition taken pro confesso against him under sect. 8.

Whether the " possessor can avail himself of the Statute of Limitations has not been decided, but certainly the Crown cannot, as the Act only applies to actions between subjects (see per Blackburn, J., in Rustomjee v. Reg., L. R. 1 Q. B. D. 487, at 491; 45 L. J. Q. B. 249; 34 L. T. 278; 24 W. R. 428), and therefore presumably the "possessor" cannot. Whether the plea of "possession " merely will have the same meaning as in actions for the recovery of land between subjects (upon which, see Danford v. McAnulty, L. R. 8 App. Cas. 456) is uncertain.

VII. So far as the same may be applicable, and except The prac in so far as may be inconsistent with this Act, the laws and statutes in force as to pleading, evidence, hearing,

tice and course of procedure in action

and suit and trial, security for costs, amendment, arbitration, subject and special cases, the means of procuring and taking evi

between

subject

shall extend to

petitions of right, so

far as ap

plicable.

dence, set-off, appeal, and proceedings in error in suits in equity, and personal actions between subject and subject, and the practice and course of procedure of the said Courts of law and equity respectively for the time being in reference to such suits and personal actions, shall, unless the Court in which the petition is prosecuted shall otherwise order, be applicable and apply and extend to such petition of right: Provided always, that nothing in this statute shall be construed to give to the subject any remedy against the Crown in any case in which he would not have been entitled to such remedy before the passing of this Act.

for

This section should be considered with sect. 15, infra. These sections taken together seem to shew that the practice in actions between subjects existing at the date of the passing of this Act was applied to petitions of right as a temporary expedient, until rules of procedure had been drawn under sect. 15; and that when such rules were drawn they were to supersede the practice under this section. Sect. 15, however, was repealed after an order had been drawn up the regulation of proceedings upon petition in Chancery, but before any similar rules had been made thereunder in the Common Law Courts (see note to sect. 15), and as a substitute for the power thus taken away, it was enacted that the Supreme Court's power of drawing rules of procedure in actions should extend to petitions of right. At present the Supreme Court has not exercised this power, and so the procedure continues to be governed by this section.

So far as the same may be applicable.] The meaning of these words seems to be as follows. The Crown has always had a certain prerogative in matters of pleading and procedure, which has not been taken away by this statute. "It is said that sect. 7 of the 23 & 24 Vict. c. 34 has taken away the Queen's prerogative, and subjected the Crown to all the

rules of pleading. I think that the words of the statute by no means justify that statement. The prerogative is recognized and remains" (per Erle, C.J., Tobin v. The Queen, 14 C. B. N.S. 505, at p. 520; 32 L. J. C. P. 216, at 221; 8 L. T. 730, at 731; 9 Jur. N.S. 1130, at p. 1133; 11 W. R. 915, at p. 915). "The Petitions of Right Act, 1860, has not interfered with the prerogative of the Crown in matters of pleading and procedure" (per Bowen, L.J. arguendo, Tomline v. The Queen, L. R. 4 Ex. Div. 252, at 254; 48 L. J. Ex. 453, at p. 454; 40 L. T. 542, at p. 543; 27 W. R. 651, at p. 651). The above words "so far as applicable" recognise this fact, and in effect mean "where not inconsistent with the prerogative which the Crown has in such matters."

In the following note an attempt has been made to collect some of the various cases which shew what part of the practice between subjects is and what is not "applicable;" but before passing on this preliminary statement should be made that, speaking generally, the various statutes regulating the practice in actions and suits between subjects are wholly inapplicable to petitions of right, since the latter are not usually named therein.

