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Procedure Act, 1852 (n), nor by the County Court Act, 1846 (0), nor by Acts giving costs to a successful party (p), nor by the Judicature Act, 1873, so as to lose its right of having revenue cases determined in that Division of the High Court of Justice to which the jurisdiction of the Court of Exchequer has been assigned (q). It is not bound by the Companies Act, 1862, and is therefore entitled to distrain for income-tax after the commencement of a winding up, and to exact payment in priority to other creditors of the amount due for income-tax (). Although named in parts of the Bankruptcy Act, 1869, it is not bound by the sections which give the title of the trustee of a liquidating debtor relation back to the filing of the petition, and the debtor's property therefore remains subject to an extent issued by the Crown between the filing of a petition and the appointment of a trustee (s).

Crown is

necessary

tion.

In all these cases it has been held that the When the Crown is not bound, because it has not been bound by named in the particular statute. At other times, implicahowever, it has been held that the Crown may be included in the provisions of a statute by necessary implication. Thus, where the Act 7 Hen. IV. c. 4, provided that protection should not lie for a warden of a prison if an action of debt for the

(n) Arding v. Holmer, 1 H. & N. 85.

(0) Mountjoy v. Wood, 1 H. & N. 58.

(p) R. v. Beadle, 7 E. & B. 492; Atkinson v. Queen's Proctor, L. R. 2 P. & D. 255.

(q) Att.-Gen. v. Constable, L. R. 4 Ex. D. 172.

(r) Re Henley & Co., L. R. 9 Ch. D. 469.

(8) Ex parte Postmaster-General, re Bonham, L. R. 10 Ch. D. 595.

When the
Crown is

any

escape of a prisoner was brought against him, it was held that as the Crown alone could grant this protection, the Act bound the Crown and prohibited such exercise of its prerogative (t). Again, it was held that an implied negative in a statute limited the rights which the Crown possessed at Common Law. The Act of the 33 Hen. VIII. c. 39, s. 74, provided that the King should have execution against any defendant before any other person, "so always that the King's said suit be taken and commenced before judgment given for the said other person." It was decided that this statute abridged the prerogative and controlled the Common Law, so that the Crown was no longer entitled to priority of execution where the right of a subject was vested by reason of his having obtained a judgment (u).

It is not easy to discover any method of defining bound or classifying those statutes which bind the Crown without express words, and which, therefore, form the exceptions to the general rule.

though not named.

In one place it is said that the Crown is bound, even when it is not named, by all statutes which are passed with the object of suppressing wrong, of taking away fraud, or of preventing the decay of religion (x). An Act made to suppress wrong and advance right, like Westminster the Second, c. 5, concerning advowsons, or the 32 Hen. VIII. c. 28, concerning discontinuances, binds the King though

(t) Brooke's Abridgment, tit. Parliament, pl. 30, citing 39 Hen. VI. c. 39.

(u) Att.-Gen. v. Andrew, Hardress, at p. 27, per Parker, B.
(x) Case of Ecclesiastical Persons, 5 Rep. 14a.

he be not named, because "the King being God's lieutenant can do no wrong" (y). "Where an Act of Parliament is made for the public good, the advancement of religion and justice, and to prevent injury and wrong, the King shall be bound by such Act though not named" (2). And as the Crown is bound by an Act passed for the further advancement of justice, if such an Act uses terms so comprehensive as to include all cases brought up by writ of error, criminal cases will not be excepted on the ground that the Sovereign as public prosecutor is not expressly mentioned (a). On the same ground it was held that the Act 11 Geo. IV. & 1 Wm. IV. c. 70, making writs of error returnable in the Exchequer Chamber, bound the Crown, and that a writ of error lay to the Exchequer Chamber in a case where the Crown was party to a suit (b). Again, the Crown is bound by the general provisions of Magna Charta (c), by the Act de donis, Westminster the Second (13 Edw. I.), c. 1 (d), by an Irish Act for the consolidation of endowed rectories and vicarages (e), by the Statute of Marlbridge (52 Hen. III.), c. 22, which provides that "none from henceforth may distrain his freeholders to answer for their freeholds nor for any things touching their freeholds. without the King's writ” (ƒ).

(y) 2 Inst. 359, 681.

(2) Bac. Ab. Prerogative (E. 5).

(a) R. v. Wright, 1 A. & E. 434.

(b) Baron de Bode v. The Queen, 13 Q. B. 364.

(c) 2 Inst. 77, 108.

(d) Willion v. Berkley, Plowd. 223.

(e) R. v. Abp. Armagh, 1 Str. 516, 8 Mod. 6.
(f) 2 Inst. 142.

Express words

needed to

take away

jurisdic

tion of Superior Courts.

The Crown is bound by the Statute Westminster the First, c. 5, as to free elections, of which Lord Coke says: "The Act is penned in the name of the King, viz., the King commandeth, and therefore the King bindeth himself not to disturb any electors to make free election, as in the like case upon a statute made in the reign of the said King, the Act saying rex perpendens, the same bound the King" (g). We may find it difficult to reconcile some of these cases with the general principle, and it will occur to many that if a mere allusion to the authority of the Sovereign, if the fact that a statute has been passed with an intention which underlies all statutes, would suffice to bind the Crown, the necessity for express words dwindles to nothing. Still, we must take both the rule and the exceptions to it as we find them, and as they have been established by a long series of decisions.

The rule which requires express words in other cases is more flexible than it is in the case of the Crown, and is more readily capable of being modified by such an implication as is necessary to give effect to any particular statute. The jurisdiction of the Superior Courts of law "can only be taken away by express words, or, perhaps, by a necessary implication which must be intended of the use of such words as are absolutely inconsistent with the exercise of a jurisdiction by the Superior Courts, and to which effect cannot be given but by the exclusion of such a jurisdiction" (h). This rule (g) 2 Inst. 169.

(h) R. v. Mayor of London, 9 B. & C. at p. 27; Shipman v. Hen

away

certiorari.

applies not only to the original jurisdiction of the Superior Courts, but also, and even more forcibly, To take to the jurisdiction which they exercise over inferior writ of Courts by means of the writ of certiorari. It was laid down by Lord Mansfield that nothing but express negative words could take away this jurisdiction (). Words giving final authority and determination to justices (j), or to the sessions (k), do not take away the writ of certiorari; nor does a provision that no certiorari shall supersede any execution (1), nor that "no other Court whatsoever shall intermeddle with any cause or causes of appeal under this Act, but they shall be finally determined in the Quarter Sessions only" (m).

appeal.

The same words which are needed to take away To give an the writ of certiorari are needed to give an appeal (n), and no such right can be given by implication, as by a form in the schedule to an Act containing the words "unless upon an appeal against the same to be then made" (0), or by reference to other Acts, which allow an appeal (p).

But if the words of reference are such as to amount to incorporation or re-enactment, they may give an appeal as they may take away certiorari.

best, 4 T. R. 109, per Ashhurst, J. See, too, Balfour v. Malcolm, 8 Cl. & Fin. at p. 500, per Lord Campbell.

(i) R. v. Abbot, 2 Dougl. at p. 555.

(j) R. v. Plowright, 3 Mod. 95.
(k) R. v. Jukes, 8 T. R. at p. 544.
(1) R. v. Berkley, 1 Kenyon, 80.
(m) R. v. Moreley, 2 Burr. 1041.
(n) Att.-Gen. v. Sillem, 10 H. L. C. 704.
(0) R. v. Stock, 8 A. & E. 405.

(p) R. v. Surrey Justices, 2 T. R. 504.

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