in B. R. because the record of the conviction and seizure were there. The bill of manifestation of right or monstrans de droit recites the inquisition found for the King, and then shews the right of the party, which it offers to verify and concludes with praying judgment and an amoveas manus, and restitution of the lands and tenements, and of the profits from the time of taking the inquisition (a).

With respect to the instances in which this is the proper remedy, the most important rule appears to be this, that it is not maintainable where the subject's title is inconsistent with that found for the King by the inquisition (in which event a traverse is the proper course:) but only in cases in which the party in shewing his right is able to confess the prima facie title found for the King and yet to avoid it (b). As in the case before put (c) of a disseisor of lands holden of the Crown dying seized without issue, there on such primú facie title being found, and specially recited in an office for the King, the party really entitled may, though his title be not found (d), on confessing such prima facie claim of the King shew his superior right before the wrongful eviction by the deceased disseisor (e). So that this is the peculiar remedy where the King is entitled by office or other matter of record (which indeed is always necessary to entitle the subject to his monstrans de droit) that is traversable; but being true cannot be traversed (ƒ).

It is in all cases necessary for the subject to shew a title in himself: and, if he do not, it is immaterial that the King has no title (g).

At common law the subject could not in general have had a monstrans de droit if the King were entitled by double matter of record; that is, by two distinct records, each finding matter entitling the King to lands: as for instance in the case of an office finding an attaint, and that the offender was seized of lands; here the office and the attainder form two records (h). But even at common law the subject had his monstrans de droit in such case, if there were no such attainder in point of law,

or his title appeared by any record (a).

And by the statute 2 and 3 Ed. 6. c. 8. s. 7. it is enacted, "that where it is untruly founden by office or inquisition, that any person attainted of treason, felony or præmunire, is or shall be seised of any lands at the time of such treason, felony or offence committed or done, or any time after, whereunto any other person hath any just title or interest of any estate of freehold, that then in every such case every person grieved thereby shall have his or their traverse, or monstrance de droit to the same, without being driven to any petition of right, and like remedy and restitution upon his title found or judged for him therein, as hath been accustomed and used in other cases of traverse, although the King be in such case entitled to any such lands, by double matter of record."

If the Attorney-General confess the title of the party, or if he reply and afterwards confess, or if it be found for the party. by verdict or upon demurrer, the judgment is quod manus domini regis amoveantur (b), and that the party be restored to the possession of the premises with the appurtenances, together with the mesne profits from the time of the caption of the inquisition not answered to the Crown, salvo jure domini regis (c).

There is some contradiction in the books whether or not the subject on a monstrans de droit, or traverse of office, is to be considered in the nature of a plaintiff or defendant. The older books consider him in the nature of a plaintiff (d): and consequently that the Crown may plead in disability of his person (e), and that he may be nonsuited (f). This doctrine is however rendered extremely doubtful by subsequent authori

(a) Staundf. Præ. Regis, fol. 71, b. and 72, a. b.

(b) As to which and proceedings thereon, &c. see ante, 347, 8.

(c) Ante, 347. Co. Entr. 404, 406, b. Finch L. 459, 460. 2 Inst. 695. (d) 4 H. 6. 11. 4 Co. 57, a. 2 Salk. 448. Bull. N. P. 216. One reason is, that the suppliant on a petition is a plaintiff, (and he appears to be so,) and consequently, the party in a monstrans de droit or traverse, is so; such

remedies being given in lieu of the petition.

(e) Ibid. Y. B. 26 H. 8. 1.

(f) Ibid. Staundf. Præ. R. 68, b. 2 Manning, 581. where it is also laid down, "that the nonsuit is peremptory, 4 H. 6. 12. pl. 9, at least where issue has been joined. Semb. M. 7 H. 7. fol. 13. pl. 19. But after a nonsuit in a manifestation of right or traverse of office, the subject may sue by petition of right, 4 H. 6. 13."

