Costs.

See the article on costs on traverse of escheat in the general article on costs below, p. 621.

Appeal and Application for New Trial.

There is no modern instance of this. In R. v. Lord Yarborough (1828), 1 Dow & Cl. 178, a traverse of inquisition, the Crown applied for a new trial and, having failed, brought a writ of error. But if the author's view (p. 429) is correct, that the issues are tried, subject to the Crown's prerogative, like any other issues in the King's Bench Division, it will follow that the existing rules as to appeal and application for a new trial apply to proceedings on traverse of escheat.

Procedure in the Duchy of Lancaster.

The observations on the procedure in England and Wales may be taken to apply to the Duchy of Lancaster (but see the remarks above, p. 429), with the following variations and additions:

The commission issues under the seal of the Duchy.

The petition for leave to traverse is presented to the Chancellor of the Duchy, and it is he who gives leave to traverse the inquisition. The filing of the various proceedings is, apparently, in the Chancery of the Duchy of Lancaster.

The venue may be changed to Middlesex by an order of the Chancellor of the Duchy, and then a mittimus is issued to all the judges of the King's Bench Division. If it is not so changed, a mittimus under the seal of the Duchy, and signed by the Chancellor of the Duchy, is issued to the judges going the circuit, within the bounds of which the property is situate, for the next assizes. A form of mittimus is printed below, p. 461.

The record is enclosed in the mittimus and lodged with the associate or clerk of assize, who then sets down the issues for trial. Enlargement of time and other interlocutory matters are, apparently, dealt with by order of the Chancellor of the Duchy.

The Intestates Estates Act, 1884, is applied by s. 8 (p. 736) to the Duchy of Lancaster, with the substitutions therein described.

Instances of proceedings of traverse in the Duchy have been In re Moreton (1872) and In re Harrison (1877), neither of them reported. In the former, there was a verdict for the traverser; in the latter, the case was referred by the Court to a commissioner to take evidence and state a special case, on which judgment was given for the Duchy.

CHAPTER III.

MESNE PROFITS AND ISSUES.

THERE is no doubt that the King, on his title being found to hereditaments, is entitled to the mesne profits thereof from the moment when his title accrued. This is stated by Staundford, Praerog. 84 b, and has never been questioned.

The question whether a person recovering hereditaments from the King by traverse of office or petition of right, or by simple livery, is entitled also to be paid the profits thereof, which the Crown has taken during its possession, is more difficult. 28 Edw. I. c. 19, provides: "From henceforth, where the escheator or the sheriff shall seise other men's lands into the King's hands (where there is no cause of seiser), and after, when it is found no cause, the profits (in the French issues') taken in the meantime have been still retained, and not restored, when the King hath removed his hand; the King will, that if hereafter any lands be so seised, and after it be removed out of his hands by reason that he hath no cause to seise nor to hold it, the issues shall be fully restored to him to whom the lands ought to remain and which hath sustained the damage."

A similar provision in the case of escheat was to be found in 29 Edw. I., repealed by the Escheat (Procedure) Act, 1887, s. 3 and Sched. (p. 738). These provisions seem plain enough, but Coke (2 Inst. 272) makes ten points upon them, of which the following are here material:-1. By the common law, although the seizure was not lawful, yet for the mesne profits upon the livery or ouster le main the party grieved was not restored to the mesne profits, which mischief is remedied by these two statutes. 2. Issues are intended rents and things leviable by the escheator, which may be restored, though the escheator has accounted for them, and not paid; but the money being once in the King's coffers shall not be restored. 3. Though both these statutes speak only of an ouster le main, yet being both beneficial laws for restitution to be made to the party aggrieved, by equity they extend to liveries. 4. Where the words seem to extend only to seizures before office, and after by the office that is found the King is not entitled, yet by construction the same extend only [quære also] to seizures after office found. 5. These statutes extend by equity to

ouster le main and amoveas manus upon petitions and monstrans de droits, not only in cases concerning wardship, but freehold and inheritance. 6. These statutes extend also, by like equity, to ouster le mains upon traverses, although traverses were not in use at the time of the making of these statutes.

It will be seen that Coke is of opinion that the statutes extend to recovery of property from the Crown by any of the means by which a person could recover property, and his remarks apply equally well in spite of the repeal of 29 Edw. I. "Issues," also, seems to cover more than rents and the like; the word even includes the cattle of a stranger upon the land (Britton v. Cole (1698), Comb. 434, 469); and in 13 Edw. I. c. 39 (now repealed), it is expressed to include rents, corn in the grange, and all moveables, except "equitaturam, indumenta et utensilia domus."

But Coke further introduces the distinction, which is not to be found in 28 Edw. I. c. 19, though perhaps it might be read by implication into the repealed statute 29 Edw. I., between issues which have already been paid into the King's coffers and issues which have not. This distinction seems to make its first reported appearance in Roose's Case (1351), Y. B. T. 24 Edw. III. pl. 16, where it was. said: "Que le livrer des issues sera solement entendu de rents et choses leviable par l'escheator, queux seront livrés, mes que l'escheator eit accompt de eux, et non pas paiés. Mes dit fuit que les deniers in cofres le Roy ne seront pas livrés, etc." Com. Dig. Praerog. D. 82, appears to follow the statute without noticing the limitation placed upon it by Coke, saying: "There shall be judgment also for the mesne issues and profits: Stanf. Praer. 71a"; but Bacon, Abr. Prerog. E. 7, p. 477, adds the qualification: "The judgment is quod manus domini regis amoveantur, and that the party be restored to the possession of the premises with the appurtenances together with the mesne profits to the time of the caption of the inquisition not answered to the Crown, salvo jure domini regis, added by 2 & 3 Edw. VI. c. 8 [now repealed]; Co. Ent. 404, 406 b; Finch's Law, 459 a, 460; 2 Inst. 695; Keilw. 158 a." Finch's Law, 325, has: "If the office be for personal goods, the party may always have a traverse or plead any matter unto it, and so have his goods again, unless the escheator have accounted for them."

