suffered to enter, mine entry is lawful, and no intrusion; or if the King grant over the lands to a stranger, then is my petition determined, and I may now enter or have my assize by order of the common law, against the said stranger, being the King's patentee (a). And a great difference is between this case and the case where the King is entitled by double matter of record (b) or such like; for in these (qu. 'latter') cases, notwithstanding the grant made over by his Highness of the lands to another, yet am I driven still to my petition to the King, and have no other remedy: but it is not so in this case (that is, when the King having no right, has granted away the property). And the reason of this diversity is, because that when his Highness seizeth by his absolute power, contrary to the order of his laws, although I have no remedy against him for it but by petition, for the dignity's sake of his person; yet, when the cause is removed, and a common person hath the possession, then is my assize (c) renewed; for now the patentee entered by his own wrong and intrusion, and not by any title that the King giveth him, for the King had never title or possession to give in that case, and therefore not like the other cases before, where the King hath the lands by the order of his laws: that is to say, by double matter of record, or such other like. Like law it is if I have a rent charge out of certain land, and the tenant of the land enfeoffeth the King by deed inrolled; now during the King's possession, I must sue by petition, but if his Highness enfeoff a stranger, I may distrain for my rent on the stranger; and so it is in all the cases before, where a man may have his traverse or monstrans de droit, if the lands be once out of the King's hands, the party then may have his remedy that the common law giveth him: for in all these cases the petition did lie only for the dignity of the King's person, and not for the right that his Majesty had to the possession of the thing. But if the King purchaseth lands holden of me, learn what remedy I may have for my seignory during the King's possession; for Wilby saith (d) that I have no remedy in that case, and if his Highness make a feoffment of these lands to hold of himself, yet I cannot distrain for my (a) 4 Ed. 4. f. 22. 24 Ed. 3. f. 65. 10 Ed. 3. f. 2. See ante, 339, note (e); that a wrong-doer cannot justify under the King's unfounded claim or com mand. (b) See ante, 341, note (b). (d) Assize, 124; 20 Ed. 3. seignory seignory like as I might do in the case of the rent charge before, because there cannot be two seignories of the same land, but am driven to my petition in this case; for the King upon this feoffment, by order of his laws, should have renewed the seignory in me: that is to say, to have made the feoffee to hold of me of whom it was held before. And so it hath been used always where his Highness hath lands by forfeiture of treason (a), holden of a common person, if he make a feoffinent of those lands it must be to be holden of those that they were holden of before. And so it is where the time is devolved to his Highness for a mortmain; but that is given by the statute. de religiosis. Also if the King disseise my tenant during this possession, I have no remedy for my seignory but only by petition and if the King enfeoff my tenant to hold of his Highness, yet have I no remedy for my seignory (b) but only by petition. But if one hold certain lands of me which are falsely found by office to be holden of the King in capite, and the King seizeth them, and enfeoffeth my tenant thereof to hold of his Highness; in this case I may now distrain for my seignory and am not out of possession. And the reason of the diversity is this, because that in the last case my seignory was never suspended, but evermore had its being, and that notwithstanding the office; for it did not appertain to me to traverse the office and discharge the tenure: but that matter was left to my tenant to do, and seeing he did not, he hath charged himself of a tenure by way of collusion to the King as well as to me: but it is not so in the other case. Also it is to be noted that if the King seize lands by title of wardship and make a feoffment thereof, in this case the heir need not sue his petition, but may have a scire facias to repeal the said letters patent, because the King was deceived in his grant. For there the King himself is in possession still till livery be made; so the heir there hath no cause to sue by petition, and the King is bound to deliver it unto him in whose right he seized." A petition seems also to be the only remedy where the King does not pay a debt, as an annuity or wages, &c. due from (a) Where an estate is forfeited to the King by attainder, &c. none can sue to the King by petition before office found, for till office found the estate is not vested in the King. Sir W. Jones, 78. (b) That is as against the King only in this case, quære. See ante, 342, and note (a). him (a), or in the case of unliquidated damages, occasioned by any breach of contract with the King himself; or in case the King, without any office, take or detain a subject's goods. A quare impedit against the King must also be by petition (b); and it seems to be the only legal remedy on the reversal of an outlawry, or an extent, &c. on error, where the monies have been accounted for in the Exchequer, and have reached the hands of the Crown, if the Court cannot interfere (c). 2dly. As to the mode of proceeding.