the Queen, and that possession should be delivered to such person as her Majesty should by warrant under sign manual appoint. In consequence of this decision by a warrant under her Majesty's sign manual dated the 18th of December, 1872, it was directed that the leasehold estate of which the testator died possessed should be assigned to John Gray, the solicitor to the Treasury, and by an indenture dated the 31st of May, 1873, between the trustees of the one part and John Gray of the other part, the said leasehold estate was assigned to John Gray as a trustee for her Majesty.

A petition of right was presented by James Gosman on behalf of himself and others on the 2nd of December, 1873, by which the suppliant claimed to be one of the next of kin of the testator as being his second cousin once removed, and the suppliant prayed "that it might be ascertained under the direction of the Court who were then the next of kin of the testator, and, upon such next of kin being ascertained, that it might be declared that they were entitled to the leasehold estates of which the testator died possessed. And thereupon that her Majesty would be pleased to direct by a warrant under her sign manual that the said John Gray should reassign the said leasehold estates to the parties so found entitled thereto, and that he should account to the suppliant and other the next of kin of the testator for the several sums of money received by him in respect of the rents of the said leasehold premises prior to the 31st of May, 1873, and also the rents received since that date."

Upon this petition of right coming on to be heard, an order was made by the Court on the 21st of February, 1878, for inquiries according to the prayer, and in pursuance of that decree the Chief Clerk found that the suppliant and certain other persons were the only next of kin of the testator, William Brownlie, living at his death on the 14th of

February, 1864, being second cousins once removed; and to them the leaseholds were accordingly re-assigned (o).

profits.

Where, however, property is recovered from the Crown a Who takes further question may remain whether, upon a judgment for the mesne restitution being given and the suppliant restored to possession, the Crown is accountable for the mesne profits received from the property during its possession.

mon Law

The law upon this subject seems to be as follows: "By The Comthe Common Law, although the seizure (by the Crown) was doctrine not lawful, yet, for the mesne profits upon the livery or 'ouster le main,' the party grieved was not restored to the mesne profits" (p).

28 Ed. 1,

To remedy this inconvenience it was enacted by the statute articuli super chartas (g): "That from henceforth where the escheator or the sheriff shall seize other men's lands into the king's hands (where there is no cause of was modified by seizer), and after, when it is found no cause, the profits statute taken in the meantime have been still retained and not c. 19, restored when the king hath removed his hand: the king will that if hereafter any lands be so seized and after it be removed out of his hands by reason that he hath no cause to seize nor to hold it, the issues shall be fully restored to him to whom the land ought to remain, and which hath sustained the damage."

And by the statute "de escheatoribus," commonly known as the Statute of Lincoln, it was further enacted in the following year (29 Ed. 1): "That where inquests taken by and 29 Ed. the king's escheators by any of the king's writs, purchased out of the Chancery, being returned, and it be found by such that nothing is holden of the king whereby the king

(0) The further question which arose in this case as to the right of the suppliants to the restitution of certain cash with mesne profits and interest is considered later on in this work.

(p) Coke, 2 Inst. 572.

(q) 28 Ed. 1, c. 19.

1.

G

Lord

Coke's interpretation of

these statutes.

ought to have the custody of such lands and tenements by reason of the inquests taken by his escheators that immediately and without any delay the escheators shall be commanded by the king's writ out of the Chancery, to put from their hands (manum suam amoveant) all the lands and tenements so taken into the king's possession; and if they have taken any profits of such lands and tenements so taken into the king's hands by them from the time that such lands and tenements fell into the king's hands, they shall make full restitution to him or them for whom it was found by inquests taken by the same escheators that such lands ought to remain.” "And as it is said before if it be found by inquests taken by the escheators and returned, that the custody of the same lands and tenements contained in the inquest and seized into the king's hands, ought not to remain unto the king, then the escheator shall be commanded forthwith to discharge his hands thereof, and to restore the issues wholly."

