In Clerk v. R. (1861), 9 H. L. C. 184; 31 L. J. Q. B. 175, an information in the nature of a quo warranto, the venue was changed, and the question of prerogative was not, and probably could not be, raised.

In Secretary of State for War v. Studdert (1901), 1 I. R. 346, the defendants moved to transfer the action from the Chancery to the King's Bench Division, and their application was granted in the Court of first instance, though it was resisted by the Secretary of State on the ground that the Crown had the right to choose its Court. The Court of Appeal rather suggested that the prerogative right no longer applied as between two Divisions of a unified High Court, but allowed the appeal on the ground of convenience, without deciding the point.

It was held in Scotland, in Somerville v. L. A. (1893), 20 R. 1050, that no inferior Court in that country has jurisdiction over the Crown, unless the Crown has consented to submit to the jurisdiction of the particular Court.

Right of the Crown to lay and retain the Venue in any County.

This matter was fully discussed, with a citation of most of the early authorities, in A.-G. v. Lord Churchill (1841), 8 M. & W. 171; 10 L. J. Ex. 314. It was there held that in an information of intrusion the Crown had not the right, as of its prerogative, to lay the venue in any county, or to issue the venire facias juratores into a different county from that in which the venue was laid. The Court held that the early authorities established that the King might lay and retain his suit in what county he pleased in "personal" actions only (see, for instance, R. v. Webb (1670), 1 Sid. 412: "Roy aver prerogative a try ses personal actions lou il pleist"), and that personal actions meant actions for the recovery of debts or damages to the person or to personal effects, and that in this sense an information of intrusion was not a "personal action," although it was a "personal action" in another sense, as opposed to a real action, its essence being the recovery of damages and not the recovery of the estate, which the Crown, in contemplation of law, had never lost. This decision, therefore, did not follow the decision in A.-G. v. Parsons (1836), 2 M. &W. 23; 5 L. J. Ex. 243. The matter was again discussed, but not decided, in A.-G. to the Prince of Wales v. Crossman (1866), L. R. 1 Ex. 381; 35 L. J. Ex. 215, where the Court inclined to the opinion that the prerogative only extended to transitory actions. So it had been held in A.-G. v. Browse (1727), Bunb. 236, and in A.-G. v. Hines (1758), Park. 182, that an information under 12 Car. II. c. 32, might be laid in any county, because the offence

was transitory. So in an action for embezzling the King's goods. (R. v. Webb (1670), 1 Ventr. 17.)

The Attorney-General of the Prince of Wales has, it would seem, the same rights as the King's Attorney-General in this behalf. (A.-G. to the Prince of Wales v. Crossman, ubi sup.)

Now, however, by virtue of sect. 46 of the Crown Suits, &c. Act, 1865 (printed below, p. 699), it would seem that the above principles must be taken to extend to all proceedings in the High Court in which the Crown's interest or profit is concerned, whether "personal" or not. That section provides that where a cause, in which the Attorney-General on behalf of the Crown is entitled to demand as of right a trial at bar, is at any time depending in the High Court, and the Attorney-General states to the Court that he waives his right to a trial at bar, the Court, on the application of the Attorney-General, shall change the venue to any county in which the Attorney-General elects to have the cause tried; and it provides the machinery to carry out these provisions. The section is discussed in Dixon v. Farrer (1886), 18 Q. B. D. 43; 56 L. J. Q. B. 53, and that case and the general question as to the circumstances under which the Crown is entitled to a trial at bar are discussed below, p. 587. See also Exchequer Rules, 1860, Sched. C., Form 4 (below, p. 796). In the case of petitions of right, however, the section must be read subject to what has been said as to change of venue in such proceedings (above, p. 382).

It is further specially provided by 21 Jac. I. c. 4, s. 1, that informations upon penal statutes shall be prosecuted in the counties where the offences were committed. (See R. v. Gaul (1698), 1 Salk. 372.) As to the venue in cases of offences under the Customs Consolidation Act, 1876, see sects. 229, 258 of that Act (below, pp. 719, 726); in cases of Post Office offences, see the Post Office (Offences) Act, 1837 (7 Will. IV. & 1 Vict. c. 36), ss. 37, 39.

