the return of which the king's attorney is at liberty to plead in bar; and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. Thus, if a disseisor of lands, which are holden of the crown, dies seized without an heir, whereby the king is prima facie entitled to the lands, and the possession is cast on him either by inquest of office, or by act of law without any office found; now the disseissee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the disseisin made. (1) But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monstrans de droit which is putting in a claim of right grounded on facts already acknowledged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. As if, in the case before supposed, the whole special matter is found by an inquest of office (as well the disseisin, as the dying without an heir), the party grieved shall have monstrans de droit [*257] at the common law. (m) But as this seldom happens, and the *remedy by petition was extremely tedious and expensive, that by monstrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III, c. 13, and 2 and 3 Edw. VI, c. 8, which also allow inquisitions of office to be traversed or denied, wherever the right of a subject is concerned, except in a very few cases. (n) These proceedings are had in the petty-bag office in the court of chancery: and, if upon either of them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et possessio restituatur petenti, salvo jure domini regis; (0) which last clause is always added to judgments against the king, (p) to whom no laches is ever imputed, and whose right (till some late statutes) (g) was never defeated by any limitation or length of time. And by such judgment the crown is instantly out of possession; (r) so that there needs not the indecent interposition of his own officers to transfer the seisin from the king to the party aggrieved. II. The methods of redressing such injuries as the crown may receive from the subject are, 1. By such usual common law actions, as are consistent with the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity cannot be disseised or dispossessed of any real property which is once vested in him, he can maintain no action which supposes a dispossession of the plaintiff; such as an assize or an ejectment: (s) but he may bring a quare impedit, (t) which always supposes the complainant to be seized or possessed of the advowson: and he may prosecute this writ, like every other by him brought, as well in the king's bench (u) as the common pleas, or in whatever court he pleases. So, too, he may bring an action of trespass for taking away his goods; but such actions are not usual (though in strictness maintainable) for breaking his close, or other injury done upon his soil or possession. (w) It would be equally tedious *and difficult to run through every minute dis[*258] tinction that might be gleaned from our ancient books with regard to this matter; nor is it in any degree necessary, as much easier and more effectual remedies are usually obtained by such prerogative modes of process, as are peculiarly confined to the crown. 2. Such is that of inquisition or inquest of office: which is an inquiry made by the king's officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels. (x) This is done by a jury of no determinate number; being either twelve, or less, or more. As, to inquire, whether the king's tenant for life died seized, whereby the reversion accrues to the king; whether A, who (D) Bro. Abr. tit. petition. 20. 4 Rep. 58. (m) 4 Rep. 55. 9 Geo. III, c. 16. (n) Skin, 608 (0) 2 Inst. 695. Rast. Entr. 463. (r) Finch, L. 459. (u) Dyversyte des courtes, c. bank le roy. Hen. 1V, 4. (z) Finch, L. 323, 324, 825. held immediately of the crown, died without heirs; in which case the lands belong to the king by escheat: whether B be attainted of treason; whereby his estate is forfeited to the crown: whether C, who has purchased lands, be an alien; which is another cause of forfeiture: whether D be an idiot a nativitate; and therefore, together with his lands, appertains to the custody of the king; and other questions of like import, concerning both the circumstances of the tenant, and the value or identity of the lands. These inquests of office were more frequently in practice than at present, during the continuance of the military tenures amongst us: when, upon the death of every one of the king's tenants, an inquest of office was held, called an inquisitio post mortem, to inquire of what lands he died seized, who was his heir, and of what age, in order to entitle the king to his marriage, wardship, relief, primer-seisin, or other advantages, as the circumstances of the case might turn out. To superintend and regulate these inquiries, the court of wards and liveries were instituted, by statute 32 Hen. VIII, c. 46, which was abolished at the restoration of King Charles the Second, together with the oppressive tenures upon which it was founded. *With regard to other matters, the inquests of office still remain in [*259] force, and are taken upon