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Government, arising upon a promise made by the Governor, of a grant of certain land in the Colony, on condition, that he would retire from the army and take up his residence in the Colony. He complied with the condition, but failed to receive the grant of the specific land promised.
The proceeding was in the nature of a Petition of right, authorized by the Local Act (20 Vict., No. 15), which recites that the remedy by Petition of right is of limited operation, and insufficient to meet all cases of dispute between individuals and the Government. The first section of the Act, enacting that, in all cases of dispute or difference touching any claim which may have arisen between the Colonial Government and any subject of the Queen, the person having such dispute or difference may present a petition to the Governor, setting forth the particulars of his claim, and that such petition may, if the Governor and Executive Council think fit, be referred to the Supreme Court for trial by a jury or otherwise, as the Court shall direct. And by sec. 2, in case of such reference, the Governor shall name some person to be a nominal defendant in the matter of such petition, the complaining party being the plaintiff therein.
In pursuance of these enactments, a petition by the plaintiff was presented and referred to the Supreme Court for trial, the defendant, who was Minister for Lands, being named under the last mentioned section to represent the Government. The Supreme Court rendered judgment in favor of plaintiff for the value, at the time of the trial, of the specific land which had been promised him by the Governor.
On appeal from the Judgment of the Supreme Court, refusing a new trial, their Lordships of the Privy Council confirmed the Judgment and dismissed the appeal.
The Sovereign is not responsible for a wrong, and cannot authorize a wrong to be done; the remedy is by action against the wrong doer. The authority of the Crown can afford no defence to an action brought for an illegal act committed by an officer of the Crown. Feathers v. The Queen (12 L. T., N. S., 114; 35 L. J., Q. B. 200.) Also, similar ruling in :
Tobin v. The Queen (16 C. B., N.S., 310) where a captain in Her Majesty's Navy destroyed an innocent vessel on a mere suspicion that she was engaged in the slave trade. The owners brought a Petition of right against the Crown to recover damages, on the ground that the relation of the Queen to a captain in Her Majesty's Navy was similar to that of a master to his servant, and that the responsibility attached to the Crown for injury sustained by his negligence. Held, that the supposed analogy fails in the following respects: First, that the Queen does not appoint a captain to a ship of her own mere will, as a master does a servant, but through an Officer of State, responsible for appointing a man properly qualified; and, secondly, that the will of the Queen alone does not control the conduct of the captain in his movements, but a sense of professional duty; and, thirdly, because the act complained of was not done by order of the Queen, but by reason of a mistake in respect to the path of duty; and consequently, that this was not a case for a Petition of right for the reason that claims founded on wrongs are within a class legally distinct from claims founded on contracts and grants. The remedy for the wrong, if any were done, was against the person who did it, for, the civil irresponsibility of the Supreme power for tortious acts, could not be maintained with any show of justice if its agents were not personally responsible for them.
And an action will lie against the wrong-doer for a tortious or wrongful act, notwithstanding it may have had the sanction of the highest authority of the State. Johnstone v. Sutton (1 Durn & Easts 538).
In Leach v. Money (19 How. St. Trials, 1001), plaintiff, who was arrested by a King's messenger under a general warrant under the hand of Lord Halifax (Principal Secretary of State), recovered damages against the messenger for false imprisonment; it being held that general uncertain warrants were illegal.
No action will lie against a military officer for an act done in the ordinary course of his duty as such officer. Dawkins v. Paulet (L. R. 5 Q. B., 94).
But an action will lie for a wrongful and illegal act done by a military officer not in the exercise of military authority or in the discharge of a military duty. Warden v. Bailey (4 Tawn. 67; 4 M. & S. 400).
An injurious act done by a naval commander, if adopted by the Government (the Secretary of State for Foreign Affairs and the Secretary of State for the Colonial Department) becomes an act of State done by authority of the Crown. The ratification by the Ministers of State of the injurious act is equivalent to a prior command. Buron v. Denman (2 Exch. 166).
In Regina v. Burah (L. R. 3 App. cases, P. C. 889). Held by their Lordships of the Judicial Committee, that section 9 of the Imperial Act (24 & 25 Vict. c. 104), for establishing High Courts of Judicature in India, which confers upon the Governor General the power to determine whether the Act or any part of it shall be applied in a certain district, is conditional legislation, and not a delegation of legislative power; and that where plenary powers of legislation exist as to particular subjects, whether in an Imperial or in a Provisional Legislature, they may be exercised either absolutely or conditionally; in the latter case, leaving to the discretion of some external authority, the time and manner of carrying the legislation into effect, and the area over which it is to extend.
In Regina v. Amer et al. (42 U. C., Q. B. 407). Held, that the Crown by Prerogative right, before Confederation, could issue special commissions authorizing the holding of Courts of Oyer and Terminer and General Gaol Delivery in the case of the unorganized tracts of country or of the provisional judicial districts; and that the Prerogative power still exists, since the passage of the British North America Act of 1867.
It would appear by sections 12, 65, and 92 that both the Governor General and Lieutenant Governor can issue commissions of this nature.
