(2) Since! the Act of

1860.

Third parties

under the

Act of 1860.

this practice was recognized, it was never regarded as any authority for joining a subject with the Crown upon the petition of right itself. Thus Vice-Chancellor Wickens, in a recent case, although he quoted the above practice with approval, said. "Before the Petition of Right Act (23 & 24 Vict. c. 34) the petition was addressed to the Queen alone : . . . . on a petition of right proper before the Act a subject could not have been joined with the Crown . . . . It seems to me there is nothing which in the least authorizes the joining of a subject with the Queen as respondent to the petition itself." (g)

Subject to what is stated in the next paragraph, there appears to be nothing in the Petitions of Right Act (23 & 24 Vict. c. 34), 1860, which authorizes the joinder of a subject with the Crown. It appears to have been done, however, in at least two cases since the Act. The first of these is Kirk v. Reg. (h). There the suppliant, in proceeding against the Crown for a breach of contract, joined an officer of engineers, by whom he alleged the breach had been caused, and claimed against him an injunction and the costs of the suit. As the case was decided upon other grounds, it became unnecessary to consider whether this was such a misjoinder of parties as would have been fatal to the suppliant's success; but the Vice-Chancellor intimated that, if the officer had not put in an answer, but taken the objection in a proper manner, it would probably have been upheld. The second case was that of Kinloch v. Reg. (i), in which no objection seems to have been taken on behalf of the respondents, but which, like the previous case, failed upon the merits.

It should be noticed, however, that the Act provides for bringing in a third party as a defendant to the petition in

(g) Kirk v. Reg. L. R. 14 Eq. 558, at p. 563.

(h) L. R. 14 Eq. 558.

(i) Weekly Notes, 1882, p. 164; Ibid. 1884, p. 80.

.

a certain event, which is, shortly, where the petition is for the restitution of property which has been granted away or disposed of by the Crown to a third party, such third party may be brought in to defend. These cases and the procedure thereunder will be discussed in the notes to the sections of the Act dealing with the question. (k)

petition

A further question, however, may arise after the suit has Does the been begun, which is, whether it abates upon the Sovereign's abate by death, or continues against his or her successors or execu

tors.

Unfortunately there appears to be no authority upon this point other than the case of Viscount Canterbury v. Reg. (1), in which it was sought to make the present Queen liable upon a petition of right for a wrong done by a servant in the employ of William IV.; and though Lord Lyndhurst, in his judgment therein, deals with the question, he does not do so on principles which make it available in other cases (m).

(k) 23 & 24 Vict. c. 34, s. 5.

(7) 12 L. J. Ch. 381; 1 Phillips, 306; 7 Jur. 224.

(m) Lord Lyndhurst's line of argument is that the petition being in the nature of an action of tort is obnoxious to the rule "actio personalis moritur cum persona." It was in the same case decided, and has since been established, that no petition of right lies for a tort. His words are as follows: "Another objection has been urged against the claim of the petitioner. If the case were one between subject and subject, this objection would be fatal, and it is admitted on the part of the petitioner that he can only expect success if he had a right to redress in an action against a private individual. Now the cause of action arose in the time of the late king, and it is clear that had this been a case between subject and subject an action could not be supported on the principle that 'actio personalis moritur cum persona.' It is contended that a different rule prevails where the Sovereign is a party; but some authority should be adduced for such a distinction. It is true, indeed, that the king never dies: the demise is immediately followed by the succession; there is no interval, the Sovereign always exists; the person is only changed. But if there be a change of person, why is the personal responsibility arising from the negligence of servants, if indeed such responsibility exists, to be charged on the successor, ceasing as it does altogether in the case of a

the death of the

Sovereign.

Common

Law doctrine

of abate

ment

1 Ed. 6, c. 7.

Neither is this matter dealt with in the Petitions of Right Act, 1860, except under the general direction (n) that the practice upon petitions shall be as far as possible assimilated to suits between subjects; but as this direction is qualified by a proviso whereby all existing prerogatives of the Crown in such matters are preserved, it becomes necessary to see if any such prerogative exists upon this point.

At the Common Law all legal process appears to have discontinued by the death of the king (o). To remedy this inconvenience two statutes were passed, one in the reign of modified by Edward VI. (p), the other in the reign of Anne (q). By the former, actions, &c., between subjects, by the latter, actions, &c., by the Crown against subjects, were kept alive, not1 Anne 1, withstanding the demise of the Crown. Petitions of Right do not seem to be within either of these statutes (r), and therefore there seems to be no statutory authority to prevent process in such suits from discontinuing if they are obnoxious to the ordinary Common Law rule.

c. 8.

private individual? In the case of a subject the liability does not continue in respect of the estate; it devolves on neither the heirs nor the personal representative: it is extinct. I should find it difficult, therefore, in the case of the Crown, to say with any confidence, that the liability continued, and was transferred to the successor, unless some distinct authority was shewn in support of such a doctrine. Several cases were referred to for this purpose in the argument at the bar, but they were cases of grant, covenant, debt, or relating to the right of property in which, from the analogy to the case of a subject, the Crown might be liable in respect of succession, and do not, I think, sufficiently establish the principle for which they were cited."

(n) 23 & 24 Vict. c. 34, s. 7.

(0) Com. Dig. tit. Abatement, H. 38, i.; 7 Rep. 29 b-30 a.

(p) 1 Ed. 6, c. 7.

(g) 1 Anne, st. 1, c. 8.

(r) As to the former, see "The Case of Discontinuance of Process, &c., by the Death of the Queen," 7 Rep. 30 b; as to the latter, see the words of the statute.

To decide whether they are or are not is extremely difficult. In the first place the law seems to have recognized a sort of duality in the person of the Sovereign, a "generic existence as King of England and an "individual” existence as Henry or Edward, King of England. In the former capacity he was supposed not to die, in the latter he was (8). The law further seems to have considered that he was party to a suit in his individual capacity, and that consequently, upon his death, process therein was as far as possible discontinued or abated. Thus an original writ sued out by him abated, and so all proceedings upon an information or an indictment (†). But the operation of this rule seems to have been rather counteracted by the operation of another, viz., "that records cannot abate" (u), and therefore so much of the proceedings as were of record continued, and the other party could be reattached to plead thereto "de novo." Thus, though the proceedings on the information were discontinued, the information being recorded in the Exchequer remained (x), and similarly of indictments.

It is not easy to apply these rules to a petition of right under the Act of 1860. Formerly the proceedings therein appear to have been of record when the finding of the commission had been returned into the Chancery, the Crown had pleaded thereto, and the record made up and sent into the King's Bench to be tried (y). Whether the filing of the petition of right at the central office under the

(s) "For although it is true that the king 'in genere' doth not die, for there is no interregnum, yet, 'in hoc individuo' Henry the King and Edward the King, &c., he dies," 7 Rep. 31 a.

(t) 7 Rep. 31 a.

(u) Ibid.

(x) Upon this point see Lionell Farringdon's Case, Cro. Car. 10, and the "Memorandum " of the judges, Cro. Jac. 14.

(y) This appears to have been so in the case of "monstrans de droit," according to a case quoted (Pasch. I. Ed. 5), by Coke, 7 Rep. 31 a, which unfortunately I have been unable to find.

D

present practice (z) makes it a record of the Court, has not been decided.

A convenient course for the Court to pursue under the present Act would be, it is suggested, to let all such petitions as are brought against the Sovereign in his or her individual capacity abate, but those to which he or she is the mere nominal defendant for the public continue.

(z) Central Office Practice Rules, 1880-1882, A.