-It is the very essence of the 'petition' that it should contain nothing of a mandatory nature. The petition is, however, substantially, as well as nominally, a petition of right, as the prayer of it is grantable, ex debito justitiæ; and Magna Charta says, "nulli vendemus, nulli negabimus, aut differemus justitiam vel rectum (d).” The petition must be carefully drawn up, and must state the whole of the title or titles, or claim of the Crown, "for if it be found by the writ of search, that any title of the King be omitted, the petition shall abate; and the reason of it is, because that if on this suit of petition the King take an issue with the party which is found against him, his highness then shall be concluded for evermore to claim by any of the points contained in the said petition (e)." And of course the plaintiff or suppliant must state his own title at length. Thus if a disseisor of lands, which are holden of the Crown, dies seized without any heirs, whereby the King is prima facie entitled to the lands (ƒ), and the possession is cast on him either by inquest of office, or by act of law without any office found; now the disseisee shall have remedy by petition of right, suggesting the title of the Crown, and his own superior right before the disseisin made (g). The petition may be to the King in Parliament, or in any (a) Lord Somers, Arg. 11 St. Trial 81, 85. Com. Dig. Prerog. D. 78. (b) 43 Ass. 272. pl. 21. H. 8. H. 4. fol. 21. 2 Manning's Pr. 579. (c) See Staundf. Prærog. Regis, 75, b. 76, a. Year Book, T. 34 H. 6. fol. 51. 2 Manning, Pr. 624. sed vide 1 H. 7. fol. 3. (d) See 2 Manning, 578. That Magna Charta binds the Crown, see (e) Per Settle, J. Year Book, 9 Ed. 4. fol. 51. Staundf. Prerog. 73, b. Finch L. 256. 3 Bla. Com. 256. (f) See however-12 East, 96. (g) Bro. Abr. tit. Petition, 20. 4 Rep. 58. Post, 352. of of the King's Courts of Record (a), and is usually in the treasurer's remembrancer's office (b). When the petition is sued in parliament, "it may, says Staundford (c), be enacted, and pass as an Act of Parliament, or else to be ordered in like manner as a petition that is sued out of the parliament which is in this manner. First, after the petition is indorsed it shall be delivered to the Chancellor of England, and then shall there be a commission (d) awarded out of the Chancery, to find the right or title of him that sueth the petition; which being found by inquest then he may interplead with the King and not before. And if upon the commission no title be found for the party but only for the King, yet the petition shall not abate, but the party shall have a new commission in that case, for the petition is but as void until the party's title be found by office, and is not to be said depending until that time (e). And note that when the petition is indorsed the party must follow and pursue the same according to the indorsement, or otherwise his suit is void; because the indorsement is his warrant therein. And therefore some petitions be indorsed and sent into K. B. or C. P. and not into Chancery, and that groweth upon a special conclusion in his petition, and a special indorsement upon the same, for the general conclusion is "que le roy ley face droit et reason" which is as much as if he had prayed restitution of that that he sueth for: and there, upon such a general conclusion, the indorsement is " soit droit fait al partie (f)", which ever is delivered unto the Chancellor as is declared. But if the conclusion in the petition be special, and the indorsement special, then they shall proceed according to the said special indorsement; as for an example, the King recovereth in a quare impedit, by default against one that was never sum (a) Staundf. Prærog. Regis, 72, b. Com. Dig. Prerogative, D. 80. (b) 2 Manning, Pr. 578, n. m. Ibid. Appendix, 253. Jones, IER, Memoranda, tit. Error. (c) Prærog. Regis, ch 22. fol. 72, b. to 74, a. And see Bro. Ab. tit. Petition. Fitz. tit. Traverse. 11 St. Tr. 149. 5 Bac. Ab. 572. tit. Prerog. E. 7. Com. Dig. Prerog. D. 80. (d) Rast. Entr. 461. The Commis sion is not necessary if the Attorney- (f) This is now the usual indorsement. Lord Somers, Arg. 11 St. Tr. 149. moned. moned. In this case the party that lost cannot have a writ of deceit until such time as he have sued the King by petition for the said writ; and if in his petition he conclude and pray that the King do him right generally, now the justices upon whom the recovery was had, cannot examine the deceit without an original writ directed unto them for that purpose; and yet before he obtained that writ his right shall be inquired of by commission: but if he conclude specially in his petition, that is to say, please his Highness to command the justices to proceed to the examination; which petition is endorsed accordingly, then may they do it without any such writ or commission to be sued (a). So ever the following and pursuing of the thing must be according to the indorsement; for however the conclusion in the petition be, the indorsement may be always as it shall please the King; and according to that the party must pursue it. And note that in every petition where the King hath granted the land over to another, a scire facias must be awarded against the patentee, like as it shall be where a traverse or monstrans de droit is tendered, which patentee if he have not the whole fee simple, but that there is a reversion in the King, or that the King is bound to warrant when he appeareth upon the scire facias, he may have a writ of search (6) to be awarded into the treasury, to search what they can find for the King's title (c). But query, if search shall be granted upon a traverse or monstrans de droit, because the statute of 14 E. 3. c. 13., that concerneth search, doth speak only but of a petition. But to that it may be said, that at the time of making of the statute there was no traverse given (d). And Skrene sayeth, that search shall not be granted (a) M. 10 H. 4. fol. 4. (b) See 2 and 3 Ed. 6. c. 8. s. 13. Where a petition disaffirms the King's possession, there ought to be four writs of search directed to the treasurer and chamberlain of the Exchequer ; but writs of search are not necessary, where the petition affirms the King's possession: as, upon a petition of a right of dower. Moor, R. 639. Co. Lit. 77, b. The writs of search issue upon the suggestion of the Attorney-General, that there are in the Treasury several records, charters, deeds, muniments, &c. touching the King's right to the estate in question. Rast. Entr. 462, a. Ld. Coke says, "Upon the petition there be four writs of search, and every one must have forty days before the serving." Co. Lit. 77, b. (c) H. 9 Ed. 4. fol. 51. (d) By the 2 and 3 Ed. 6. c. 8. s. 13. upon every traverse under that Act in lieu of the petition to which the party was put at common law, there shall be two writs of search instead of four, as on a petition. See Co. Lit. 77. b. but |