ties, and the reasons urged therein (a) against it. The party assumes, and acts throughout on the face of the proceedings in the character of a defendant: he shews his right in the shape of a plea: the Attorney-General replies, and the subject when he takes the issue ponit se super patriam, as on the other hand, the Attorney-General in that case petit quod inquiratur per patriam. And Lord Somers in his argument on this subject (b) observed, "I take it to be generally true, that in all cases where the subject is in the nature of a plaintiff, to recover any thing from the King, his only remedy at.common law, is to sue by petition to the person of the King. I say, when the subject comes as a plaintiff. For, when upon a title found for the King by office, the subject comes in to traverse the King's title, or to shew his own right, he comes in in the nature of a defendant; and is admitted to interplead in that case with the King in defence of his title, which otherwise would be defeated by finding the office." And in another part he said explicitly: "in this sort of proceeding (viz. a monstrans de droit), the subject is in the nature of a defendant, and comes in and pleads to a title found for the King." The decision in Rex v. Roberts (c) is also to the same effect. In that case Roberts having traversed an inquisition whereby he was found a lunatic, the Attorney-General filed the common replication, and the proceedings being sent from the petty bag office to the King's Bench, the prosecutor of the commission made up the record and carried it down to trial. Upon which it was objected that the supposed lunatic was in the nature of a plaintiff; and therefore had the right to carry down the record. And his traverse is in the nature of a monstrans de droit (d). "To which it was answered and resolved by the Court, that he was properly considered as a defendant opposing the title found for the Crown, without setting up any title in himself; as he might do in a petition of right. And indeed it would be absurd to construe the liberty of traversing to give a power of delaying the Crown, which must be if the party is considered as having the common right of a plaintiff. It was

therefore held that the record was well made up and carried down by the prosecutor of the commission."

SECT. 3.—Of traverse of office, and herein of resisting

extents.

The traverse of office (a) was at common law a very contracted remedy. It only lay in the case of goods and chattels (b), or where the office did not give a seisin or possession of land to the King, but merely entitled him to an action (c) for the recovery of land; as for instance, in the case of an office finding that the King's tenant had done waste or collusively conveyed, &c. (d). It was not sustainable at common law, where the King was entitled to lands by office or by other matter of record, judicial or ministerial, however untrue (e). And it was a still more mischievous hardship on the subject, that at common law, only offices of instruction (ƒ) could be traversed (g). All these mischiefs are now however removed by several statutes (h), which gave a traverse (or monstrans de droit) in lieu of the proceeding by petition (i). So that at the present day, offices (k) may be traversed by any subject (1) claiming property seized by the Crown, whether the object be to recover land or not, and though the office be untrue; or the traverser have no record shewing his right, or in some cases, though the King be entitled by double matter of record, and the subject be not put out of possession by the escheator (m). Between subject and subject, mere prior possession is in general sufficient against a wrong-doer or person who cannot shew a better title (n). But in the case of a seizure of land by

common-law hardships it was intended to remedy and redress, in favour of various parties. Co. Lit. 77, b.

(i) Ante, 340.

(k) Traversable offices. Staundf. Pr. 67, a.

(1) See ante, 340, the statute 2 and 3 Ed. 6. c. 8. protecting copyhold terms, rent, &c. out of premises, though not mentioned in the office.

(m) And see Staundf. Pre. 63, a. et subseq. Com. Dig. Prerog. D. 83, 84. (n) 1 East, 244. See Mr. Adams's able work on Ejectments, Index, Title. the

the Crown, it is not sufficient for the subject traversing the office to rely on his own title or possession, however strong; but he must answer the King's title, as found by the office, and though the King have none and the office be untrue, yet if the traverser cannot shew a legal title, his prior possession will not avail, and the King may retain against him (a). But it seems an estate by disseisin is sufficient (b). The party traversing must also establish his title as stated in the traverse: if he cannot, it will not avail that he has in fact a good title (c).

"Also," says Staundford (d), "it is not sufficient to traverse one of the King's titles, but he must traverse them all: for though the King's title that he is seised by be found not good, yet if there be any other record, that makes the King a title, whereby he may retain the lands; the party must avoid also that title or else he gets no ouster le main. But learn if there, be no such record in esse or being, at the time of the traverse tendered; and hanging the plea upon the traverse, a new record, that is to say, an office is found, which entitleth the King, whether in this case the party shall be driven to traverse this office or not, ere he have his ouster le main. And it seems he shall not, for so he might be delayed of his possession infinitely by finding one office after another; wherefore this office found hanging the traverse, shall be accounted in law as though it had been found after the party had had his ouster le main; in which case then the party upon the first traverse found for him, shall be restrained to his possession by an ouster le main; and then after upon a scire facias, sued against him to shew why the land should not be reseised, upon this new office found for the King, he shall be received in that scire facias to traverse this new office. Howbeit this advantage he wins hereby, he then traverses with the King, keeping still his possession, where else he should traverse being still out of possession (e). Thus may ye see, when a man traverseth with the King, he may traverse all the King's titles that have then their being by matter of record, and is not bounden any further to answer for that time."

(a) Staundf. Præ. 63, a. 64, a. (b) Hardr. 230, 251, 2, 3. 2 Saunders, 3.

(c) Staundf. 63, a. 64, a.

(d) Prærog. Regis, 64, b.
(e) T. 11 Hen. 4. f. 80.

f. 8.

13 H. 4.

We