« ForrigeFortsett »
effected before the risk commenced. Alderson, B.There Erch. of Pleas,
1841. was no over-insurance until the 13th.]
Per CURIAM.—The judgment must be for the plaintiff Masterman. to have a return of the premium to the amount of the over-insurance, to which the underwriters who subscribed the policies on the 13th of April are to contribute rateably, in proportion to the sums insured by them respectively on that day—the amount of over-insurance to be ascertained by taking into account all the policies, but no return of premium to be made in respect of the policies effected on the 12th of April.
The ATTORNEY-GENERAL v. LORD CHURCHILL.
May 1. This was an information of intrusion against the de. In an informa
tion of intrufendant, for alleged encroachments upon lands of the sion, the
Crown Crown in the forest of Wychwood, in the county of Oxford. has not the
right, as of its The venue was laid in that county.
lay the venue In Hilary Term, the Attorney-General moved that the in any county, venire facias juratores might issue into the county of Hert- or to issue the ford, instead of into the county of Oxford : and on the juratores into a
different county authority of The Attorney-General v. Parsons (a), the Court from that in
which the ve. made an order for that purpose absolute in the first instance. nue is laid. On a subsequent day in the same term, Sir W. W. Follett, for the defendant, obtained a rule to shew cause why the above order should not be rescinded, contending, on a review of the authorities, that the Crown had no prerogative to have the inquisition in another county from that in which the venue was laid. Against this rule
The Attorney-General, the Solicitor-General, R. V. Rich
(a) 2 M. & W. 23.
Exch. of Pleas, ards, and W. J. Alexander shewed cause.—The Crown has 1841.
the right, by its prerogative, to lay the venue, in an inforATTORNEY- mation of intrusion, in any county, or, when it is laid in a GENERAL
particular county, to have the inquisition in another. No doubt, as between subject and subject, the action would be in its nature local; but the Crown possesses, in this as in many other respects in the course of legal proceedings to which it is a party, a privilege which does not belong to the subject. Many of such privileges, which are clearly beyond dispute, are far more burthensome upon the subject, and, it might be alleged, more liable to abuse, than this. Thus, the Crown may choose its Court: and although the subject could have brought a real action only in the Court of Common Pleas, the Crown may bring a writ of right or a quare impedit in the Court of Queen's Bench or Exchequer. So, the subject can only have a trial at bar by leave of the Court: the Crown claims it de jure. The subject, at common law, could plead but one defence, whereas the Crown had always the right to plead several matters. The subject cannot amend without leave of the Court: the Crown may amend at any stage of the proceedings. Again, in a suit between subject and subject, if one party demurs, the other must join in demurrer, whereas the Crown may renounce the demurrer and join issue. The Crown possesses also privileges during the progress of the trial which are denied to the subject. The Attorney-General has the right to withdraw the record, after the jury have been sworn and the trial has proceeded : and is entitled to the reply, as well in criminal as in civil proceedings—even in cases of capital felony-although no evidence be adduced for the defendant. And a review of the authorities will shew that the privilege now contended for is equally indisputable.
It is not necessary, indeed, on the present occasion, to inquire whether this privilege is exerciseable in real actions: but it exists, at all events, in all personal actions; and an information of intrusion is a personal, and not a real,
action. The law is so stated in Manning's Exchequer Exch. of Pleas,
1841. Practice : it is there said (a)—"An information of intrusion is a proceeding which, although answering the
ATTORNEYpurpose of a real action, is said to be in the nature of an action of trespass quare clausum fregit for the King, CAURCHILL. in respect of a trespass committed against his lands and possessions, as by entering them without title, holding over after a Crown lease is determined, taking the profits, catting down timber, and the like.” And again (6)—“The King may lay his venue in any county, without regard to the local situation of the premises.” The authorities cited are Lyster dem. Eaton v. Edwards (c), and Rex v. Webb (d). In Com. Dig., Prerogative, (D. 85), it is laid down, that * The King may lay his action in what county he pleases, in any personal action :" and in another place, Debt, (G. 12), “ If the King sues a personal action, he may lay it in what county he pleases, by his prerogative.” And have ing laid it in a particular county, the Crown has equally the right to change it into another. For this the case of Rex v. Webb is an express authority. That was an action for embezzling the King's goods, which was laid in the declaration to be in London: it was moved for the King that the county might be changed; and the Court held, “that the King might choose his county, and might waive that which he seemed to have elected before, as he may waive his demurrer and join issue, and contrà.” In the report in Siderfin, the Court is stated to have said that “The King has the prerogative to try his personal actions where he pleases ;” and it will be argued for the defendant that the "personal actions” there mentioned mean transitory actions: if however the right were so limited, the point could never have arisen, because the subject has equally the right, in transitory actions, to lay the venue where he pleases. The decision must necessarily apply to something
(a) Book 3, chap. 2, s. 1, p. 196. (c) Savile, 9, 10. (6) Ibid. s. 2, p. 197.
