Is the right of suit

contract made with the Crown, they must sue jointly or severally.

With regard to joint tenants of realty, the rule seems to be that each of them may sue his petition for his share, and that a plea of joint tenancy is not a good answer. Thus as early as the reign of Henry IV.: "Fuit dit per Justiciarios in Camera Scaccarii que si III jointenauntes font de certeine terra q est seisie in manu regis, chescũ de eux aperluy poyt suer extra manus regis son parte demesne sans son compaignion et q nest plee pur cesty vers q est sue dallege joyntenancy " (i). And no doubt joint tenants can join in suing for the whole (k).

There is no authority which shews what the position of joint contractors is upon a petition of right, but there seems no reason why the rule subsisting between subject and subject, by which all the persons with whom the contract is made should join as plaintiffs (7), should not hold good where the Crown is one of the contracting parties.

Whether the right, if such it may be called, of suing a assignable? petition of right is transferable or assignable, so as to enable some one, other than the person originally entitled to sue, to be a suppliant is more difficult to say. At the outset we should distinguish all cases in which we find persons suing by petition to regain property to which they are entitled, but the possession of which the Crown has usurped in the time of their predecessors in title, since such people do not sue as assignees of their predecessors' right of suit, but in virtue of the right which accrues to themselves by the retention of their property. Thus we find in recent cases devisees of a freehold estate which had

(i) 2 Hen. 4, 23; Broke's Abridgment, tit. Pet. 6.

(k) James v. The Queen, L. R. 17 Eq. 502; 43 L. J. Ch. 754, on appeal; L. R.5 Ch. D. 153; 46 L. J. Ch. 516. Here the suppliants seem to be joint tenants as devisees in trust.

(1) Dicey's Parties to an Action, p. 11.

been seized by the Crown during the life of the testator suing by petition of right for restitution of it (m); and a legal personal representative for sums of money of which his ancestor had, as he alleged, been deprived by the Crown (n). The only case upon the question of assignment appears to be that of Re Rolt (0), in which the assignees of a bankrupt contractor with the Crown seem to have presented a petition of right without objection being made.

Upon the course to be adopted upon the death of one of two joint suppliants, see Tobin v. Reg. (p).

(m) James v. The Queen, supra, p. 40.

(n) Frith v. The Queen, L. R. 7 Ex. 365; 41 L. J. Ex. 171; 26 L. T. 774; 21 W. R. 19.

(0) Re Rolt, 4 D. & J. 44.

(p) 33 L. J. (N.S.) C. P. 199, at p. 200.

Claims arising out

CHAPTER VI.

WHERE THE PETITION SHOULD BE SUED.

ASSUMING the suppliant to be in possession of a claim of English against the Crown of such a nature as to entitle him to present a petition of right, some difficulty may arise in determining where such petition should be presented and sued.

jurisdiction.

If a proper

tribunal in

where the property, &c., is.

The difficulty will arise when the claimant's suit affects lands, things, or contracts, situate or made outside the jurisdiction of the English Courts.

Of course if the claimant resides in some colony, place, the place or dependency, and his claim arises out of dealings between himself and the Crown therein, then if the tribunals of such colony, place, or dependency, are enabled by statute or otherwise to entertain such suits, no serious difficulty will probably arise, as the suppliant, seeing that his remedy is assured to him at home, would scarcely come to England to prosecute it; if, however, he does come, he will not receive assistance from the English Courts, whether his claim is for specific property, real or personal, or on a contract between himself and the Crown.

Reiner v. This is well illustrated by the decision in a recent case (a). Marquis of Salisbury. There the plaintiff, a farmer in Bavaria, filed a bill in England against the Secretary of State for India, to compel him to allow discovery and inspection of certain documents of title in the archives of his office, relating to an estate of (a) Reiner v. Marquis of Salisbury, L. R. 2 Ch. D. 378.

the plaintiff's in India, for the recovery of which he was about to commence a suit by petition of right against the Crown in England; and it thereby became necessary to consider whether such suit was maintainable in England, as if not he had no right to discovery. Vice-Chancellor Malins in giving judgment upon this portion of the case said: "Now what is the title of this plaintiff to sue? He has no right to sue in this country to recover land situate in India. His right is to sue in India, as I pointed out in the case of Doss v. Secretary of State for India. I there decided that if a person had a claim to property in India, the proper tribunal for the recovery of such property was in India, where there are Courts armed with every requisite power for granting relief. I then said that the subject matter in dispute being in India, the plaintiff resident in India, and the Secretary of State being in India as well as in this country, all circumstances concurred in shewing that if the case could be sustained at all, it was in the Indian Courts and not in the Courts of this country. That was a suit in which the plaintiff claimed a debt, and if I was right in that case in holding that the Indian Courts were the proper tribunals, how much stronger is this case where the claim is for land in India? It is not the practice to entertain suits in this country for the recovery of land in a foreign country; you cannot, in my opinion, maintain a suit in this country for the recovery of land in the colonies or a foreign country. At the same time that the Crown took possession of India the Government provided also for the establishment of tribunals to decide any questions of law or of equity which could arise. There the Courts are armed with legal and equitable jurisdiction with regard to discovery and every other doctrine inherent in the Courts of this country. The proper course would have been for the plaintiff to institute a suit in India, and he would have

The con

had the same right to discovery there that he would here. To suppose for one moment that the Crown can be sued in this country to recover land in India, is a doctrine which is quite unsustainable.”

The foregoing decision was given with regard to land, tract made, and it is apprehended that the same rule would hold good with regard to contracts (b). Lastly, where a suppliant

sought to recover by petition of right presented to the Crown or the debt in England a debt alleged to have become due to the person

due.

whom he represented from the Sovereign of Oude, before that province was annexed in 1856 to the territories of the East India Company, it was held that, assuming the East India Company became liable to pay the debt by reason of the annexation of the province, the Secretary of State in Council for India and not the Crown was, by the provisions of the "Act for the better Government of India, 1858," the person against whom the suppliant must seek his remedy.

Kelly, C.B., in giving judgment, said: "I am of opinion that the Crown is entitled to our judgment. Assuming that the allegations in the petition as to the original liability of the Sovereign of Oude are correct, and also that upon the annexation of that province in 1856 to the territories of the East India Company the liability passed to the Company, the objection taken by the AttorneyGeneral, viz., that the suppliant has misconceived his remedy, and that if he had one it was against the Secretary of State in Council for India, appears to me to be fatal. For whatever the liabilities of the Company were, they were all transferred by the Act of 1858, not to her Majesty but the Secretary of State for India, and against him the suppliant's remedy, if he have a remedy, must be. The terms of the Act are clear."

(b) For the different colonial statutes by which claims arising out of contracts with the colonial governments can be enforced, see Appendix B.