Money,

formerly doubtful whether

it could be recovered.

Money.

The whole of the authority upon the question whether money is recoverable from the hands of the Crown is contained in a few modern decisions.

The first (k) time that money was sought to be recovered from the hands of the Crown was in the Baron de Bode's Case (1), and the point was then taken that only lands or goods were recoverable by this process and not money. Lord Denman, however, in giving judgment upon this part of the case, said as follows: "The position of the suppliant is this, that money has been received by the Crown in trust for and to the use of the suppliant. The Crown urge that supposing all this is true (which they deny) still no judgment can be given for the suppliant, as a petition of right is maintainable for no other objects than land or specific chattels, certainly not for a sum of money claimed either as debt or by way of damages. Upon this point we may observe that there is nothing to secure the Crown against committing the same species of wrong-unconscious and involuntary wrong-in respect of money which founds the subject's right to sue out his petition when committed in respect of land or specific chattels, and there is an unconquerable repugnance to the suggestion that the door ought to be closed against all redress or remedy for such wrong.” In accordance with this expression of opinion are later

(k) In Ryves v. The Duke of Wellington, 9 Beavan, 579; 15 L. J. Ch. 461; 10 Jur. 697; which was a suit by an executor of a daughter of the Duke of Cumberland against the defendant as executor of George IV., to recover a legacy which had been left by the will of George III. to the plaintiff's testator, it was suggested by Langdale, M.R., that the proper remedy was by petition of right to George IV.; and also see dictum of Graham, Baron, quoted in Ellis v. Earl Grey, 6 Sim. 220, as to the recovery of a pension by this means.

(1) 8 Q. B. 203; 10 Jur. 208.

cases in which money has been recovered from the Crown by this process.

The most usual way in which, at the present day, a subject's money finds its way wrongfully into the hands of the Crown is when it is paid to the Crown under a mistake, and under protest in the form of duty or tax. In such cases, should the tax or duty prove to have been wrongly levied, the whole or part of the amount so paid appears to be recoverable upon a petition of right.

cases in

under

Thus, in the case of Executors of Percival v. The Queen (m), Recent (1864) the suppliants were allowed to proceed without ques- which tion under the “Petitions of Right Act, 1860 " (23 & 24 Vict. money paid c. 34), for the return of the difference in excess of £150 on mistake has account of stamp duty paid on probate by the suppliants, covered: and upon the merits they were successful.

been re

Percival

v. Reg.

Again, in the case of the Executors of Robert Cobbold Perry Perry v. The Queen (n), in which the suppliants sought the repay- v. Reg. ment of a sum of £750 paid in respect of property which was not their testator's property at the time of his death, as it was bequeathed to him by his father who survived him, the same procedure was adopted, but unsuccessfully, the Crown succeeding upon demurrer.

v. Reg.

The case of De Lancey v. The Queen (o) is a further De Lancey illustration of the foregoing principle; and lastly, in the case of Crossman and Another v. The Queen (p) (the details Crossman

v. Reg.

(m) 33 L. J. (Ex.) 289; 3 Hurls. & C. 217; 10 Jur. (N.S.) 1059; 10 L. T. 622; 12 W. R. 966.

(n) L. R. 4 Ex. 28; 19 L. T. 520; 17 W. R. 382; S. C. Bacon v. Reg. 38 L. J. (Ex.) 5.

(0) L. R. 6 Ex. 286; L. R. 7 Ex. 140.

(p) L. R. 18 Q. B. D. 256; 35 W. R. 303; 55 L. T. 848; Times, 22nd December, 1886:-BEFORE MR. JUSTICE Denman and MR. JUSTICE HAWKINS. CROSSMAN AND ANOTHER v. THE QUEEN. This was a case stated pursuant to the Petitions of Right Act, 1860, and Order XXXIV., rule 1, under a consent order made on May 13, 1883. The question at issue was whether the Crown was entitled to take from the sup

of which are given below), it was recognised and acted upon.

