« ForrigeFortsett »
thinking that the only cases in which the petition of right is open to the subject are where the land, or goods, or money of a subject have found their way into the possession of the Crown, and that the purpose of the petition is to obtain The various restitution (g)." Following upon this general statement of property the law it is proposed to divide the further consideration of the subject into two branches, first giving an enumeration of the different species of property which may be recovered, and secondly some account of the kind of taking and debarring by the Crown which will justify the subject in proceeding by this means.
which can be recovered considered:
Property is usually divided and subdivided as follows: First, real property, consisting of corporeal and incorporeal hereditaments. Secondly, personal property, consisting of chattel interests in land, pure chattels, and moneys. And now having given these general authorities with regard to every species of property, we propose to consider each of these divisions in turn, and first of real property.
Realty (1) corporeal.
Corporeal Hereditaments. It has been long settled that this species of property can be recovered from the Crown (h), and even after the introduction of the statutory remedies by traverse and monstrans, of which we have spoken, it was still considered that petition of right was the true and only way of recovering freeholds (i). The reported cases, however,
(g) Feather v. The Queen, 6 B. & S. 257, at p. 298 (per Cockburn, C.J., Crompton, Blackburn, and Mellor, JJ.), 35 L. J. (Q.B.) 200, at p. 208; 12 L. T. 114, at p. 117.
(h) Nota fuit touche que travers de chose real ne fuit al comon ley, mes peticion ou monstrans de droit et contra de chattell; Y. B. 13 Ed. 4, 8; Bro. Abr., tit. Peticion, 30.
(i) Nota per Babbington Justice in l'exchequer chamber si office soit trouve que intytle le roy al fee simple ou frank tenement le partie greeve naver travers mes peticion, quod nemo negavit; Bro. Abr., tit. Peticion, 32; Y. B. 8 Hen. 5; Staunford's Prerog. cap. xx., fol. 61 a.
in which this particular species of freehold property has been recovered are not so numerous as might have been expected, for the reasons mentioned in the last chapter.
The reported cases are as follows:
A disseisor died seised, and in default of issue the land thereupon descended to the Crown; the Crown entered, and the person who had been disseised brought petition of right against the Crown for the recovery thereof. Held, that he
was entitled to succeed (k).
Again, I. S. was attainted for treason by Act of Parliament, and thereby condemned to forfeit to the Crown all the lands of which he was seised; an office found that he was seised at the time of forfeiture of certain lands, which indeed were not his, but A.'s. Held, that A. could recover from the Crown by petition (7).
The king being entitled in virtue of a collusive recovery, a stranger that hath good title may sue by petition for the recovery of his lands (m).
Side by side with these cases may be considered the rules which Staunford gives (n): “Also it is a general rule that where a stranger that hath title cannot enter upon a common person, but is driven to his action, there he can have no remedy against the king but only by petition, as take the case to be. It is found by office the king's tenant in chief died seised, his heir within age where in deed the said tenant had nothing, but by disseisin done to me, and I suffered him to die seised, without any claim made; in this case I am
(k) Y. B. 9 Ed. 4, 51; Bro. Abr., tit. Pet. 15. "Il fuit trouve per office que le duke de E. morust seysys del manour de E. C. que discende al roy et il entre et puis A sua al roy per petition, eo que il fut seisie del manor tanque per le dit Duke disseisie et proces continue tanque il avera restitution; " Y. B. 24 Ed. 3, 65; Bro. Abr., tit. Pet. 13.
(1) Y. B. 33 Hen. 8; Bro. Abr., tit. Pet. 35; Y. B. 3 Ed. 4, 24; Bro. Abr. tit. Pet. 27.
(m) Staunford's Prerog. cap. xxii., fol. 74 a. (n) Prerog. cap. xxii., fol. 74 a.
driven to my petition. And so in all cases like where mine entry would be tolled if the lands were in the hands of a common person. Also whereas the king doth enter upon me, having no title by matter of record or otherwise, and puts me out and detains the possession from me, then I cannot have it again by entry without suit; I have then no remedy but only by petition.'
The only two modern cases upon this point are: Palk v. The Queen (o) and Chevrier v. The Queen (p), the former being an English, the latter a Canadian case. Both were unfortunately decided against the suppliant upon demurrer by the Crown-the latter upon grounds inapplicable to an English petition of right, while the proceedings upon the former have never been reported.