The fifth of the "ten points" which Coke says (r)" are to be observed upon these statutes," is that "these statutes extend by equity to ouster le main' and 'amoveas manus upon petitions, and 'monstrans de droits' not only in cases concerning wardship, but freehold and inheritance ;” (s) and, for this proposition, quotes 24 Ed. 3, 33 and 9 Ed. 4, 52; Kelway, 1 H. 8, 156; but, as the second of the ten points is, that “issues are intended rents and things leviable by the escheator, which may be restored though the escheator hath accounted for them, and not paid; but the money being once in the king's coffers shall not be restored," the statutes (r) 2 Inst. 572.

"And where the letter (of this statute) goeth only to the cases where the King seizeth before office, making no mention of an 'ouster le main 'to be granted upon any petition traverse or monstrans de droit, ‘yet men by an equitie extend this statute both to the one and to the other, because the statute is beneficial" (Staunford's Prerog., cap. xxvi., fol. 82).

are not so beneficial to the subject as they appear at first sight, since, according to this interpretation, only such part of the issues and profits as have not been paid in at the receipt of Exchequer can be restored.

by Lord

ers' Case.

And this interpretation of the statutes seems to be the Supported right one; thus, Lord Somers, in his argument upon the Somers in Bankers' Case, observes as follows (t): "The judgments the Bankgiven by the barons in these cases are not consistent with another known maxim: that when once money is paid into the receipt of the Exchequer no Court has any power over it, nor is there any legal method to fetch it back again; although, in several cases, if it had not been actually paid into the receipt it might have been restored to the party. To this purpose nothing can be more strong than the common cases of reversals of outlawries and judgments; where, though by the judgment of reversal the party is to be restored to all that he has lost, yet whatever has been actually brought into the receipt of the Exchequer is gone past redemption, and yet, when the judgment or outlawry is reversed, it is to all purposes as if it had never been. And these are cases of restitution which are most favoured in law and the relief extended as far as possible. In like manner when upon an office or inquisition a title is found for the king and the mesne profits are paid into the receipt, if upon a traverse' or 'monstrans de droit' judgment be afterwards given for the subject, and an 'amoveas manus awarded, yet as to profits paid into the receipt there shall be no restitution. This is so well known that in cases before the barons where there is a question touching the profits of an estate whereof the title is found for the king, if they conceive a doubt upon a suggestion of a subject's right which may hereafter appear, they will in discretion direct the money to remain in the Chamberlain's hands (t) 14 Howell's State Trials, 71, seq.

some time and not to be paid immediately into the receipt, because when it is once there it is out of their power and cannot be brought back again.

"As to the cases of money levied upon offices or inquisitions found, my Lord Chief Justice observed that there was a difference between a judgment upon a petition of right and a judgment upon a traverse or a 'monstrans de droit.' That in the first case the judgment was general 'that the king's hands should be amoved and the party restored to the possession;' but in the other case the judgment was 'that the party should be restored una cum exitibus et proficuis inde medio tempore perceptis,' and so he compared a judgment upon a petition of right to a real action at common law against a subject in which there were no damages, and a judgment on a 'monstrans de droit' to a possessory action in which damages were recovered at law.

"To this I answer that the cases of subjects are not to be compared to the case of the king; and that at the common law before the statute of 'articuli super chartas,' the subject in no case of 'amoveas manus' could have any judgment for restoring issues however false the office appeared, as Sir Edward Coke expressly affirms. But be that as it may, yet this distinction makes nothing to the present question. For in cases of 'monstrans de droit' or 'traverses' where the judgment is to restore the party to the mesne profits, it is generally expressed 'unde dicto domino regi nondum est responsum,' and where these words are omitted the same are understood. If the profits remain in the tenant's hands, or if they are in transitu in the hands of the receivers, though the receivers have accounted for them, the party is restored to them: but if they are answered into the receipt they are lost to him. This is affirmed by my Lord Chief Justice Coke in his commentary upon the statute of 'articuli super chartas' c. 19 [2 Instit. 572, 573], which act