Rolt's petition of right was before the Act, and hence the old procedure was followed, although the bill may have been heard after the passing of the Act. He continues: "It seems to me there is nothing which in the least authorises the joining of a subject with the Queen as respondent to the petition itself." He ought, of course, to have referred to the exception which is provided for under sect. 5 of the Act, which has just been mentioned. In the case actually before him the joinder was obviously wrong. The suppliant had joined a military engineer with the Sovereign, and sought an order for an injunction and costs against him. This case certainly did not fall within sect. 5 of the Act.

In In re Gosman (1880), 15 Ch. D. 69; 17 Ch. D. 771; 49 L. J. Ch. 590; 50 L. J. Ch. 624, though the fact does not appear in the report, the Treasury Solicitor, to whom the Crown had assigned by warrant the leaseholds claimed by the suppliant, was joined with the Sovereign as third party. The principal answer was put in by the third party, and the Attorney-General in his answer merely put the suppliant to his proof, and claimed all such right and interest in the premises mentioned in the petition of right as he on behalf of Her Majesty should appear to have therein, and submitted the same to the Court, and prayed the Court to take care of the rights and interests of Her Majesty.

In Kinloch v. R., [1882] W. N. 164; [1884] W. N. 80, the Secretary of State for India was joined with the Sovereign. No objection was taken to this, and it was probably right, as falling within sect. 5, since the booty, in respect of which the claim was made, was in the hands of the Secretary of State.

In Windsor and Annapolis Rail. Co. v. R. (1886), 11 A. C. 607; 55 L. J. P. C. 41, a third party seems to have been properly joined, under a Canadian section corresponding to sect. 5.

As to the method by which a party improperly joined could bring his objection before the Court, Wickens, V.-C., in Kirk v. R. (1872), L. R. 14 Eq. 558, 563, doubted whether a demurrer would be the proper method, but, with all respect to the learned judge, who had special reasons for being familiar with prerogative practice, the author does not see why the point could not be raised by demurrer. There seems to be no reason, however, if the author's interpretation of sect. 7 of the Act is right (see below, p. 388), why the party should not apply to be struck out under Ord. XVI. r. 11.

If, however, the suppliant desires it, in a case not within sect. 5, he is still entitled to proceed under the cumbrous old procedure alluded to at p. 367, above, whereby a petition of right is lodged praying for leave to proceed in the Chancery Division against the

Attorney-General and other parties. It would, however, be much more desirable to proceed by petition of right, as far as the claim against the Crown was concerned, and institute a separate action against the individual. The two could then be heard together.

The Body of the Petition.

By sect. 1 of the Act the petition is to be addressed to His Majesty in the form or to the effect of the form in the Schedule (No. 1) annexed to the Act, and must state the christian and surname and usual place of abode of the suppliant and of his solicitor, if any, by whom the same is presented, and set forth with convenient certainty the facts entitling the suppliant to relief. "Relief" is defined by sect. 16 as comprehending every species of relief claimed or prayed for in the petition, whether a restitution of any incorporeal right, or a return of lands or chattels, or a payment of money or damages or otherwise.

Numerous precedents will be found below, pp. 401 sqq.

It has already been pointed out (above, p. 330) that care should be taken in the petition to show fully the matters in respect of which the claim is made, in order that the advisers of the Crown may be able to advise, with full information as to the facts, whether the fiat should be granted or not. Suppliants, however, often find themselves under the necessity of disguising, with more or less success, their real cause of complaint, in the hopes of snatching a fiat and ventilating their grievances, and perhaps escaping defeat on demurrer. But a petition of right ought to be drawn with at least as much particularity as a statement of claim. A clear statement to this effect will be found in West Rand Central Gold Mining Co. v. R., [1905] 2 K. B. 391; 74 L. J. K. B. 753: "We think it right to say that we must not be taken as acceding to the view that the allegations in the petition disclosed a sufficient ground for relief. The petition appears to us demurrable for the reason that it shows no obligation of a contractual nature on the part of the Transvaal Government. For all that appears in the petition the seizure might have been an act of lawless violence. We do not assent to the proposition . . that it is sufficient to allege what may be a ground of action if something else is added which is not stated. Upon all sound principles of pleading it is necessary to allege what must, and not what may, be a cause of action, and unless the obligation alleged in the present instance arose out of contract it is clear that no petition of right could be maintained." The Court then quotes the judgment of Willes, J., in Gautret v. Egerton (1867), L. R. 2 C. P. 371; 36 L. J.

C. P. 191: ". . . The plaintiff must, in his declaration, give the defendant notice of what his complaint is. He must recover secundum allegata et probata. What is it that a declaration of this sort should state in order to fulfil these conditions? It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged," and then the Court adds: "I need scarcely say that in dealing with a petition of right, which must be based upon contract [i.e., as opposed to tort] that observation would of course have its full force and effect."

In De Dohsé v. R. (1885), 1 T. L. R. 509, in the Court of Appeal, as appears from the transcript of the shorthand notes in the author's possession, Baggallay, L.J., said, "We have got here a number of various loose statements, made from time to time, apparently in the hope that, with a large mass of these irrelevant and doubtful expressions, it might be said that a contract could be found out, instead of stating it in clear and plain terms. I think the experience of those who have had to do with petitions of right before is very much in the direction that that is the usual form in these petitions of right which really have but little or no foundation whatever. They are put in vague and doubtful terms in the hope that something like a contract may be picked out;" and Bowen, L.J., said, "I agree with what has been said by my learned brothers that this petition of right is stated in the loose form to which we are all accustomed in petitions of right, in the hopes that the mass of allegations, which did not amount to a contract, might pass the demurrer of the AttorneyGeneral."