pliants stamp duties on accounts under s. 38 of the Customs and Inland Revenue Act, 1881, or (in the event of no such duties being payable) succession duty, or neither of such duties. It was admitted on behalf of the Crown that the succession duty, if payable, would be at the rate of 1 per cent. only. The suppliants were two of the sons of Robert Crossman, who was formerly a partner in the great brewing business carried on under the style of Mann, Crossman, & Co., and who died on July 19, 1883. In October, 1873, the partners were the late Mr. Robert Crossman, Mr. Thomas Mann, and Mr. James Hiscutt Crossman, one of the present suppliants, and Alexander Crossman, the other, Mr. Thomas James Mann, and Mr. William Thomas Paulin; and by the indenture of partnership then entered into between the parties, the property of the late firm was to be deemed to be of the net value of £320,395. The capital of the new partnership was to be divided into eight shares, whereof two were to belong to Mr. Robert Crossman, two to Mr. Thomas Mann, one each to Mr. J. H. Crossman, Mr. Alexander Crossman, Mr. Thomas James Mann, and Mr. W. T. Paulin. Each partner was to bring into the capital of the partnership in respect of each one-eighth share therein to which he might be entitled the sum of £50,000, and the sum of £320,395 was to be considered as belonging to and having been brought in by the partners in the following proportions, viz:-£100,000 by Mr. Robert Crossman, £100,000 by Mr. Thomas Mann, and the remaining £120,395 by the other four partners. In and previous to 1879 and 1883 negotiations took place between the late Mr. Robert Crossman and his two sons, the suppliants, with reference to the transfer to them of the two shares belonging to him, the father. In the result an agreement was come to between them on July 12, 1883, by the terms of which the father was to transfer his two shares to his sons, they paying him 4 per cent. on their value during his life, and on his death £2,000 a year to his widow, and £100 a year to a third son of Mr. Robert CrossMr. Robert Crossman died almost immediately after the deeds had been executed, and in January, 1884, the suppliants by mistake, as they now alleged, paid to the Commissioners of Inland Revenue the sum of £3,777, being 3 per cent. on £125,823 10s., the assumed value of their deceased father's two shares. It was agreed that if the Court were of opinion that some duty (under the head of account duty or succession duty) was payable, then the difference (if any) between the said sum of £3,777, and the amount of duty, or if the Court were of opinion that no duty at all was payable, then the whole of the said sum with such interest as the Court should think fit, should be repaid to the suppliants. The questions for the opinion of the Court were whether (1) stamp duties on the accounts were payable by the suppliants under the circumstances,

man.

It has not been thought necessary to state in the above cases the facts upon which each one proceeded; but in none of them was any question raised as to the right of the suppliant to adopt the form of remedy given by the Petitions of Right Act.

The principle would seem, also, to extend to other cases Mesne profits where money has wrongfully found its way into the hands thus reof the Crown thus: in the recent case of In re Gosman (q), covered. the particulars of which have been given above, a sum of over £6000, being the accumulated rents of certain leasehold property which in default of next of kin had passed into the hands of the Crown, was recovered by a suppliant upon petition of right.

And in the year 1869 (r) a question relating to salary Salary. which had arisen between the Crown and one of its servants was adjusted by this process. There Arthur Burke, Esq., Master of the Court of Queen's Bench in Ireland, sued by petition of right to raise a question as to the amount of salary to which he was entitled. The question arose thus: He had been prothonotary, with a salary of £1500 Irish, equal to £1384 currency. The office was abolished, and he was made Master with a salary of £1000, with a condition

under s. 38 of the Customs and Inland Revenue Act, 1881, or no duty was payable under that section; and whether (2) succession duty was payable by the suppliants. The whole question in the case was whether the deed of July, 1883, was a voluntary settlement by Mr. Robert Crossman or, as the suppliants' contention was, one for good consideration.

The Court held that it was a voluntary settlement, and that therefore the Crown was entitled to stamp duty upon the amount of the value of the late Mr. Robert Crossman's two shares.

Judgment accordingly for the Crown with costs.

Sir Horace Davey, Q.C., and Mr. Danckwerts were for the suppliants; the Attorney-General (Sir R. E. Webster, Q.C.), the Solicitor-General (Sir Edward Clarke, Q.C.), and Mr. A. V. Dicey appeared for the Crown. (q) L. R. 15 Ch. D. 67; 49 L. J. Ch. 590; 42 L. T. 804; 29 W. R. 14. (r) Burke v. Reg., Times, 29th May, 1869.

Tolls.

in the Act that he should receive in addition the difference of £384 sterling. A subsequent Act had increased the salary of Master to £1400 a year, and the question was, whether he was still entitled to the additional sum of £384 a year.

Mellish (with him, Mr. Philbrick), argued for the claimant.

The Attorney-General (with him, the Solicitor-General and Mr. Archibald), argued for the Crown.

The Court decided in favour of the claimant, on the ground that the £384 a year was given by way of compensation for the loss of the former office, and gave judgment for the claimant for the amount in question.

Closely connected with this portion of the subject, but slightly differing in principle from the foregoing cases, is a recent case (s) in which tolls were sought to be recovered from the Crown, the details of the case are as follows:

The Northam Bridge Company was constituted by an Act of 1796 for the purpose of making a bridge and road across the Itchen at Northam, within the liberties of the town and county of Southampton, and also authorized to make certain roads as approaches to the bridge and to charge tolls. The Post Office authorities had paid tolls to the company in respect of their mails until the commencement of the year 1885. By sect. 53 of the Act of 1796 the company's roads are to be deemed turnpike roads within the meaning of the General Turnpike Act of 1773 and Acts made for the purpose of explaining, amending, or repealing the same. By an Act of 1785 mails are exempted from the payment of turnpike road tolls. The company relied on the point that the Act of 1785 was not, within sect. 53 of the Act of 1796, "made for the purpose of ex(s) Northam Bridge Company v. The Queen, Times, 24th of Nov. 1886.