Pleading.] The Crown appears to have distinct prerogatives in pleading which, however, are not perhaps so important as formerly, since in some cases a similar license has been extended to the subject. Thus the Crown may always "plead and demur, reply and demur, or in any other way plead double" (per Williams, J., in Tobin v. The Queen, 14 C. B. N. S. 505, at p. 512; 32 L. J. C. P. 216; 8 L. T. 730, at p. 7; 9 Jur. N. S. 1130, at p. 1132; 11 W. R. 915); and the Court refused to strike out under the Common Law Procedure Act of 1852, as "embarrassing" a "general denial" pleaded by the Crown in the following words: "that the several averments and statements contained in the said petition of right are not, nor is any of them, true in fact (ibid.);" and generally the statutes relating to pleading have no application to the Crown (per Willes, J., ibid.), for other privileges which the king shall have in suits." See Com. Dig., tit. Prerog. D. 85.

66

N

Limitation, Statutes of.] Although "the Statute of Limita

tions has relation only to actions between subject and subject, and the Crown cannot be bound by it" (per Blackburn, J., in Rustomjee v. Reg., L. R. 1 Q. B. D. 487, at 491), it has been enacted by the Intestates' Estates Act, 1884, "That after the passing of this Act an information or other proceeding on the part of Her Majesty shall not be filed or instituted and a petition of right shall not be presented in respect of the personal estate of any deceased person or any part or share thereof or any claim thereon except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject (47 & 48 Vict. c. 71, s. 3).

Venue.] As to right of choosing, see notes to sect. 4, supra. Demurrer.] A question may possibly arise as to what

course the Crown should adopt with regard to objections in law whether they should still be raised by demurrer, or on the pleadings under Order 25, rule 1, Supreme Court Rules, 1883. Both courses seem to have been employed. Thus in De Dohsé v. The Queen (Times, 20th March, 1885, and 3rd June, 1885); Kinloch v. The Queen (W. N. 1884, p. 80); Northam Bridge Company v. The Queen (Times, 24th November, 1886); objections in law seem to have been raised by demurrer, but in Eyre and Others v. The Queen (Times, 8th June, 1886), upon the pleadings under the above rule.

be

Interrogatories.] It would seem that the suppliant has the right of interrogating a third party brought in under sect. 5, supra, at all events where the petition is intituled in the Chancery Division. “A suppliant in any petition under the said Act desiring to file interrogatories for the examination of any person or persons who may required to plead or answer thereto (other than her Majesty's Attorney-General) shall file such interrogatories at the same time as such petition. And a copy examined and marked by the Clerk of Records and Writs of the interrogatories which any respondent is

required to answer, shall be served upon such respondent together with a copy of the petition. (Chancery Order, 1st February, 1862, rule 4, Morgan 201, 202, see notes to sect. 15.)" The third party, therefore, would probably be held to have the reciprocal right of interrogating the suppliant. Neither the third party nor the suppliant would seem to have any right to interrogate the Crown or the Attorney-General for the same reasons as those upon which discovery has been refused (see following note on Discovery of Documents, infra); there seems no reason why the practice relating to interrogatories should be held to be "inapplicable,” when administered by the Crown to a suppliant (ibid).

Discovery of Documents. By the Suppliant against the Crown.] The suppliant cannot obtain an order for discovery of documents against the Crown. This was established in Thomas v. The Queen (L. R. 10 Q. B. 44; 44 L. J. Q. B. 17; 32 L. T. 59; 23 W. R. 345), which was a case of an application under sect. 50 of the Common Law Procedure Act of 1854; the reasons which were urged by the Crown in resisting the application were as follows:"That the Queen was not specially named in the statute; that she is not such a corporation as can answer by officers; and that she herself cannot be compelled to answer on oath; and that the document which a suppliant seeks to discover may be such as, by reason of public policy, ought not to be set out in the schedule to an affidavit of documents" (see Bowen's argument in Tomline v. The Queen, L. R. 4 Ex. D. 252; 48 L. J. Ex. 453; 40 L. T. 542; 27 W. R. 651). The Court refused the application on the ground that "if it had been intended to extend sect. 50 to the case of petitions of right, there would have been inserted some enactment saying an officer should answer, as in the case of bodies corporate" (a).

(a) Possibly a third party may be entitled to some discovery against the Crown in lieu of and for the same purposes as the writ of search which formerly used to issue on his behalf (see notes to section 5, supra).