but when one sueth by petition. And note also, that in every petition whether it be sued in the parliament or elsewhere, or whether the lands remain in the King's hands, or not in the King's hands, but be granted over, yet writs of search shall be awarded to search the King's title ere the party shall interplead with the King. Also it appears (a), that upon a petition the King's patentee had aid of the King: it also appears that if the King be not entitled by any matter of record, but without any title do enter into my land whereby I sue by petition unto his Highness; that in this case no search shall be granted, because no title can be intended for the King in such case."

On the return of the inquisition, the Attorney-General may plead in bar or demur: and an issue of fact or law being joined, the merits may be discussed and determined by a jury (b), or the Court, as in ordinary cases between subject and subject.

If the subject recover lands, &c. the judgment follows as a matter of course; and the party need not sue to the King for the same (c). It is that "the hands of the Crown be removed, and possession restored to the petitioners :" whereby the King is immediately, by operation of law, out of possession (d). Indeed the amoveas manus or ouster le main is the end of every suit where a man comes to interplead with the King, for without that judgment the land will still remain in the King's possession (e). But in all judgments or decrees in equity against the King or respecting his rights and claims the clause "salvo jure domini regis" is always inserted, and is expressly required by the statute 2 and 3 E. 6. c. 8. s. 14. (f). But as the Admiralty Court proceeds in rem, the Crown is bound by a judicial sale of a vessel by order of that Court, though it had a prior title by forfeiture which was not discussed (g). If on the petition money be recovered, the writ of execution for the subject is directed to the treasurer and chamberlains (h). And it is said they are personally liable if

(a) 16 E. 4. f. 3. And see Rex v. Smith, Assig. Whitehall, Jones, IER, Addenda, tit. Excise, 2 Manning, Pr. 579, note s.

(b) As to the Venire, see post, 348, and sec. 3. div. 4.

(c) Staundf. Prerog. 82, b.

(d) 2 Inst. 695. Rast. Entr. 463. Finch, 459. 5 Bla. Com. 257. (e) Keilw. 158, a. post, 349. (f) Finch, L. 459, 460. (g) 3 Price, R. 97.

(h) Vid. Reg. Brev. 193. 382, 459. 2 Manning, Pr. 579.

Plowd.

they

they do not satisfy the suppliant's demand out of the first monies that come to their hands by virtue of their office (a).

The suppliant may be nonsuited though a verdict be pressed for (b). It has been said that this suit being as it were in the nature of a writ of right the subject cannot have a fresh petition if he be nonsuited (c); but the law seems otherwise on this point (d).

On the subject of the judgment of ouster le main,'' amoveas manus,' or 'that the King's hands be amoved,' Staundford (e) has the following observations. "Ouster le main is the judgment that is given for him that tendereth a traverse, or sueth a monstrans de droit, or petition; for when it appeareth upon the matter discussed, that the King hath no right or title to the thing he seized, then judgment shall be given in the Chancery, that the King's hands be amoved: and thereupon amoveas manum shall be awarded to the escheator, which countervails as much as if the judgment were given that he should have his lands. And this judgment sometimes is given in the King's Bench, and not in the Chancery; and that is in case where the parties descend to an issue, then for the trial thereof, they of the Chancery must award a venire facias returnable in the King's Bench at a certain day, at which day notwithstanding that the sheriff return not the writ yet the alias venire facias shall not be awarded out of the Chancery, but of the King's Bench: for there and no where else it is recorded quod vicecomes non misit breve. And when the issue is found for the party they of the King's Bench shall give judgment and award an ouster le main without suing for the same in the Chancery. Also note that sometimes there goeth an ouster le main as well to the King's patentee as to the escheator; and that is where the King hath granted the thing that be seized to any other. But notwithstanding that there go such writs of amoveas manum both to the escheator and to the party; yet the King is out of possession as soon as judgment is given in the Chancery; not

(a) Vid. Reg. Brev. 193. Plowd. 382, 459. 2 Manning, Pr. 579. F. N. B. 121.

(b) 11 Hen. 4. 52. pl. 30. Fitz. Petition, 2, 11, 17

(c) H. 11 Hen. 4. fol. 52. and M. 3 Hen. 7. fol. 14. Staundf. Prærog. Regis, 76, a. Semb. also a nonsuit on a

monstrans de droit is peremptory. Hen. 6. 12. pl. 9.

(d) See 4 Hen. 6. 13. pl. 9. Bro. Ab. Nonsuit, 12. And see Fitz. Petition, 11, 16, 17. M. 17 H. 7. fol. 13. pl.19. cited 2 Manning, 579. 1 Vez. 454, 5. (e) Prærog. Regis, c. 24. fol. 77, b.

