440
Cases ruled and adjudged in the
1793.
Lord C. Baron Comyns in his digest. I shall, therefore, extract some of them, as he appears to have taken uncommon pains to collect all the material learning on the subject; and indeed is said to have expended several hundred pounds in the procuring of records relative to that case. Hargrave's preface to the case of the Bankers.
After citing many authorities, Lord Somers proceeds thus:—“By all these authorities, and by many others, which I could cite, both ancient and modern, it is plain, that if the subject was to recover a rent, or annuity, or other charge from the crown; whether it was a rent or annuity, originally granted by the King; or issuing out of lands, which by subsequent title came to be in the King’s hands; in all cases the remedy to come at it was by petition to the person of the King: and no other method can be shewn to have been practiced at common law. Indeed I take it to be generally true, that in all cafes 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, where the subject comes as a Plaintiff. For, as I said before, 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 the nature of a Defendant; and is admitted to interplead in the case with the King in defence of his title, which otherwise would be defeated by finding the office. And to shew that this was so, I would take notice of several instances. That, in cases of debts owing by the crown, the subject’s remedy was by Petition, appears by Aynesham’s case, Ryley, 251. which is a petition for £19. due for work done at Carnarvon castle. So Ryley 251. The executors of John Estratling petition for £132. due to the testator for wages. The answer is remarkable; for there is a latitude taken, which will very well agree with the notion that is taken up in this case: Habeant bre. de liberate in Conc. thes. & camerar. de £32. in partem solutionis. So the case of Yerward de Galeys, for £56. Ryley 414. In like manner in the same book 253. 33. Ed. I. several parties sue by petition for money and goods taken for the King’s use; and also for wages due to them; and for debts owing to them by the King. The answer is, Rex ordinavit per concilium thesaurarii & baronum de scaccario. quod satisfiet iis quam citius fieri poterit; ita quod contertos se tenebunt. And this is an answer given to a petition presented to the King in Parliament; and therefore we have reason to conclude it to be warranted by law. They must be content, and they shall be paid, quam citius fieri poterit. The parties, in these cases, first go to the King by petition: it is by him they are sent to the Exchequer; and it is by writ under the great seal, that the Exchequer is impowered to act. Nor can
any
