or in right of the Crown of this realm, shall be deemed and taken to be personal estate and effects of his Majesty and his successors respectively, subject to disposition by last will and testament; and that such last will and testament shall be in writing, under the sign manual of his Majesty and his successors respectively, or otherwise shall not be valid; and all and singular the personal estate and effects whereof or whereto his Majesty or any of his successors shall be possessed or entitled at the time of his and their respective demises, subject to such testamentary disposition as aforesaid, shall be liable to the payment of all such debts as shall be properly payable out of his or their privy purse; and that, subject thereto, the same personal estate and effects of his Majesty and his successors respectively, or so much thereof respectively as shall not be given or bequeathed, or disposed of as aforesaid, shall go in such and the same manner on the demise of his Majesty and his successors respectively, as the same would have gone if this Act had not been made.

CHAP. XII.

Of the Prerogative with respect to judicial Remedies and Proceedings at the Suit of the Crown.

THOUGH justice flows from the King, as its fountain, he cannot administer it personally, or authorize any deviation from the laws. The first principles of equity forbid that any one should be judge in his own cause; which may be one reason that the constitution has, by an indiscriminate dictate, deprived the Crown of the power of personally interfering with the administration of justice. If this were not the case, the prerogative, instead of being in fact subservient to, would be above the laws, and the property of the subject would be defenceless.

There are certain substantial and important peculiarities in favor of the King, with respect to legal proceedings, which will be here mentioned; others, of less importance, will be incidentally stated in the course of this and the following chap

ter. Extraordinary remedies are assigned to the King, because, as Lord Coke observes,' Thesaurus Regis est fundamentum belli et firmamentum pacis (a).'

In the first place, though his subjects are, in many instances, under the necessity of suing in particular courts, the King has the undoubted privilege of suing in any court he pleases (b). He may bring a Quare Impedit, or writ of right, or of escheat, in B. R., and may have a Quare Impedit in B. R., though there have been a recovery in C. B. (c). The Crown possesses also the power of causing suits in other courts to be removed into the Court of Exchequer, where the revenue is concerned in the event of the proceeding, or the action touches the profit of the King, however remotely, and though the King be not a party thereto (d). And an account with the King can only be enforced in this his court of revenue (e). There can, however, be no doubt that the King may waive this prerogative, and suffer his rights and interests to be discussed in actions between third parties, out of the Exchequer (f). It seems, also, that where a mere equitable question is raised, Chancery is the better forum to entertain it, though the King be interested (g). Though it has been truly said (h), that "for any thing which toucheth the King, and may turn to his advantage to hasten the King's business, the Exchequer hath jurisdiction over it, were it a thing spiritual or temporal." Wherever also the King's title be clearly elicited, even in actions between third parties, the Court may, ex-officio, give judgment for the Crown thereon (i). And the Attorney-General, or other proper officer of the Crown, is always made a party in any cause in Chancery, &c. in which the King's rights are or may be called in question (k).

The King is also supposed to be always present in court,

(a) Co. Lit. 131, b.

(b) 4 Inst. 17. Plowd. 243. Rol. R. 290. Finch, L. 84. Fortescue, R. 101. (c) 1 Bla. Rep. 131, 2.

(d) Parker, 143. Anstr. 205, 214. 1 Bla. R. 131. 1 Chitty's R. 440. See the excellent and luminous judgment of the Court, in Anstr. See further Manning's Pr. 161. Semb. Exchequer may revise judgments in B. R. or C. B. if King interested therein. Ibid. 624.

(e) 2 Atk. 56. 2 Sch. and Lef. 618. (f) 1 Bla. Rep. 132.

(g) Hardr. 488. 2 Vez. sen. 448, per Ld. Hardwicke. 1 Bla. Rep. 131. 3 Atk. 171.

(h) Godb. 291. 16 Vin. Ab. 520. (i) 2 Manning's Pr. 619. 5 Bac. Ab. 570.

(k) Ridgw. Cas. Temp. Hardw. 322. 2 Vez. sen. 445, 448. 2 Sch. and Lef. 618. In the Admiralty; 3 Price's R.97.

and,

and, therefore, cannot be nonsuit, though the Attorney-General may enter a non vult prosequi (a); and his Majesty is not said to appear by his Attorney (b).

The modes of redress which the Crown may adopt against a subject are-1st, by the usual common law actions; 2, by Inquisition, or Inquest of Office, and under this head, we will consider extents in chief and in aid, and the writ of diem clausit extremum; 3, by scire facias, to repeal grants, &c. ; 4, by information of intrusion or debt and in rem; 5, by quo warranto; 6, by mandamus.

1. The general rule is, that the King may waive his prerogative remedies, and adopt such as are assigned to his subjects. He may maintain the usual common law actions, as trespass quare clausum fregit, or for taking his goods (c). The only exception seems to be in the case of actions, which suppose an eviction or disseisin, as an assize, or, it seems, an action of ejectment (d). The King cannot maintain such actions, they being inconsistent with his royal dignity, and contradictory to the fiction of law, that the King cannot be dispossessed of property once vested in him (e). But the King may maintain a quare impedit, which supposes the claimant's possession (ƒ), and might also maintain a writ of ravishment of ward (g). And though the King chuse a common law action, he may, by virtue of the prerogative we have just noticed, commence it in any court (h).

Where the King proceeds by suit at common law, and another person is interested with him, it seems, that the action may be brought in the name of the King and such common person; as, "if A. is bound by a written obligation in 100%. to the King and his customers,' if the 1007. be not paid, the King and the customers ought to bring their action upon the said obligation jointly, in the name of the King and the customers:

(a) Co. Lit. 139. Finch, L. 81, 2. 2 Atk. 302. On prosecutions in the colonies, ante, ch. 3.