forcing

forcing whether any of these writs be awarded or not, either to the escheator or to the party: and thereupon the party for whom judgment is given may ouster forthwith into the lands and shall be said no intruder (a). And the reason of it is because the judgment tieth not the King to the delivery of the possession, but only to leave his hands of the possession. And note, that if a diem clausit (b) come to the escheator, he by virtue of that writ, before he make any inquiry, may seize the land for the King's behoof; which after he hath once seized, if after by office no title be found for the King, then the party that ought to have again the land may sue for the same in Chancery where the office is returned: and then amoveas manum shall be awarded." "In times past (c), men have sued ouster le main upon a seisin made for the King, although the office found afterwards did not entitle his Highness. Howbeit at this day it is not so used, for the escheator will not seize, unless there be an office found, although he might lawfully do it by the words of the writ diem clausit, which usage I do nothing dislike considering the great trouble it avoideth, that might else ensue to the King's subjects. And note, that in all cases where the King is seized, or in possession of the land by office or any other matter of record, his highness' seizin cannot be delivered out of him until such time as an ouster le main be sued (d). As if the King be seized by office of the land of any idiots, or for year day and waste of lands of a person attainted; in these cases he that should have these lands after the King's title determined, must sue an ouster le main; otherwise it is where the King is not seized of the land but only entitled to the profits: as of the lands of him that is outlawed in a personal action, or a clerk convicted, or such like; there need no ouster le main to be sued. And if the lands which are seized into the King's hands be holden jointly by many, yet every one of these by himself may sue his ouster le main of his own part without his companions."

Where the ouster le main or proceedings thereon, are used by the subject recovering against the Crown, unduly, and contrary to law, or upon an office which in point of law is insuffi

(a) And see post, sec. 3. div. 5 and 6. Judgment and Execution on extent, &c. (b) Ante, 328.

(c) Staundf. Prerog. 78, b.
(d) Ante, 347.

cient for the party to have ouster le main, the King may reseize the lands without suing any process against the party; and is entitled to all the intermediate or mesne issues and profits (a). The subject who adopted such proceedings is also in that case to be treated and considered as an intruder upon the King's possession after office (b). But if the ouster le main is at the time on due process, and the King's title, though it existed before, did not appear till after the proceedings had by the subject, a scire facias is necessary to turn the subject out (c).

Before the statute 2 and 3 Ed. 6. c. 8. persons were still liable to be precluded of their rights, by the untrue finding of offices. As, for instance, persons holding terms for years or by copy of Court-roll, were often put out of their possession by reason of inquisitions, or offices found before escheators, commissioners and others, entitling the King to the wardship or custody of lands, or upon attainders for treason, felony or otherwise; and this, because such terms for years, and interests in copyhold were not found: after which they had no remedy, during the King's possession, either by traverse or monstrans de droit, or otherwise; because such interests were only chattels in customary hold, and not freehold. In like manner persons having any rent, common, office, fee or other profit apprendre, if such interest were not found in the office entitling the King, they had no remedy by traverse or other speedy means, without great and excessive charges, during the King's right therein. To redress these hardships on the subject, it is declared by the statute 2 and 3 E. 6. c. 8. that all persons in the above cases shall enjoy their rights and interests, the same as if no office or inquisition had been found, or as they might if their interest had been regularly found at the same time in such inquisition or office (d). Lord Coke observes (e) that "this being a beneficial law, the estates of tenant by statute staple, merchant or elegit, and executors that hold lands for

payment of debts, are taken to be within the benefit of the clause."

The law respecting grants by the Crown of lands seized, before office found, and the right of the claimant to have a lease of such lands, have already been noticed (a).

SECT. 2.-The monstrans de droit, manifestation or plea of right, is another medium of redress for the subject against the Crown. As before observed, the petition' to the King appears to be the only common law remedy against him; and, though the contrary has been asserted (b), there can be little doubt that neither the monstrans de droit or the traverse of office (as to lands), was sustainable till the statute 36 Edw. 3. c. 13. (c).

By that statute (d) it is provided, that if there be any man that maketh claim or challenge to the lands seized, the escheator do send the inquest into the Chancery within the month after the land so seized, and that a writ be delivered to him to certify the cause of his seisin into the Chancery, and there shall the cause be heard without delay to traverse the office, or otherwise to shew his right, and from thence sent before the King to make a final discussion, without attending other commandments. And in case that any come before the Chancellor and shew his right, he shall have a lease of the lands, &c. (e).

The monstrans de droit, which, in cases where it lies, supersedes the proceeding by petition, may be brought either in the Petty Bag Office in Chancery (f), or in the Office of Pleas in the Exchequer (g); except in particular cases, as in Lady Broughton's case (h), where the monstrans de droit was brought

(a) Ante, 253.

(b) H. 9 E. 4. fol. 52. 13 E. 4. fol. 8. 4 Co. 55, a. Skin. 609. Com. Dig. Prerog. D. 81. 3 Bla. Com. 256.

(c) See Staundf. Prærog. Regis, 70, b. 60, a. 1 Anders. 181. 11 St. Tr. 154. 5 Bac. Ab. 571. Prerog. E. 7.

(d) And see 14 E. 3. st. 1. c. 13. 8 H. 6. c. 10.

(e) See note (a).

(f) In such case it seems the proceedings are not enrolled as in other

Courts, but remain upon files in the office. Co. Entr. 405. If there be a monstrans de droit upon an inquisition in Chancery, and upon that the Attorney-General demurs, there it shall be delivered into B. R. by the hands of the Chancellor, and there determined. Salk. 448.

(g) 4 Co. R. 57, a. Godb. 300. pl. 417. Skin. 609. Com. Dig. Prerog. D. (D. 82.) 3 Bla. Com. 256.

(h) 1 Skin. 610.