By sect. 17 of the Queen's Remembrancer Act, 1859 (printed below, p. 678), suits and proceedings pending on the Revenue side of the King's Bench Division may be tried on circuit without any commission issued for the purpose.

The defendant to an ex officio information by the Attorney-General cannot obtain a change of venue without the Attorney-General's consent. (A.-G. v. Smith (1816), 2 Price, 113.)

Right of the Crown to transfer certain Proceedings to the Revenue Side of the King's Bench Division and to be Actor in such Proceedings. The Court of Exchequer (now the Revenue side of the King's Bench Division) has always been the natural and proper tribunal for

the trial of suits touching the profit of the Crown, whether the Crown was originally a party or not. It follows from this that the Crown has the right to insist upon the removal to the Revenue side of the King's Bench Division of any case which touches its profit, unless it prefers to waive its right.

A number of the older cases are collected in Manning, Exch. Pr. (ed. 2), pp. 187-195. He divides them under two heads: (i.) Where any matter properly cognisable on the Revenue side of the Exchequer was drawn into question in an action brought in another Court. This branch of the matter is of much less importance since the fusion of the Courts by the Judicature Acts. (ii.) Where the matter of the suit in another Court touches the profit of the King. It is this branch with which we are now particularly concerned.

Petitions of right for the recovery of duties paid, intituled in the King's Bench Division, are always tried on the Revenue side as part of the Revenue paper. An action as to a demand of prisage of wine, the Crown having a reversionary interest in the prisage, was removed into the Exchequer (Lamb v. Gunman (1751), Park. 143); so were actions in respect of the seizure of ships. (Pennington's Case (1754), cited 1 Anst. 213, 214; Bereholt v. Candy (1718), Bunb. 34; Adams v. Fremantle (1848), 2 Ex. 453; 17 L. J. Ex. 312.) But it is said in a note to Bereholt v. Candy, that, after a verdict for the defendant on an information in the Exchequer, the Court would not order the removal of an action for the seizure subsequently brought in the Common Pleas. Actions against Revenue officers for the recovery of duties or for damages have been frequently removed. (Cawthorne v. Campbell (1790), 1 Anst. 205, n., where the matter is elaborately discussed; Pennington's Case (1754), 1 Anstr. 213, 214; Penny v. Bailey (1731), Bunb. 309, pl. 392; Beningfield v. Stratford (1820), 8 Price, 584; In re Kingsman (1814), 1 Price, 206; A.-G. v. Kingston (1841), 8 M. & W. 163; 11 L. J. Ex. 72; Smith v. Cameron (1845), 9 Jur. 405.) But it must appear that the King's profit is actually affected. (Barkley v. Walters (1731), Bunb. 306.) See also R. v. Clace (1769), 4 Burr. 2456, and In re Lord Listowel's Fishery (1875), Ir. R. 9 C. L. 46.

In A.-G. v. Hallett (1846), 15 M. & W. 97; 15 L. J. Ex. 246, an action of trespass quare clausum fregit, where the defendant justified the trespass as the servant of, and by command of, the Queen, the Court of Exchequer ordered the action to be removed thither from the Common Pleas (after a two days' notice to, and hearing counsel on behalf of, the plaintiff) by a rule absolute in the first instance, on the allegation of the Attorney-General that the profit of the Crown came in question in the case, the plaintiff being put in the same state of forwardness as he was in the Common Pleas. As

to preserving the action after removal at the stage which it had already reached, see also Cawthorne v. Campbell (1790), 1 Anst. 205, n.; Lord Stanley of Alderley v. Wild & Son, [1900] 1 Q. B. 256; 69 L. J. Q. B. 318.

