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by writ of entry, aflise, ejectment, debt, or trespass, (as the case may happen) which it furnishes to the owners of lay property. Yet he shall not have a writ of right, nor such other similar writs as are grounded upon the mere right; because he hath not in him the entire fee and right : but he is entitled to a special remedy called a writ of juris utrun, which is sometimes stiled the parson's writ of right k, being the highest writ which he can have'. This lies for a [ 253 ] parson or a prebendary at common law, and for a vicar by statute 1st Edw. III. c. 17. and is in the nature of an allise, to inquire whether the tenements in question are frankalmoign belonging to the church of the demandant, or else the lay fee of the tenant m. And thereby the demandant may recover lands and tenements, belonging to the church, which were aliened by the predecessor; or of which he was discised; or which were recovered against him by verdict, confession, or default, without praying in aid of the patron and ordinary ; or on which any person has intruded since the predecessor's death". But since the restraining statute of 13 Eliz. c. 10. where hy the alienation of the predeceffor, or a recovery suffered by him of the lands of the church, is declared to be absolutely void, this remedy is of very little use, unless where the parson himself has been deforced for more than iwenty years o; for the successor ato any competent time after his accellion to the benefice, may enter, or bring an ejectment.

iF, N. B. 49. k Booth. 211. IF. N. B. 48.

m Registr. 32. . st. N. B. 48,49. • Boo:h. 221.

CHAPTER THE SEVENTEEN TH.

OF INJURIES PROCEEDING FROM,

OR AFFECTING, THE CROWN.

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T TAVING in the nine preceding chapters considered the 11 injuries, or private wrongs, that may be offered by one subject to another, all of which are redressed by the command and authority of the king, signified by his original writs returnable in his several courts of justice, which thence derive a jurisdiction of examining and determining the complaint; I proceed now to inquire into the mode of redressing those injuries to which the crown itself is a party: which injuries are either where the crown is the aggressor, and which therefore cannot without a folecism admit of the same kind of remedya; or else is the sufferer, and which then are usually remedied by peculiar forms of process, appropriated to the royal prerogative. In treating therefore of these, we will congder first, the manner of redressing those wrongs or injuries which a subject may suffer from the crown, and then of redressing those which the crown may receive from 4 subject.

1. That the king can do no wrong, is a necessary and fundamental principle of the English constitution : meaning only, as has formerly been observed", that, in the first place, whatever may be amiss in the conduct of public affairs is not

a Bro. Abr, t. petition, 12. . prerogativ, 2.

9

o Book I, ch. 7. pag. 243---246.

charge

chargeable personally on the king; nor is he, but his ministers, accountable for it to the people: and, secondly, that the prerogative of the crown extends not to do any injury; for, being created for the benefit of the people, it cannot be exérted to their prejudice c. Whenever therefore it happens, that, by misinformation or inadvertence, the crown hath been induced to invade the private rights of any of it's subjects, though no action will lie against the sovereign d, (for who shall command the king'?) yet the law hath furnished the subject with a decent and respectful mode of removing that invasion, by informing the king of the true state of the matter in dispute: and, as it presumes that to know of any injury and to redress it are inseparable in the royal breast, it then islues as of course in the king's own name, his orders to his judges to do justice to the party aggrieved.

The distance between the sovereign and his subjects is such, tha: it rarely can happen that any personal injury can immediately and directly proceed from the prince to any private man : and, as it can so seldom happen, the law in decency supposes that it never will or can happen at all; because it feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal perfon, by setting up some superior power with. authority to call him to account. The inconveniency therefore of a mischief that is barely poslible, is (as Mr. Locke has observed f) well recompensed by the peace of the public and fecurity of the government, in the person of the chief magistrate being set out of the reach of coercion. But injuries to the rights of property can scarcely be committed by the crown without the intervention of it's officers; for whom the law in matters of right entertains no respect or delicacy, but furnishes various methods of detecting the errors or misconduet of those agents, by whom the king has been deceived, and induced to do a temporary injustice. € Plɔwd. 487.

e Finch. L. 83. >> Jenkins. 78.

