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George IV. granted and demised to the Duke of York, for divers good considerations, all the mines, etc., within the province of Nova Scotia. At the time of those letters patent, Cape Breton was a part of this province, but there was some doubt whether the mines therein were intended to be included in the lease. At the death of the Duke of York, his Majesty claimed the mines in Cape Breton, and granted an agreement for a lease thereof to Messrs. Rundell & Bridge. The executors of the Duke of York thereupon presented a petition to his Majesty in his High Court of Chancery praying that "his Majesty would be graciously pleased to order that right be done in the matter aforesaid, and to indorse his Royal declaration to that effect on the petition, and to refer the same to the Lord Chancellor in the Court of Chancery; and that the plaintiffs might thenceforth prosecute their complaint in such Court against the Attorney-General as representing the rights and interests of his Majesty, and also against such other persons as might be necessary and proper according to the rules of equity, and that they might be at liberty to make the Attorney-General a party thereto; and to pray and obtain such relief in the matters therein mentioned as should be just." To this his Majesty was pleased to return the following answer: "Let right be done." Upon which the plaintiffs presented their petition to the Chancellor, praying" that they might be at liberty to file a bill in the Court of Chancery against the AttorneyGeneral as representing the rights and interests of his Majesty, and against other persons," &c. The Lord Chancellor then made the order asked for, upon which the case proceeded against the Attorney-General (g).
A bill was thereupon filed alleging the facts above stated, with this variation, that the agreement for a lease was alleged to be an actual lease, and praying "That it might (g) Taylor v. Atty.-Genl., 8 Sim. 413, at p. 424.
be declared that the letters patent were valid to all intents and purposes, according to the true tenor, purport, and effect thereof; and that the Duke thereby became, and that the plaintiffs as his personal representatives then were entitled to the mines, &c., in that part of the province of Nova Scotia which is called the county of Cape Breton, and that the lease made to the defendants, Rundell and Bridge, was void, and that the counterpart thereof in their possession might be cancelled."
The Attorney-General put in an answer; but the plaintiffs succeeded ultimately in getting judgment in their favour, which, as no lease had been granted, simply consisted of the declaration asked for.
The two foregoing cases are apparently the only authorities previous to the passing of the Petitions of Right Act, 1860, for saying that the Crown is liable on claims in equity; and the question naturally arises whether, as the liability of the Crown is the same before and since the Act, they are sufficient authority for the practice which has arisen under the Act of presenting such claims against the Crown.
It is submitted that they are not. In the first place. it should be noticed, that they are not, properly speaking, petitions of right at all, but only voluntary submissions of the Crown to the authority of the Court for the purpose of deciding particular questions, and therefore they could hardly be used as precedents in a case where the jurisdiction was disputed. Secondly, that they themselves do not rest upon any precedent whatever, no authority having been adduced on either side for the course which was adopted therein. Thirdly, the fact that the Attorney-General was the nominal defendant makes considerable difference, inasmuch as the Court would be able to make an order in personam against him which it could not were the Crown respondent.
Notwithstanding these facts, this course of proceeding against the Crown seems to have become the recognised one in the Court of Chancery at least, and ultimately to have been mistaken for petition of right proper.
tion of this
Thus in Kirk v. The Queen (h), Vice-Chancellor Wickens Recognisays: "The original theory (i) of a petition of right was practice by Wickens, this: the subject applied to her Majesty for leave to sue her v.-C. Majesty as he might have sued a subject; and the decision on the petition of right only went to say 'Let right be done.' Then it might be done in any way, as for instance in Clayton v. Attorney-General, by filing a bill against the Sovereign and a number of subjects. The result of a petition of right was, if successful, that her Majesty, not with reference to the remedy but the trial of the right, so to speak, descended from the throne and allowed herself to be sued before her own inferior officers just as if she were a subject; and proceedings were instituted in the same form, and with the addition of whatever other parties might be necessary or would be proper if the Queen had been a subject."
However, since the passing of the Petitions of Right Act, Petitions in Chancery several petitions of right have been presented claiming since relief against the Crown upon equitable grounds, which are Act. here given merely in chronological order, it being difficult to discover upon what principles the Court has acted. These cases should be regarded not so much as authorities showing for what a petition of right can but for what a petition of right has been brought in this division of the High Court.
The first was the case of Kirk v. The Queen (k), quoted Kirk v. above. There the suppliant contracted with the Secretary claiming of State for the War Department for the execution of certain an account, damages and injunc
(h) L. R. 14 Eq. 558.
(i) The Vice-Chancellor does not give any authority for this "original theory."
(k) L. R. 14 Eq. 558 (1872).
public works in accordance with certain specifications and schedules, and under the direction of an engineer officer appointed to superintend the works. The contract contained a clause to the effect that the Secretary of State should be able to fix the time within which any proportion of the work was to be completed, and to determine the contract in case of undue delay. The suppliant did not proceed with due diligence, and ultimately when threefifths of the time stipulated for the completion of the contract had elapsed and very little more than one-fifth of the requisite work had been done, notice was given him to suspend the proceedings and withdraw from the site of the works. This he refused to do, and presented his petition of right against the Crown and the engineer officer. In it he prayed the following relief: (1) An account and payment of what was due to him under the contract; (2) Damages in respect of the alleged breach of contract by the Crown in wrongfully determining the contract; (3) An injunction to restrain the Secretary of State from determining the contract and excluding the suppliant from the site; (4) A like injunction against the further employment of the aforesaid engineer officer as superintendent, and that he might pay the costs of the suit; (5) And for further relief.
Upon this petition the suppliant moved for an interlocutory injunction in the terms of paragraphs three and four of his petition, but the motion was ordered to stand until the hearing.
The case upon the hearing is not reported, and it is therefore difficult to see whether the suppliant ever ultimately recovered.
The next case (7) was two years later, in which a decla
James v. Reg.,
claiming a (1) James v. The Queen, L. R. 17 Eq. 502 (1874); 43 L. J. Ch. 754; 30 L. T. 84; 22 W. R. 466.
ration of title and an order to convey certain property was sought from the Crown. The facts of the case have been given above (m), and it is needless to repeat them otherwise than shortly here. James Davis, a free miner of the Forest of Dean, applied for a vacant gale, and his application was duly entered in the books of the gaveller, who thereupon gave notice that a grant of the gale would be made on a particular day. Other applicants appeared whose claims were disallowed, but the grant of the gale was delayed until the free miner died, when his devisees presented a petition of right praying "that, by virtue of the application of James Davis, dated the 4th of November, 1868, the said J. Davis was entitled to have the gale specified in the advertisement dated the 28th of February, 1873, granted to him in priority to and to the exclusion of all other free miners of the said hundred, and that such gale ought accordingly to have been granted to him on the 14th of March, 1873; and that it might be declared that under the circumstances aforesaid the said gale ought now to be granted to the suppliants in right of the said J. Davis, deceased, upon the trusts of his will; and that the same might accordingly be granted by the gaveller to the suppliants as such trustees as aforesaid."
A demurrer by the Crown on the ground that the suppliants were not free miners was ultimately upheld, and disposed of the case (n).
The same year another case dealing with the same subject- Re Brain, claiming matter was heard (o). In this case, too, for the particulars relief of which the reader is referred to page 77, the suppliant against
(m) Page 76.
(n) James v. The Queen, L. R. 5 Ch. D. 152; 46 L. J. Ch. 416; 36 L. T. 903; 25 W. R. 615.
(0) Re Brain, L. R. 18 Eq. 389 (1874); 44 L. J. Ch. 103; 31 L. T. 17; 22 W. R. 867.