1846. ATTORNEY v. HALLETT. second plea alleged, that the locus in quo was the soil and freehold of her Majesty, and that the defendant, as the servant of her Majesty, entered and removed the fences. The fourth plea alleged, that the locus in quo was within the limits of the forest of Waltham, and that her Majesty was seised in fee, in right of her Crown, of, and in the forest of Waltham; that the locus in quo being wrongfully enclosed and fenced in, the defendant, as the servant of her Majesty, entered and pulled down the fences. The replication to the second and fourth pleas put in issue the title of the Crown. The defendant was under terms of pleading issuably, and taking short notice of trial for the next assizes. Under these circumstances, the Attorney General submitted, that he was entitled to a rule absolute to remove the cause into this Court as a matter of right, without any terms being imposed, upon his suggestion on the part of the Crown, that the interest of the Crown was in issue. Two days' notice of the motion having been given to the plaintiff, Montagu Chambers and Willes opposed the application. This is not a case to which the prerogative of the Crown applies. It is applicable only to cases of ejectment in respect of the lands of the Crown, or where an action is brought against an officer of the Crown, acting in the execution of his duty as a revenue or excise officer. Here the Queen's title or profit is not so directly in issue as to warrant the interference of the Court. The action is an ordinary one of trespass quare clausum fregit, between subject and subject, and does not in any way relate to the revenue of the Crown. If, indeed, the effect of this proceeding would be to eject the Crown, no doubt this Court would exercise its equitable jurisdiction (conceding that it still remains in matters of revenue) and grant an injunction to stay the proceedings. But there is no precedent for removing into this Court an action between two subjects, merely because the title of the Crown comes collaterally in issue. Besides, this Court has no peculiar jurisdiction over matters relating to the title of the Crown to land, though it is otherwise with respect to matters of revenue. [Pollock, C. B.-The Court can grant a trial at bar without affidavit, upon the mere statement of the Attorney General, that the Crown is interested. A motion to stay proceedings is not a prerogative application; there must be a rule to shew cause, but a motion to remove proceedings is different: that is a prerogative application which the Court is bound to grant upon the suggestion of the Attorney General, that a question is raised which affects the title or revenue of the Crown.] The Attorney General v. Kingston (a), is an authority to shew that there should be a rule to shew cause. It is true that a two days' notice was given of the intended application, but that is insufficient; it should have been, at least, a four days' notice. The very object of notice, is to enable the party to come prepared to meet the application, and it is submitted, that a two days' notice is not a reasonable time for that purpose. [Pollock, C. B.-There is certainly some question as to whether the notice should be a two days' notice or a four days' notice. On referring to my Brother Manning's book (b), I find it thus laid down: "The rule is absolute, in the first instance, but four days' notice of the intended application is given." The authority, however, which is there referred to, is an anonymous case in Anstruther, p. 205, where all that is said is "upon notice," without mentioning any time. The Queen's Remembrancer certifies to us, that the practice is two days' notice, that is one clear day.] Assuming the notice to be sufficient, the question is, whether the prerogative of the Crown applies to a case like the present; and it is submitted that there is no general prerogative in the Crown to remove a cause between subject and subject, whenever the title of the Crown happens to come incidentally in (a) 8 M. & W. 163; S. C. 1 Dowl. 358, N. S. 1846. ATTORNEY GENERAL v. HALLETT. 1846. ATTORNEY v. HALLETT. issue. It would be a great hardship, if a party, who brought an action for breaking and entering his close, without being aware that the defendant claimed any title or authority from the Crown, were to be told, perhaps, at the point of trial, that some question might arise affecting the title of the Crown, and that he must, therefore, commence proceedings de novo in the Court of Exchequer. [Pollock, C. B.—A plaintiff has a right to bring his action in any Court he pleases, but as soon as the Crown, in point of fact, asserts its title, and interposes to make itself a party to the cause, the case assumes a different aspect, and the Crown has a right to have the cause tried in the Court of Exchequer.] In a case like the present, the only prerogative of the Crown is to have a trial at the bar of the Court in which the action is depending, and where the Attorney General may watch the proceedings on the part of the Crown. It is said, that the title of the Crown is in issue, but that arises from the defendant's mode of pleading, which compelled the plaintiff to traverse the title as alleged. [Parke, B.-The case of Lamb v. Gunman (a), is an authority to shew that the practice has been to remove similar actions. That was an action of trespass, brought in the Court of Queen's Bench, for seizing a quantity of wine. The defendant justified, as servant to the Duke of Cleveland, the taking of two tuns of wine, for the duty of prisage under a grant of King Charles the Second to the duke's father; and that cause was removed into this Court. There is also a case in Hardres's Reports (b), where one "Hammond was outlawed at the suit of another person, and lands in his possession were extended; a third person that claimed a title to those lands, brought an action of trespass and ejectment for them; and pleaded to the inquisition, and an injunction was prayed for the King to stay proceedings at law, and it was denied, because although a person outlawed cannot after extent prevent or avoid the King's title by any alienation, as appears by the 11 Hen. 7, yet the (a) Parker, 143. (b) Page 176. outlawry gives no such privilege to the possession of a disseisor, but that the disseisee may enter and bring his ejectment; for by the outlawry the King has a title only to the profits, and no interest in the land. But it was ordered, that the plea to the inquisition should be tried first, and that the ejectment should be brought in this Court, because the King's revenue was concerned."] In those cases, questions were raised directly affecting the King's revenue. In Lamb v. Gunman, the defendant was a revenue officer, and the action was brought against him for seizing certain wines for duties due to the Crown, consequently the title of the Crown to the wine came directly in issue. In Hammond's case (a), there had been judgment. of outlawry, and it having been found, by inquest taken thereon, that certain lands belonged to the outlaw, a third party, who claimed title to the lands, came in and traversed the inquisition; so that in that case also, the traverse and result of the trial directly affected the interest of the Crown. In the present case it is otherwise, for a verdict and judgment for the plaintiff would not bind the Crown, who might, nevertheless, try its title in another proceeding. [Alderson, B.-That is the question. The proceeding here is in the nature of an injunction. Lord Chief Baron Eyre treats it as a proceeding in equity.] In the case of an ejectment it is so, because that action cannot be maintained in respect of land in possession of the Crown; but in the absence of authority the Court will not extend the prerogative to a case like the present, where the real question is not whether the locus in quo is the soil and freehold of the Crown, but whether the limits of the forest extend over the land where the fences were placed. [Alderson, B.—The issue on the fourth plea directly brings in question the title of the Crown. If there be any one issue upon which the Crown may interpose, that is enough to warrant an application to have the cause tried in this Court.] The defendant does not justify as an officer or servant of the (a) Hardr. 176. VOL. III. Y Y D. & L. 1846. ATTORNEY v. HALLETT. 1846. ATTORNEY v. HALLETT. Crown, but merely as a party acting under a forest license. |