requires them, to pay any money and costs to which the judge has certified the suppliant to be entitled, as already mentioned, out of any moneys in their hands for the time being legally applicable thereto, or which may be voted by Parliament for that purpose. In the other case, the amount to which the suppliant is entitled is to be paid to him out of such funds or moneys as the King is pleased to direct to be applied for that purpose. The distinction between the public and private capacity of the King in this matter is discussed above, p. 368.

It would seem to be for the judge, who gives the certificate, and not for the suppliant, to say whether the certificate is to go to the Treasury or to the Treasurer of the Household, and to frame his certificate accordingly.

It will be the duty of the Treasury, in cases in which the certificate is sent to them, to see that the suppliant is paid, and to communicate with the Department which controls the funds, out of which the judgment ought to be satisfied. No provision is made for judgments involving the restoration of lands or other specific hereditaments or chattels, because the judgment has the effect of a judgment of ouster le main, and the Crown is thereby put out of possession. It would seem to be the duty of the Treasury primarily, with the assistance of the Department concerned, to see that the suppliant is enabled to reap the fruits of his judgment without difficulty.

If the Treasury failed to pay the amount of the certified judgment and costs, which they are, by sect. 14, under a statutory duty to pay, probably a mandamus would lie to compel them to do so. (See above, p. 112.)

In practice, however, the certificate is not applied for by the suppliant, and it is customary for the Treasury to pay the amount of the judgment and taxed costs on the judgment alone without any certificate. Quare, whether they ought to do so.

Costs.

The Act, by sect. 11, provides that on any petition of right under the Act, the Attorney-General, or other person appearing on behalf of the Crown, and also any third party, are entitled respectively to recover costs against the suppliant in the same manner, and subject to the same restrictions and discretion, and under the same rules, so far as they are applicable, as are or may be usually adopted or in force touching the payment or receipt of costs in proceedings between subject and subject. For the recovery of such costs the Crown and any third party shall and may have the same remedies and writs of execution as are authorised for that purpose in an ordinary

action. Costs recovered on behalf of the Crown are to be paid into the Exchequer, and form part of the Consolidated Fund, or are to be paid to the Treasurer of the King's Household, or such other person as the King appoints to receive them, according as the petition is to the King in his public or in his private capacity.

In Owens v. R., [1900] 2 I. R. 513, O'Brien, C.J., wished to deprive the Crown, which had succeeded, of its costs, on the ground that the fault lay with the officials of the Crown; but the majority of the Court did not agree with him.

Similarly, by sect. 12, the suppliant is entitled to costs against the Crown and against any third party, as in an ordinary action, so far as the ordinary rules are applicable. For the recovery of costs against a third party he is to have all the ordinary remedies.

For the recovery of costs against the Crown he proceeds in the same way as for the recovery of other sums due to him from the Crown under the judgment, as described above, p. 396.

The provisions of these sections abolish, so far as petitions of right are concerned, the well-known prerogative of the Crown with respect to the non-payment of costs. This prerogative is fully discussed below, p. 613.

Quare, whether these provisions prevent the Crown from exercising against the suppliant such prerogative remedies as it possesses for the recovery of Crown debts. (See above, pp. 172, 189.) The author thinks that they probably do not, and that they merely enable the Crown to proceed by an ordinary execution if it so desires. In the case in 1877 of Cowing and others, who had presented what was taken to be a petition of right, though it was couched in a most irregular form, the Crown, after issuing a fi. fa. for costs awarded to it on the petition, proceeded by writ of extent (R. v. Cowing (1877), not reported), and had two of the defendants arrested. A rule was obtained against the Crown to show cause why the writ of extent should not be set aside and the defendants released, on the ground that the Crown no longer had this prerogative remedy for the recovery of costs under a petition of right (see the form above, p. 278). The Home Secretary, in response to pressure, released the prisoners, and the Attorney-General, instead of insisting that the rule should be withdrawn, allowed it to be made absolute. On this, in Cowing v. Hare (1878), not reported, the two defendants who had been arrested claimed damages for wrongful imprisonment against the solicitors acting for the Crown. The point now under discussion was mentioned in the course of the argument, but the case was decided on another ground, and no judgment was given on the question.