And there is much other authority to the same effect. In Lord Somers' argument in The Bankers' Case (1700), 14 St. Tr. 1, 71, we find: "When once money has been paid into the receipt of the Exchequer, no Court has any power over it, nor is there any legal method to fetch it back again, although, in several cases, if it had not been actually paid into the receipt, it might have been restored to the

party..

When upon an office or inquisition a title is found for the King and the mesne profits are paid into the receipt, if upon a traverse or monstrans de droit judgment be afterwards given for the subject, and an amoreas manus awarded, yet as to profits paid into the receipt there shall be no restitution." He then criticises the suggestion that there is some difference between a judgment on a petition of right and a judgment on a traverse or a monstrans de droit in this matter, and continues: "If the profits remain in the tenant's hands, or if they are in transitu in the hands of the receivers, though the receivers have accounted for them, the party is restored to them; but if they are answered into the receipt they are lost to him." He concludes by asserting that in no instance recorded, where mesne profits were restored by judgments on a traverse or monstrans de droit, was there any sign that such profits had already been paid into the Exchequer. To a similar effect is A.-G. v. Waring (1658), Hard. 147, 366.

In Burgess v. Wheate (1759), 1 Eden, 177, 188, we find: "The judgment, if the subject succeeds, is amoveat manus, but he loses the intermediate profits which are accounted for in the Exchequer.

The office is circuitous, expensive, and attended with the loss of mesne profits to the subject."

Mr. Edward Law (afterwards Lord Ellenborough, C.J.) advised to the same effect in 1800.

The Court, in Oldham v. Lords of the Treasury, cited 6 Sim. 220, said: "The jurisdiction of the Court of Exchequer extends only to the reaching the monies which come into the Treasury while they are in transitu; but, after Parliament has disposed of them and they have reached their destination, the jurisdiction of the Barons ceases; and here the King alone can order the payment of the money. The money is granted to the King, his successors and assigns; and the King himself must be sued by petition of right, if this money is to be got at."

In A.-G. v. Köhler (1861), 9 H. L. C. 654, 663, Rolt and Palmer arguendo said: "If the heir-at-law afterwards appears and makes good his claim, the only judgment is amoreas manus, which carries in favour of the claimant all the rents and profits not actually received by the Crown, but those which have actually been received are irrecoverable."

In Tobin v. R. (1864), 16 C. B. (N. S.) 310, 359; 33 L. J. C. P. 199, 208, the Court suggested that it was likely that the above rule would not prevail if the question arose now.

It now remains to mention what has actually been done in recent cases where there has been a judgment of amoreas manus. In R. v.

Kane (1852), not reported, a traverse of escheat, the property had been sold by the Commissioners of Woods and Forests. The heir-atlaw established his claim, and the Crown returned to the purchaser his purchase-money, and paid him the money laid out by him in repairs and improvements on the property since his purchase and also his law costs. Apparently no mesne profits had been taken by the Commissioners, and no interest was allowed to the purchaser on his purchase-money.

In In re Gosman (1880), 15 Ch. D. 67; 49 L. J. Ch. 590, a petition of right to recover leaseholds, the petition also prayed an account of rents received by the Treasury Solicitor, and the Crown did not contest the accouut, although the money had been paid into the Exchequer; but the Court also awarded interest upon the rents and profits received. The decision as to interest, however, was reversed (1881), 17 Ch. D. 771; 50 L. J. Ch. 624.

In R. v. Smelt (1890), not reported, a traverse of escheat, there was no order as to mesne profits, but by arrangement the Crown retained 2007. out of them for its costs, and paid the balance to the traverser.

In R. v. Westmacott (1900), not reported, the Crown confessed, and offered the traverser the mesne profits from the date of the filing of the petition for leave to traverse. A subsequent petition on behalf of the traverser to the Treasury for the restoration of all the mesne profits since seizure was not granted.

An inspection of all these authorities seems to show that the objection to the recovery of mesne profits and issues which had actually gone into the King's coffers was one of procedure rather than of substance. The decisions do not allege that the King stood in any privileged position with regard to such profits as were still in transitu, or in such a position that they could be readily paid over to the person who had proved his title; they only point out the absence of machinery for recovering profits which were no longer in such a position. The Petitions of Right Act, 1860, now provides machinery for this purpose, and under these circumstances it certainly appears to the author that the basis of the decisions cited has no longer any substantial validity (see, in particular, the remarks of the Court in Oldham v. Lords of the Treasury and Tobin v. R., above).

If the objection were one of substance and not of procedure, this would not be so, since the Act of 1860 does not enlarge the rights of the subject against the Crown (see above, p. 567). But it appears to the author that at the present day, if the Crown took the objection on a traverse of escheat, it would be open to the successful traverser to claim the mesne profits by petition of right (see as to this, in