proper occasions; being extended not only to lands, but also to goods and chattels personal, as in the case of wreck, treasure-trove, and the like; and especially as to forfeitures for offences. For every jury which tries a man for treason or felony, every coroner's inquest that sits upon a felo de se, or one killed by chance-medley, is not only with regard to chattels, but also as to real interests, in all respects an inquest of office: and if they find the treason or felony, or even the flight of the party accused (though innocent), the king is thereupon, by virtue of this office found, entitled to have his forfeitures; and also, in the case of chance-medley, he or his grantees are entitled to such things by way of deodand, as have moved to the death of the party. These inquests of office were devised by law, as an authentic means to give the king his right by solemn matter of record; without which he in general can neither take nor part from any thing. (y) For it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon or seize any man's possessions upon bare surmises without the intervention of a jury. (2) It is however particularly enacted by the statute 33 Hen. VIII, c. 20, that, in case of attainder for high treason, the king shall have the forfeiture instantly, without any inquisition of office. And, as the king hath (in general) no title at all to any property of this sort before office found, therefore by the statute 18 Hen. VI, c. 6, it was enacted, that all letters patent or grants of lands and tenements before office found, or returned into the exchequer, shall be void. And by the bill of rights at the revolution, 1 W. and M. st. 2, c. 2, it is declared, that all grants and promises of fines and forfeitures of particular persons before conviction (which is here the inquest of office) are illegal and void; which indeed was the law of the land in the reign of Edward the Third. (a) [*260] *With regard to real property, if an office be found for the king, it puts him in immediate possession, without the trouble of a formal entry, provided a subject in the like case would have had a right to enter; and the king shall receive all the mesne or intermediate profits from the time that his title accrued. (b) As, on the other hand, by the articuli super cartas, (c) if the king's escheator or sheriff seize lands into the king's hand without cause, upon taking them out of the king's hand again, the party shall have the mesne profits restored to him. In order to avoid the possession of the crown, acquired by the finding of such office, the subject may not only have his petition of right, which discloses Ibid. 82. (x) Gilb. Hist. Exch. 132. Hop. 347. (a) 2 Inst. 48. new facts not found by the office, and his monstrans de droit, which relies on the facts as found: but also he may (for the most part) traverse or deny the matter of fact itself, and put it in a course of trial by the common law process of the court of chancery: yet still, in some special cases, he hath no remedy left but a mere petition of right. (d) These traverses, as well as the monstrans de droit, were greatly enlarged and regulated for the benefit of the subject, by the statutes before mentioned, and others. (e) And in the traverses thus given by statute, which came in the place of the old petition of right, the party traversing is considered as the plaintiff; (f) and must therefore make out his own title, as well as impeach that of the crown, and then shall have judgment quod manus domini regis amoveantur, &c. 3. Where the crown hath unadvisedly granted any thing by letters patent, which ought not to be granted, (g) or where the patentee hath done an act that amounts to a forfeiture of the grant, (h) the remedy to repeal [*261] the patent is by writ of scire facias in chancery. (i) This may be brought either on the part of the king in order to resume the thing granted; or, if the grant be injurious to a subject, the king is bound of right to permit him (upon his petition) to use his royal name for repealing the patent in a scire facias. (k) And so also, if upon office untruly found for the king, he grants the land over to another, he who is grieved thereby, and traverses the office itself, is entitled before issue joined to a scire facias against the patentee, in order to avoid the grant. (1) (3) 4. An information on behalf of the crown, filed in the exchequer by the king's attorney-general, is a method of suit for recovering money or other chattels, or for obtaining satisfaction in damages for any personal wrong (m) committed in the lands or other possessions of the crown. It differs from an information filed in the court of king's bench, of which we shall treat in the next book; in that this is instituted to redress a private wrong, by which the property of the crown is affected; that is calculated to punish some public wrong or heinous misdemeanor in the defendant. It is grounded on no writ under seal, but merely on the intimation of the king's officer, the attorneygeneral, who "gives the court to understand