CHAPTER V.

PETITION OF RIGHT IN IRELAND.

THE Petitions of Right (Ireland) Act, 1873 (36 & 37 Vict. c. 69), recites that it is expedient to make provision for the trial of petitions of right in Ireland in the same manner as in England. The Act will be found printed in extenso below, at p. 711. It gives power (sect. 2) to the suppliant to entitle his petition in the King's Bench or Chancery Division of the Supreme Court of Judicature in Ireland, namely, where the subject-matter of the petition, or any material part thereof, would have been cognisable if it had been a matter in dispute between subject and subject. If the Crown grants the fiat to that effect, the petition may be prosecuted in the Court in which it is entitled, or in such other Court as the Lord Chancellor of Ireland directs. In other respects the proceedings are to be the same as those provided for by the English Act, and (sect. 6) the forms of petition and the other forms prescribed by the English Act are to apply, with such alterations and additions as may show that such petition is entitled, and such proceedings had, in the Irish Court. The English Act is to be construed accordingly.

The petition must contain an averment (sect. 3) that the subject matter of the petition or a material part thereof arose in Ireland. Such averment is a material and necessary statement in the case of the suppliant, and a traverse of such averment shall be deemed to be a sufficient pleading in bar of the suppliant's right to relief.

It should be observed that there is nothing in this Act to prevent a petition of right being presented and proceeded with in England in respect of an Irish cause of action, if the Crown sees fit to grant the fiat. All the statute does is to provide a method by which petitions of right, in Irish matters only, may be tried in the Irish Courts.

After the fiat has been obtained (sect. 4), a copy of the petition and fiat must be left within twenty-eight days with the Crown and Treasury Solicitor for Ireland indorsed with a request for a plea or answer on behalf of the Crown, as provided in sect. 3 of the English Act. Failing compliance with this provision, no further proceedings shall be taken or had upon the petition.

Sect. 5 of the Act confers upon the judges of the Supreme Court the power of making rules and orders conferred by sect. 15 of the English Act. The last-mentioned section was repealed by the Statute Law Revision and Civil Procedure Act, 1881 (44 & 45 Vict. c. 59), s. 3 and Schedule, and the Supreme Court of Judicature Act, 1875 (38 & 39 Vict. c. 77), was, by sect. 6, applied to the making of rules and orders with regard to petitions of right. It is apprehended that this does not affect sect. 5 of the Irish Act, and that the Irish judges have still power, in the terms of sect. 15 of the English Act, to make rules and orders with regard to petitions of right. They have not hitherto exercised that power.

APPENDIX OF PRECEDENTS.

PART I.

Petition of Right in the King's Bench Division.

Pleadings on a Petition of Right for Damages for Breach of Contract.

1. Your Suppliants are Printers carrying on business under the style or firm of B. and D.

day of

2. On or about the it was mutually agreed by and between Your Suppliants and G. H. the Controller of Your Majesty's Stationery Office as a servant of and on behalf of Your Majesty that Your Suppliants should print and the said G. H. should employ them to print certain books and papers for Your Majesty's Government on the terms and conditions contained in a Memorandum of Agreement of the date above mentioned to which Your Suppliants crave leave to refer as if the same were herein fully set out.

3. On or about the

day of

the said G. H. as a servant of and

on behalf of Your Majesty informed Your Suppliants that he should thereafter refuse to employ Your Suppliants to print for Your Majesty's Government such books and papers as he considered to be of a confidential character and he still refuses so to employ Your Suppliants and has since the said date employed other persons to print such books and papers.

day of

4. The printing of such books and papers was part of the work stipulated to be performed by Your Suppliants under the said Memorandum of Agreement of the and Your Suppliants have at all times been ready and willing to execute all such printing and all such conditions precedent have at all times been fulfilled as were necessary to entitle Your Suppliants to be employed to execute all such printing and Your Suppliants have not at any time broken any of the conditions of the said Memorandum of Agreement.

5. By reason of the premises and of the refusal by the said G. H. as a servant of and on behalf of Your Majesty to employ Your Suppliants to execute such printing as aforesaid Your Suppliants have been prevented from

C.P.

D D