The prerogative right is not affected by the County Courts Acts. (Mountjoy v. Wood (1856), 1 H. & N. 58, decided on 9 & 10 Vict. c. 95; compare Lord Stanley of Alderley v. Wild & Son, ubi sup.)

The Crown has the further right, when its title to property comes in question, to prevent the title from being decided in any suit between subjects, and is entitled to have it decided by a proceeding in which the Crown itself is actor (A.-G. v. Barker (1872), L. R. 7 Ex. 177; 41 L. J. Ex. 57), and this right has not been affected by the Judicature Acts. (A.-G. v. Constable (1879), 4 Ex. D. 172; 48 L. J. Ex. 455. The pleadings on this point will be found above, pp. 294, 296, 304.) The Crown then institutes proceedings by information on the Revenue side of the King's Bench Division, and obtains an order either removing the proceedings between subject and subject or merely staying them until the information has been heard and determined. It can do this at any stage of the latter proceedings, even after judgment. (Yates v. Dryden (1634), Cro. Car. 589; Lord Stanley of Alderley v. Wild & Son, ubi sup.)

Method of Application on behalf of the Crown.

In Dixon v. Farrer (1886), 18 Q. B. D. 43; 56 L. J. Q. B. 53, the Attorney-General moved the Divisional Court for a rule for a change of venue, stating that he waived his right to a trial at bar, under sect. 46 of the Crown Suits, &c. Act, 1865, and, after cause had been shown, the rule was made absolute. Quære, whether there should not have been a rule absolute in the first instance, after notice to the other side, as in A.-G. v. Hallett (1846), 15 M. & W. 97; 15 L. J. Ex. 246, which, however, was an application of a slightly different kind. The same course was pursued in Adams v. Fremantle (1848), 2 Ex. 453; 17 L. J. Ex. 312.

In the last-cited case the Court discussed the question whether the Attorney-General was bound to file an affidavit in support of his application, and, after the earlier cases had been examined, decided, on the authority of Cawthorne v. Campbell (1790), 1 Anst. 205, n., that he was not bound to file an affidavit. The general question of the privilege of the Attorney-General to suggest facts ore tenus without affidavit is discussed below, p. 594. See also the discussion as to the mode of application for a trial at bar, below, p. 588.

CHAPTER VII.

TRIAL.

"LE roy avera tiel jour come il voet" (Y. B. 12 & 13 Edw. III. p. 331 (Rolls Series)). This is repeated in Fitzh. Abr. Prerog. 17. "The Crown cannot be compelled to go to trial" (Manning, Exch. Pr (ed. 2), p. 120). On similar principles it was said in R. v. Banks (1705), 6 Mod. 245, 247: "There cannot be a trial by proviso in the King's case, because there can be no laches in the King"; compare Knerit v. Taylor (1587), 2 Leon. 110. But in A.-G. v. Richards (1796), 3 Anst. 753, an information of seizure, the defendant was granted a writ of delivery without security, the Attorney-General not showing cause against it, on the ground of the Crown's delay in proceeding. It is also said in Com. Dig. Praerog. D. 85, that after a distringas and jury returned upon it, the Attorney-General cannot, at his pleasure, stay trial, referring to Luke's Case (1590), 4 Leon. 32, where the point was raised, but not decided.

Ord. XXXVI. has no application to the Crown, except in so far as it applies to petition of right.

33 Hen. VIII. c. 39, s. 51, provides that any suit on behalf of the King for the recovery of the King's debt shall be preferred before the suit of any other person or persons.

The omnipresence of the King has already been noticed (pp. 9, 218, and see 2 Inst. 39). So, in Barclay v. Russell (1789), 2 Dick. 729, a motion that the Attorney-General might be directed to appear to the plaintiff's bill was refused, Lord Thurlow, L.C., saying that the Attorney-General, qua such (sic), was always supposed to be in Court, and, if he would not appear, it must be considered as a nihil dicit.

See further, as to proceedings on the Revenue side of the King's Bench Division, above, p. 218.

The Crown's right to begin and reply and other privileges are dealt with above, pp. 10 sqq.