444
Cases ruled and adjudged in the
1793.
to the parties): The usual reference appears to have ·been to the Treasurer and Barons, commanding them to do justice: Sometimes a writ under the great seal was directed to be issued to them for that purpose: Sometimes a writ from the Chancery directing payment of money immediately, without taking notice of the Barons. And other varieties appear to have taken place. See Hargrave’s case of the Bankers, p. 73, & seq. But in all cafes of petition of right, of whatever nature is the demand, I think it is clear beyond all doubt, that there must be some indorsement or order of the King himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace, and not on compulsion.
In a very late case in England, this point was incidentally discussed. The case I refer to, is the case of Macbeath against Haldimand, reported 1st. Durnford & East 172. The action was against the Defendant, for goods furnished by the Defendant’s order in Canada, when the Defendant was Governor of Quebec. The defence was, that the Plaintiff was employed by the Defendant in his official capacity, and not upon his personal credit, and that the goods being therefore furnished for the use of Government, and the Defendant not having undertaken personally to pay, he was not liable. This defence was set up at the trial on the plea of the general issue, and the Jury, by Judge Buller’s direction, found a verdict for the Defendant. Upon a motion for a new trial he reported particularly all the facts given in evidence, and said his opinion had been at the trial that the Plaintiff should he non-suited; “but the Plaintiff’s counsel appearing for their client, when he was called, he left the question to the Jury, telling them that they were bound to find for the Defendant in point of law. And upon their asking him whether, in the event of the Defendant not being liable, any other person was, he told them, that was no part of their consideration, but being willing to give them any information, he added, that he was of opinion that if the Plaintiff’s demands were just, his proper remedy was by a Petition of right to the crown. On which they found a verdict for the Defendant. The rule for granting a new trial was moved for, on the misdirection of two points. 1st. That the Defendant had by his own conduct made himself liable, which question should have been left to the Jury. 2dly. That the Plaintiff had no remedy against the crown by a Petition of right, on the supposition of which the Jury had been induced to give their verdict.” “Lord Mansfield, Chief Justice, now declared, that the Court did not feel it necessary for them to give any opinion on the second ground. His Lordship said that great difference had arisen since the revolution with respect to the expenditure of the public money. Before that period, all the public supplies were given to the King, who in
his