(b) Finch, L. 81. 1 Bla. Com. 270. (c) Thel. Dig. 1. 1. c. 3. 1 Rol. Ab. 373. Bro. Ab. tit. Prerogative, pl. 130. F. N. B. 90. 16 Vin. Ab. 537. tit. Prerogative, Q. pl. 8. As to a distress at the suit of the King; see ante, ch. 11. s. 1.

(d) Bro. Ab. tit. Prerogative, pl. 89. Staundf. Prærog. Regis, 56, b. ch. 18. Anstr. R. 215. 10 East, 106, 7. Ejectment on the demise of the Crown, 12 East, 96.

(e) 3 Bla. Com. 257.
(ƒ) F. N. B. 32.

(g) Staundf. Prærog. Regis, 56, b.

ch. 18.

(h) 3 Bla. Com. 257.

By

By all the Justices in the Exchequer, lecta quæ scripto nititur a scripto variare non debet (a)." And this distinction has been drawn, that where the King has part of a thing, ratione prærogativa, there, if it be entire, he shall have the whole; as if one of several obligees be felo de se, or outlawed, the King or his assignee shall have the action sole; but if he has title to a parcel or part, by another, there the King may join, as if an obligation be made to a customer for customs, &c. there the King and the customer shall join (b). And, it seems, that the King and a subject may join in a presentment, or quare impedit (c). Instances of the King and a subject joining are to be met with (d); and in one case the King and his chaplain joined in an action for trespass and contempt done in the King's palace, and in presence of him and his justices (e). In cases of this nature the writ may also abate for the subject, and stand for the King (ƒ).

The law having provided more efficacious and peculiar remedies in favor of the Crown, it is very unusual for it to proceed by the usual common law actions.

2. Proceedings under an inquisition or inquest of office, or an office, as it is termed in the old books, is a peculiar prerogative remedy for the benefit of the Crown, which was formerly much in use, and is still resorted to on many occasions. It is an inquiry made (through the medium of an indefinite number of jurors summoned by the sheriff (g)); 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 (h).

(a) Jenk. Cent. 65, pl. 22. Fitzh. Ab. tit. Joinder in Action, 3. Vin. Ab. tit. Prerogative, Q. 2.

(b) 8 Edw. 4. 4, a. 246. 19 Hen. 6. 47, a. 10 Hen. 4. 3. Dyer, 95. F. N. B. 32. note (c).

(c) F. N. B. 32. 16 Vin. Ab. 535. tit. Prerogative, Q. 3.

(d) Ibid.

(e) Bro. Abr. tit. Joinder in Action, pl. 56. tit. Prerog. pl. 48: cites 27 Ass. 49.

(S) Bro. Abr. tit. Prerog. pl. 100:

cites 35 Edw. 3. and Fitzh. Ab. Briefs, 729.

66

(g) Finch, L. 323, 4, 5. Com. Dig. Viscount, C. 5. Prerogative, D. 55. Gilb. Excheq. 109. But in the Addenda, 2 Manning's Pr. 635, is the following note : Inquisitio evacuata in comitatu Lincolniæ quia fuerunt tantum 11 Juratores, Recorda, Hil. 13. H. 6. Jones, IER Memoranda, tit. Inquisitio." There should be several inquests of lands in different counties, &c. Staundf. Præ. Regis, cap. 176. fol. 51.

(h) Ibid.

These

These offices are of two sorts, one of entitling and another of instruction. The former issued out of Chancery in cases where an office is necessary to ENTITLE the King; and is under the great seal, as the King cannot take but by the matter of record: the latter issued out of the Exchequer Court under its seal; or if the land were under 5l. in value, was taken by the King's escheator, &c. of his own accord and virtute officii; in cases where an office was not necessary to entitle the King, for the better instruction of the officer before seizure, and in favor of the subject that hasty measures right not be adopted (a). This inquiry is an office or presentment: an office which finds matter to entitle the King to some possession, for an office is a title for the King (6). This is an admirably constructed barrier between the Crown and the subject: the object evidently is to support that fundamental principle of English law, that the King may not enter upon or seize any man's possessions upon bare surmises, without the intervention of a jury (c). And the object is attained by the opportunity afforded the subject of interpleading with the Crown by traversing its title, or setting up a better in a monstrans de droit or petition of right, which will be considered in the next chapter. For in cases where an office is a necessary preliminary, the King and his officers cannot seize the property without it, nor has the King a title for many purposes (d). At present our inquiry will be, 1st, as to offices with respect to real property; and 2dly, with respect to goods and debts; under which head also will be considered the law of extents, and some general observations on the law of offices will be submitted to the reader's attention.

1. With respect to lands, 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 seised, who was his heir, and of what age, in order to entitle the King to his marriage, wardship, relief, primer

(a) Gilb. Excheq. 109, 13, 4. 16 Vin. Ab. 79. Office, B. 12 East, 102.

(b) Finch, L. 324. That is a finding er evidence of a title which enables him to sue. An inquisition of attainder is only to inform, and does not enti

tle the Crown to any right. 2 Atk. 399. post, 252.

(c) Magna Chart. 9 Hen. 3. 29. 2 Inst. 46. Gilb. Excheq. 132. Hob. 347. 1 Bla. Rep. 130. 3 Bla. Com. 259. (d) 12 East, 96.

seisin,