and be informed of" the matter in question: upon which the party is put to answer, and trial is had, as in suits between subject and subject. The most usual informations are those of intrusion and debt: intrusion, for any trespass committed on the lands of the crown, (n) as by entering thereon without title, holding over after a lease is determined, taking the profits, cutting down timber, or the like; and debt, upon any contract for moneys due to the king, or for any forfeiture due to the crown upon the breach of a penal statute. This is most commonly used to recover forfeitures occasioned by transgressing those laws which are enacted for the establishment *and support of the revenue; others, which re[*262] gard mere matters of police and public convenience, being usually left to be enforced by common informers, in the qui tam informations or actions, of which we have formerly spoken. (o) But after the attorney-general has informed upon the breach of a penal law, no other information can be received. (p) There is also an information in rem, when any goods are supposed to become the property of the crown, and no man appears to claim them, or to dispute the title of the king. As anciently in the case of treasure-trove, wrecks, waifs, and estrays, seized by the king's officer for his use. Upon such (d) Finch, L. 324. (e) Stat. 31 Edw. III, c. 13. 86 Edw. III, c. 13. 2 and 3 Edw. VI, c. 8. (f) Law of Nisi Prius, 214, 21E. See book II, c. 21. (h) Dyer, 198. (i) 3 Lev. 220. 4 Inst. 88. (k) 2 Ventr. 344. Bro. Abr. tit. scire facias, 69, 185. (m) Moor. 375. (n) Cro. Jac. 212. ì Leon. 48. Savil. 49. (p) Hardr. 201. (0) See page 162, (3) This remedy is still retained, and is resorted to in the United States; the writ generally issuing from the highest court of law in the state. See in general Tidd. Pr., 1090, et seq. seizure, an information was usually filed in the king's exchequer, and thereupon a proclamation was made for the owner (if any) to come in and claim the effects; and at the same time there issued a commission of appraisement to value the goods in the officer's hands; after the return of which, and a second proclamation had, if no claimant appeared, the goods were supposed derelict, and condemned to the use of the crown. (g) And, when, in later times, forfeitures of the goods themselves, as well as personal penalties on the parties, were inflicted by act of parliament for transgressions against the laws of the customs and excise, the same process was adopted in order to secure such forfeited goods for the public use, though the offender himself had escaped the reach of justice. 5. A writ of quo warranto is in the nature of a writ of right for the king, against him who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim, in order to determine the right. (r) It lies also in case of non-user or long neglect of a franchise, or misuser or abuse of it; being a writ commanding the defendant to show by what warrant he exercises such a franchise, having never had any grant of it, or having forfeited it by neglect or abuse. This was originally returnable before the king's justices at Westminster; (8) but afterwards only *before the [*263] justices in eyre, by virtue of the statutes of quo warranto, 6 Edw. I, c. 1, and 18 Edw. I, st. 2; (t) but since those justices have given place to the king's temporary commissioners of assize, the judges on the several circuits, this branch of the statutes hath lost its effect; (u) and writs of quo warranto (if brought at all) must now be prosecuted and determined before the king's justices at Westminster. And in case of judgment for the defendant, he shall have an allowance of his franchise; but in case of judgment for the king, for that the party is entitled to no such franchise, or hath disused or abused it, the franchise is either seized into the king's hands, to be granted out again to whomever he shall please; or, if it be not such a franchise as may subsist in the hands of the crown, there is merely judgment of ouster, to turn out the party who usurped it. (2) The judgment on a writ of quo warranto (being in the nature of a writ of right) is final and conclusive, even against the crown. (2) Which, together with the length of its process, probably occasioned that disuse into which it is now fallen, and introduced a more modern method of prosecution, by information filed in the court of king's bench by the attorney-general, in the nature of a writ of quo warranto; wherein the process is speedier, and the judgment not quite so decisive. This is properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the crown; but hath long been applied to the mere purposes of trying the civil right, seizing the franchise or ousting the wrongful possessor; the fine being nominal only. During the violent proceedings that took place in the latter end of the reign of King Charles the Second, it was, among other things, thought expedient to new-model most of the corporation-towns in the kingdom; for which purpose many of those *bodies were persuaded to surrender their charters, and informations in the nature of quo warranto were brought against [*264] others, upon a supposed, or frequently a real, forfeiture of their franchises by neglect or abuse of them. And the consequence was, that the liberties of most of them were seized into the hands of the king, who granted them fresh charters with such alterations as were thought expedient; and, during their state of anarchy, the crown named all their magistrates. This exertion of power, though perhaps in summo jure it was for the most part strictly legal, gave a great and just alarm; the new-modelling of all corporations being a very large Gilb. Hist. of Exch. c. 13. VOL. II.