(d) i Ventr. 17; 1 Sid, 412.
Exch. of Pleas, which the subject had not, but which the Crown had, autho1841.
rity to do. Personal actions are opposed to real actionsATTORNEY local to transitory actions. Many entries are to be found GENERAL
among the records of this Court, shewing that wherever the LORD CHURCHILL.
Attorney-General has applied for leave to issue a venire into a different county from that in which the venue was laid, it has been always stated on the record that it appertains of right to the Crown to try the cause where it pleases in personal actions. Thus, in the Order Book of this Court, Easter Term 53 Geo. 3, is the following entry :-" Rex v. Penny, sci. fa. under an extent, venue Suffolk, changed to Middlesex :" and the form of the order is as follows:“ His Majesty's Attorney-General prays may be inquired of by the Court, and the said John Penny doth the like. Issue is joined, and his Majesty's Attorney-General being present here in Court in his proper person, states to the Court here that it is the prerogative of his said Majesty, that all inquisitions in personal suits instituted in this Court for and on behalf of his said Majesty, be taken in any county within that part of the United Kingdom of Great Britain and Ireland called England, and prays that an inquisition in the premises may be taken in the county of Middlesex, which is ordered by the Court accordingly." In Rex v. Tyers, Trin. Term, 4 Geo. 3, (also sci. fa. under an extent), there is a similar entry of change of venue from Suffolk to Middlesex, with the like suggestion by the Attorney-General. Other like instances occur in Rex v. Leicester and Rex v. Grimwood, Mich. Term, 25 Geo. 3, Rex v. Ogle, Mich. Term, 48 Geo. 3, and Rex v. Stake, Mich. Term, 55 Geo. 3: which are changes of venue from the counties of Essex and Lancaster to Middlesex. Great authority is due to these recorded precedents : it is laid down in Plowden, 321, (The Case of Mines), that the precedents and records of the Exchequer are to be taken as the most substantial proofs of the law of the land. The same right has been admitted also in penal actions, in
which the Crown may lay the venue or try the action Exch. of Pleas,
1841. in what county it thinks fit : see 4 Inst. 172; 1 Saund. 312 b., n. (2). There are instances also in which the ATTORNEY
GENERAL right has been adjudged to belong to the Crown even in criminal proceedings. Thus, in an information against Churchill., the inhabitants of Wilts for not repairing a bridge, the Court held that “the Attorney-General might take a venire facias to any adjacent county, and that it might be de corpore of the whole, or de vicineto of some particular part therein next adjoining :” Rex v. Inhabitants of Wilts (a). An information of that nature is at least as local in its nature as an information of intrusion. There are, however, authorities in support of the view that this privilege belongs to the Crown in real actions, properly so called. In Bulwer's case (6) it is laid down, that “Writs of quare impedit and quare incumbravit shall be always brought where the church is, for by the one the plaintiff shall recover his presentment, and by the other the bishop's clerk shall be removed, and the plaintiff's clerk admitted ;” and so it is said to have been decided in 4 Edw. 3, fol. 9: “otherwise it is in the King's case.” In Bac. Abr., Prerogative (E. 7), it is stated to be "a rule of the common law, that the King, by his prerogative, may sue in what court he pleases, and therefore may bring a writ of right or a quare impedit in the Court of King's Bench.” The same position is recognised as law in Com. Dig., Action (N. 4), where it is said, that a quare impedit shall always be brought where the church is, "except in the case of the King." The case of Lyster v. Edwards (c) has always been cited and considered as an authority to the same extent. That was an ejectment for lands in Wales; and the question before the Court was, whether an officer of this Court had the privilege of bringing the action in the county of Salop. Manwood, J., says,
(a) 3 Salk. 381. VOL. VIII.
(6) 7 Rep. 53.
(c) Savile, 9, 10.