Formerly the rule was that only lands in the same county could be sued for in one petition, as appears from the following note:
"Nota per touts les Justices d'ambideux Benches et lour opinion fuit q home ne poiet av petition de droit des terres in several counties mes solement des terres in un Count quia ceo est come un action real et ceo accidit in le petition de Arthur Baneth in l'Excheque Chamber dont vide Dier foll. 133 notab'e " (q).
Whether such a rule would hold good now it is impossible to say.
The absence of modern authority under this head might induce a suspicion as to the extent to which the general statements opening this chapter might be supported, were there not abundant authority with regard to the remaining species of property which will be now considered.
(0) See Appendix A, p. 5, ad fin.
(p) Canada, 4 Supreme Court Reports, 1 (1881).
(1) Benloe & Dalison, p. 46, case 84.
A rent-charge has been held to be recoverable from the (2) Incorporeal Crown by this means.
Thus it was held that where a man had title to a rent- charges. charge issuing out of lands seized into the king's hand, in such a case, so long as the king's possession lasted, he might sue by petition and recover the rent (r), of which doctrine we have illustrations in the suit by petition of the Count of Kent for a rent-charge granted to his father by King Edward II. (s), and in certain dicta of the judges to a like effect in two cases decided in the reign of Edward IV. (t).
In drawing the petition for the recovery of a rent-charge the following direction should be observed: "And if the party sueth to the Crown by petition for the said rent, he ought to shew in his petition that he hath demanded the rent, for if the possession had been in a common person he could not distrain before demand, nor by consequence have assize. And the rent, notwithstanding the possession of the Queen, is demandable and payable for to entitle the party unto petition against the Queen, and to distress. against the subject when the possession of the Queen is removed " (u).
(2.) There is also a case in which a corody, which is an allow- Corodies. ance in money or food payable by religious houses to the king their founder for the sustenance of his servants, was successfully discharged after suit by petition of right to the Crown (x).
(3.) At a very early date it seems also to have been de- Advow
(r) Y. B. 9 Hen. 4, 4; Bro. Abr., tit. Pet. 9.
(s) Y. B. 21 Ed. 3, 47;
Bro. Abr., tit. Pet. 11.
(t) Y. B. 13 Ed. 4, 6; Bro. Abr., tit. Pet. 29; Y. B. 4 Ed. 4, 21; Bro. Abr., tit. Pet. 28.
(u) See Wicks and Dennis Case, Leonard, part i., 190, case 271. (x) Y. B. 5 Ed. 4, 118; Bro. Abr., tit. Pet. 26.
cided that an advowson of which a subject had been deprived by the usurpation of the Crown could be recovered back by a petition of right in the nature of a Quare impedit.
The following is apparently the earliest case upon the subject:
"S. C. sued a petition to the king, alleging that whereas M. P. was seized in fee of an acre of land in T., and of the advowson of The Church of T. appendant, and gave the land and the advowson with a warranty to the plaintiff in fee, and that the king by reason of his wardship of the heir of M. had presented W. of H. who was received and instituted, and forasmuch as the heir has assets by descent, and that the plaintiff is ousted of his advowson without response which is clearly contrary to Magna Charta, &c., therefore he sues his petition; and the bill of petition was sent (bayle) into the Chancery commanding that right should be done (droit soit fait), and there the other said that the land and advowson was in tail, to which the other pleaded in reply the warranty and the assets, whereupon it was prayed for the king that the pleadings might be stayed because of the heir's nonage, but non allocatur; for this petition is in lieu of Quare impedit, in which action, because of the effect that a lapse of six months has, and for reasons of that sort, age cannot be pleaded; and also because the heir is not a party, but the king, whereupon he was called on to answer without pleading age. And note that before another plea was pleaded 'Scire facias' issued against the king's presentee 'ad informandum dominum regem,' and afterwards because the king's presentee would not maintain that the heir had nothing by descent, the presentation was repelled quod nota "(y).
In reading the above case it should be borne in mind that at the time it was decided, not only did the patron by (y) 43 Assize, plea. 21; Bro. Abr., tit. Pet. 18.