It is quite clear, pace Mr. Clode, that certain observations of Erle, C.J., and Willes, J., in Tobin v. R. (1863), as reported in 32 L. J. C. P. 216, at pp. 221, 224, are not in the least contrary to this. It is shown clearly by the report of the same case in 14 C. B. (N. S.) 505, at pp. 519, 524, that they only refer to the particular petition of right then in question, and are not intended to be general statements as to how vague a petition of right can be allowed to be.

It does not appear to the author that the statements in Chitty, Prerog. p. 345, as to the necessity of alleging the whole of the titles or claim of the Crown in a petition of right are any longer valid. The reasons given do not seem to apply now, the Crown has never in recent times insisted on any such matter, and, moreover, by sect. 7 of the Act the current system of pleading applies, and there is nothing in the Act to preserve any such privilege of the Crown. The existence, in spite of the Act, of the Crown's prerogative in its own pleadings rests on a different basis, as we shall see hereafter (pp. 385, 561).

The Prayer.

The most approved form of prayer is the general form praying that the petition may be endorsed "let right be done" (see the precedent printed below, p. 404). If this form is used, the actual claim which the suppliant puts forward is enunciated in the body of the petition, either in the form of a submission or of a prayer. This appears to the author to be the most correct and most respectful way of framing the petition. But frequently the petition concludes with a special prayer, just as in an ordinary statement of claim, asking for the relief sought. It will be observed that the form in the Schedule (No. 1) to the Act throws no light on the matter.

The claim, whether contained in the body of the petition or in the prayer, need not be confined to the mere claim for restoration or payment; it may also embrace all such ancillary remedies as are necessary for the satisfaction of the suppliant's claim, so long as such remedies are of such a nature as the Court could grant against the Crown. The claim for a declaration, for instance, if it be made in connection with, and as ancillary to, a claim for which a petition of right lies, is perfectly proper. But a claim for an injunction or a receiver must not be made, as no Court could grant it. Apart from such relief as the prerogative precludes the Court from granting, there is no limitation placed by the Act, ss. 9, 16, on the nature of the relief which may be prayed and granted. But, of course, all relief prayed must fall within the ambit of, or be ancillary to, the matters described in Chapter I. of this Book. In the case of the Clyde Shipping Co., Ltd.'s Petition of Right (1900), the fiat was refused to a petition, which merely sought a declaration as to the meaning of sect. 604 of the Merchant Shipping Act, 1894. Again, Brown's Petition of Right (1903), prayed, amongst other things, an inadmissible declaration that certain moneys claimed from the suppliant by the Inland Revenue authorities, but not yet paid by him, were not due from him to them.

The Signature.

A petition of right must be signed by the suppliant, his counsel or solicitor (sect. 1).

The Lodging of the Petition with the Home Secretary.

The petition, when drafted, must be left with the Secretary of State for the Home Department (sect. 2), in order that it may be submitted to the King for his consideration, and in order that the King, if he

shall think fit, may grant his fiat that right be done; and no fee or sum of money is payable by the suppliant upon his so leaving his petition, or upon his receiving it back.

The Home Secretary, on receiving the petition, transmits it to the Department of the Government, if any, to which, on inspection, it appears to refer, in order that it may favour him with its observations on the subject, with any facts which it thinks relevant to the matter at issue, and with its opinion, if it desires to express it, as to whether the Crown should be advised to grant the fiat or not. Such communication from the Department affected, together with any observations the Home Office thinks fit to make, are then sent, along with the petition, to the Attorney-General. He, with the unofficial assistance of the Junior Counsel to the Treasury, then reports to the Home Office whether, in his opinion, the Crown should be advised to grant or to refuse the fiat.

In the peculiar case of Irwin v. Grey (1862), 3 F. & F. 635, an action was brought against the Home Secretary for damages for failing to submit a petition of right to the Crown. The Home Secretary, called by the plaintiff, gave evidence that he had submitted the petition to the Crown, but added that he had advised the Crown not to grant the fiat. It was held that there was no case to go to the jury. The Home Secretary, it appears, ought not to have been asked what his advice was, nor to have volunteered the statement. See as to this matter, below, p. 596.

In In re Mitchell (1896), 12 T. L. R. 324, Bruce, J., remarked that if the Home Secretary capriciously refused to consider a petition of right, it might be that the suppliant would not be without a remedy. The decision of this matter will depend on the view taken of sect. 2 of the Act. Does it or does it not impose any duty on the Home Secretary as regards the suppliant, in addition to his duty towards the Crown?

The Fiat.

The Grant of the Fiat is Voluntary.

There is nothing in the Petitions of Right Act, 1860, to affect the entirely voluntary nature of the grant of the fiat. By sect. 2 the Crown, if it shall think fit, may grant the fiat, and, by sect. 7, the Act is to give the subject no new remedy against the Crown. In Tobin v. R. (1863), as reported in 32 L. J. C. P. 216, at p. 221 (the report in 14 C. B. (N. S.) 505, at p. 521, is not so clear on this point), Erle, C.J., said: "The words of sect. 2, so far from giving the subject a right of action against the Queen absolutely, which every subject has,