E on Gov. p. 2. $ 205.

THI

THE common law methods of obtaining poffeffion or refitution from the crown, of either real or personal property, are, 1. By petition de droit, or petition of right, which is said to owe it's original to king Edward the first &. 2. By nonfrans de droit, manifestation or plea of right: both of which may be preferred or prosecuted either in the chancery or exchequer b. The former is of use, where the king is in full poffeffion of any hereditaments or chartels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself; in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate': and then, upon this answer being endorsed or underwritten by the king, soit droit fait al partie, (let right be done to the partyj) a commillion shall issue to inquire of the truth of thię suggestion * ; after the return of which, the king's attorney is at liberty to plead in bar; and the merits shall be determined upon iflue or demurrer, as in suits between subject and subject. Thus, if a diffeisor of lands, which are holden of the crown, dies seised without any heir, whereby the king is prima facie entitled to the lands, and the poffefsion is cast on him either by inquest of office, or by act of law without any office found is now the disfeifee shall have remedy by petition of right, suggesting the title of the crown, and his own superior right before the diffeifin made'. But where the right of the party, as well as the right of the crown, appears upon record, there the party shall have monftrans de droit, which is putting in a claim of right grounded on facts already acknowleged and established, and praying the judgment of the court, whether upon those facts the king or the subject hath the right. As if, in the case before supposed, the whole special matter is found by an inquest of office, (as well the diffeisn, as the dying without any heir) the party grieved shall have monfrans de droit at the common law m. But as this seldom happens, and

& Bro. Abr. 1. prerog. 2 Fitz. Abr. j Stif. Tr. vi. 134. t. error. 8.

ke skin. 608. Raft. Entr. 461. Skin. 609.

| Bro. Abr. 1. petition. 20. 4 Rep. 58 į Fincb. L. 296.

m 4 Rep. 55.

the

the remedy by petition was extremely tedious and expensive, that by monftrans was much enlarged and rendered almost universal by several statutes, particularly 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. which also allow inquisitions of office to be traverseil or denied, wherever the right of a subject is concerned, except in a very few cases". These proceedirgs are had in the petty bag office in the court of chancery: and, if upon either of them the right be determined against the crown, the judgment is, quod manus domini regis amoveantur et poledio restituatur petenti, falto jure domini regis ; which last clause is always added to judgments against the king, to whom no laches is ever imputed, and whose right (till fome late statutes 9) was never defeated by any liniitation or length of time. And by such judgment the crown is instantly our of poffeffion'; fo that there needs not the indecent interposition of his own officers to transfer the se:fin from the king to the party aggrieved.

II. The methods of redressing such injuries as the crown may receive from the subject are,

1. By such usual common law actions, as are consistent with the royal prerogative and dignity. As therefore the king, by reason of his legal ubiquity, cannot be disleised or dispof. sessed of any real property which is once vested in him, he can maintain no action which supposes a difpoflession of the plaintiff; such as an allife or an ejectments: but he may bring a quare impedit', which always supposes the complainant to be feised or possessed of the advowson: and he may prosecute this writ, like every other by him brought, as well in the king's bench" as the common pleas, or in whatever court he pleases. So too, he may bring an action of trespass for taking away his goods; but such actions are not usual (though in strictness maintainable) for breaking his close, or other injury done upon his soil or possession w. It would be equally tedious

n Skin. 608.
°2 Inft. 695. Raft. Entr. 463.
p Finch. L. 460.
9 21 Jac. I. c. 2. 9 Geo. Ill. c. 16.

Fiach. L. 459.

s Bro Abr. 1. prerogative. 89. 'F. N. B. 32. * Dyverile de courtes. c. bank le roy. w Bro. Abr. t. prerog. 130. F.N.B.90. Year book. 4 Hen. IV. 4.

and

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