-19 Finch, L. 322. 2 Inst. 282. (t) 2 Inst. 498. Rast. Entr. 540. (u) 2 Inst. 498, (a) 1 Sid. 86. 2 Show. 47. 12 Mod. 225. 145 stride towards establishing arbitrary power; and, therefore, it was thought necessary, at the revolution, to bridle this branch of the prerogative, at least so far as regarded the metropolis, by statute 2 W. and M. c. 8, which enacts that the franchises of the city of London shall never hereafter be seized or forejudged for any forfeiture or misdemeanor whatsoever. This proceeding is, however, now applied to the decision of corporation disputes between party and party, without any intervention of the prerogative by virtue of the statute 9 Ann. c. 20, which permits an information, in nature of quo warranto, to be brought with leave of the court, at the relation of any person desiring to prosecute the same (who is then styled the relator), against any person usurping, intruding into, or unlawfully holding any franchise or office in any city, borough, or town corporate; provides for its speedy determination; and directs that, if the defendant be convicted, judgment of ouster (as well as a fine) may be given against him, and that the relator shall pay or receive costs according to the event of the suit. (4) 6. The writ of mandamus (y) is also made by the same satute, 9 Ann. c. 20, a most full and effectual remedy, in the first place, for refusal of admission where a person is entitled to an office or place in any such corporation; and, secondly, for wrongful removal, when a person is legally possessed. [*265] *These are injuries, for which, though redress for the party interested may be had by assize, or other means, yet as the franchises concern the public, and may affect the administration of justice, this prerogative writ also issues from the court of king's bench; commanding, upon good cause shown to the court, the party complaining to be admitted or restored to his office. And the statute requires, that a return be immediately made to the first writ of mandamus; which return may be pleaded to or traversed by the prosecutor, and his antagonist may reply, take issue, or demur, and the same proceedings may be had, as if an action on the case had been brought, for making a false return; and, after judgment obtained for the prosecutor, he shall have a peremptory writ of mandamus to compel his admission or restitution; which latter (in case of an action) is effected by a writ of restitution. (z) So that now the writ of mandamus, in cases within this statute, is in the nature of an action; whereupon the party applying and succeeding may be entitled to costs, in case it be the franchise of a citizen, burgess, or freeman; (a) and also, in general, a writ of error may be had thereupon. (b) This writ of mandamus may also be issued, in pursuance of the statute 11 Geo. I, c. 4, in case within the regular time no election shall be made of the mayor or other chief officer of any city, borough, or town corporate, or (being made) it shall afterwards become void; requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrates so respectively chosen. (5) We have now gone through the whole circle of civil injuries and the redress which the laws of England have anxiously provided for each. In which the student cannot but observe that the main difficulty which attends their discussion arises from their great variety, which is apt at our first acquaintance to (y) See page 110. (s) 11 Rep. 79. (a) Stat. 12 Geo. III, c. 21. (b) 1 P. Wms. 351. (4) In the United States the proceeding to try an alleged usurpation of an office or franchise is by an information in the nature of a quo warranto, or some statutory substitute to which the same principles are applicable. The books of practice in the several states will give the proceedings. See also High on Extraordinary Remedies. In Howell's State Trials, vol. 8, p. 1039, et seq., will be found the proceedings in the quo warranto cases against the city of London and other corporations in the time of Charles II, which are referred to in the text. (5) In the United States the writ of mandamus is a common remedy where a party is entitled to some specific right which is withheld from him, and for the deprivation of which no other appropriate and adequate remedy exists. Mr. High in his treatise on Extraordinary Remedies deals with this subject, and collects the authorities. |