In Phillips v. Eyre (22 L. T., N. S., 869). The Governor of Jamaica was held to be protected against an action in England by an act of indemnity passed by the Jamaica Legislature, and to which his own assent was necessary.
Cockburn, C. J., said: There is no ground whatever for saying that the Governor of a Colony cannot give his official consent to a legislative measure in which he may be individually interested. It might as well be asserted that the Sovereign of these realms could not give assent to a bill in Parliament in which the Sovereign was personally concerned.
G. H. Monk and Attorney Gen. Ouimet (19 L. C. J. 71). In this case the appellant, a mortgage creditor, contested the legal hypothec claimed by the Crown on the proceeds of a sale by the Sheriff, of certain real property of a late prothonotary of the Superior Court (Montreal). It was held by the Court that, by the laws in force in the Province of Quebec in such case, the Crown had a legal hypothec which attached to all the real property of that officer.
In a lease of Australian Crown lands, under a Leasing Act empowering the Crown to grant leases on condition that the lessee should occupy and improve the land as directed by the Act—held by their Lordships, that the Crown, by receipt of rent after notice of a failure to perform such condition, had waived the right of forfeiture. Davenport v. Regina (3 L. R. 3 App. Cas. P. C. 115; 39 L. T., N. S., 7).
In re The Bishop of Natal (11 Jur. N. S., part 1, p. 353).
Held by their Lordships of the Privy Council, that, after the establishment of an independent Legislature in a Colony, there is no power in the Crown by virtue of its prerogative to establish a metropolitan see or province, or to create an ecclesiastical corporation, whose status, rights and authority the Colony could be required to recognize. After a Colony or settlement has received legislative institutions, the Crown (subject to the special provisions of any Act of Parliament) stands in the same relation to that Colony or settlement as it does to the United Ringdom. Similar ruling in :
(Campbell v. Hall, 29 How. St. Trials 239).
In The Bankers' Case (14 How. St. Trials, 2), in which Williamson, Hornbee and others were plaintiffs, and His Majesty by his Attorney General was defendant, the plaintiff, Robert Williamson, instead of proceeding by Petition of right to the King, commenced his suit by exhibiting his Petition to the Barons of the Exchequer, setting forth his title as assignee to a portion of an annuity granted by the Crown:
Held, that a subject may have two remedies at common law to recover against the King : by Petition of right; or by monstrans de droit.
It appeared that the Bankers had loaned over one million of pounds sterling on the good faith of the Crown; and that the annuity in question was granted by letters patent from the Crown on the shutting up of the Exchequer in 1672 by Charles II.
The Attorney General raised the objection by demurrer, that a Petition to the Barons of the Exchequer was not a proper remedy. The Court of Exchequer gave judgment against the Crown on the demurrer; this Judgment was afterwards, on a writ of error, reversed in the Exchequer Chamber, Lord Somers holding that where the subject is in the nature of a plaintiff, his only remedy at Common Law to recover anything from the King, is to sue by Petition to the person of the King. That this was the only Common Law remedy for Crown debts. Lord Holt, dissenting, maintained that the plaintiffs had a remedy at Common Law, by Petition to the Barons of the Exchequer and also by Petition to the King, and said:
That “the remedies at Common Law to recover against the King were by Petition of monstrans de droit * * * * But first a Petition of right is not necessary in this case: not but that a man may proceed in this way, and admit himself out of possession if he pleaseth. But it is not necessary for two reasons:— “First, because a Petition of right is grounded always upon a matter of fact suggested, and not of record; and upon such a suggestion, there is a commission issued out of Chancery. But here the title is derived by letters patent which are of record; so that there is no matter of fact to be enquired of.......... “Therefore, why should there be a Petition of right, I take this remedy to be by a ‘monstrans de droit,’ and this remedy is to be sued at Common Law, when the party's title appeared of record.” On appeal, the House of Lords rendered judgment reversing the judgment of the Exchequer Chamber, and sustaining Lord Holt, and execution issued upon this judgment, in the shape of a writ commanding the Treasurers of the Exchequer to pay the annuity and its arrears.
In Attorney General v. Halling et al., (15 M. and W. 686) it was decided that in the Court of Exchequer as a Court of Revenue all kinds of equitable matter raised either on suggestion, petition, or plea, were dealt with and parties furnished with summary means of asserting their rights against the Crown. Similar decision in Attorney Geeneral v. Hallett (15 M. and W. 97).
Thomas v. The Queen (L. R. 10, Q. B., p. 31) was a case of a Petition of right under 23 and 24 Vict. c. 34, wherein the petitioner exhibited a complaint for the non-fulfilment of a contract made on behalf of the Queen by the authorized agent of the Crown.
It was held, on the authority of The Bankers' Case (14 How. St. Trials p. 2):—
That a Petition of right lies as a remedy at Common Law against the Crown in respect to the non-fulfilment of a contract made by the authorized agent of the Sovereign; and that the Act 23 and 24 Vict. c. 34, only governs the procedure in Petitions of right, but does not give any right of Petition where none previously existed.
Blackburn, J., who delivered the Judgment of the Court, said, “The framers of the Act appear to have considered its chief utility to consist in the applicability of its improved procedure to Petitions, on contracts between subjects and the various public departments of the Government.”