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to say; but 'must be paid,' is only for the treasurer to say. Cro. El. 545, Babington's case."

Somers' judgment was eventually reversed by the House of Lords, but the latter's decision, though officially enrolled, was not provided with any grounds constituting what is termed the reason for decision (ratio decidendi) and was probably suggested by the necessity to put an end to a flagrant hardship without further delay. It was in the nature of a compromise; the plaintiff's receiving satisfaction only up to half the amount claimed. As to the law on the subject Somers' views were accepted in spite of the reversal, so that, for instance, Lord Blackburn, in giving his decision in Thomas v. the Queen (1874) 10 referred to Somers' opinion in the Bankers' case as binding. The net result was that claims against the Crown, instead of being examined and settled by direct proceedings in the administrative tribunal of the Exchequer, were finally directed into the channel of petition of right and subjected to limitations arising out of the political prerogative of the State.

In substance, Somers had not the slightest intention to suppress claims and to block avenues towards redress. On the contrary, he stated emphatically that the subject had the right, not only to claim restitution of property, but also redress and compensation in case of infringement of agreements. Only he assigned these cases to the jurisdiction of ordinary courts and thereby contributed indirectly in accordance with the maxim "The King can do no wrong" towards their treatment from the point of view of the responsibility of the officers rather than from that of the liability of the department or of the State at large.

This feature remained characteristic of the English Crown practice and makes it impossible to regard the method of petition of right as a mere formality. No doubt the high standard of judicial independence and equity which is universally recognized as a conspicuous attribute of the English Bench guarantees full impartiality of decision. But the sword of justice is suspended over the heads of the acting officer, while the Crown or State remains immune in principle, though it may sometimes grant assistance to its servants

714 How. St. Tr. 1, 26.

8 14 How. St. Tr. 1, 106.

Prof. Holdsworth thinks that the decision in the Lords stopped the development of the Petition of Right for more than a century. The History of Remedies against the Crown, 38 Law Quarterly Review, 141 (1921). I do not find any evidence as to fluctuations of the law in this respect.

10 L. R. 10 Q. B. 31, 44 L. J., Q. B. 9, 31 L. T. 439, 23 W. R. 176.

by way of grace. And secondly, as the King can do no wrong, there is no legal way of claiming compensation from the State in case of tort-that is in case of mistaken orders, negligent execution of duty, misunderstanding, delay, and the like. In all these respects individual officers may be prosecuted, only for personal misbehaviour, but there is no claim for compensation against the Crown. The leading case on this point is Tobin v. the Queen (1864).11

A man-of-war engaged in the suppression of the slave trade under Captain Sholto Douglas seized, on the coast of Florida, a merchant vessel under strong suspicion that the ship had been used for slave trading, the evidence being that it contained appliances for putting up a second deck under which the slaves were to be hidden. The ship ought to have been taken to St. Helen, but in view of the bad weather Captain Douglas used the power given by the Act of 5 Geo. IV, c. 113, s. 73, and sank the ship. An action was brought in which the owners tried to prove that the ship was engaged, not in slave trading, but in perfectly honest trade. The question as to whether Captain Douglas had, as a matter of fact, made a mistake or not is immaterial, the juridical problem was whether a petition of right would lie, that is whether the Crown as such could be made liable for compensation, and the judgment of the Court of King's Bench was emphatically against granting redress in this way. It held that the officer had acted within his legal power, and in using his discretion he was acting on his personal responsibility, so that any action for damages should have been directed against him and not, by petition of right, against the Queen. The economic aspect of this decision was that, supposing he had acted wrongly he would have been adjudged to pay some £20,000 compensation which he probably was quite unable to do. In other words, the remedy would be nugatory. Indeed in that very Act which enabled the officer to destroy a slave ship, there is a clause (s. 73) to the effect that the Crown may recompense or reinstate an officer to the value lost in damages which he might incur by committing a mistake. But such instance on the part of the Crown would have been a pure act of grace.

As a recent illustration of the insufficient character of a redress restricted to pursuits of agents and unavailing against the principal, let me cite the petition of right of Major Archer Shee (T. L. R. 1910; July 19th) 12 on behalf of his son, an Osborne cadet, who had been suspected of tampering with a money order and had been sent down

11 16 C. B. (N. S.) 310, 33 L. J., C. P. 199, 10 Jur. (N. S.) 1029, 10 L. T. 762, 12 W. R. 838.

12 The Times Law Reports, 1910, July 19.

by the administration of the school. Eventually he cleared himself, but there could be no talk of coming back to the institution from which he had been ignominiously removed, and the father demanded £10,000 compensation for the material and moral wrong suffered by the boy.

Sir Edward Carson, as counsel for the plaintiff, tried to put the case on the basis of breach of contract, pleading that a parent who entrusts his boy to a school enters into an implied contract with the school authorities in regard to their behaviour as well as to the discipline to which his son was to be subjected. The Attorney General, on the other hand, relied on the privileged situation of the Naval Authorities as regards cadets as well as other subordinates under their order. The Court of Appeal allowed the plaintiff to proceed by petition of right, but reserved general questions as to privilege. The Court held

(i) That the trial of the action should take place before the question of the prerogative of the Crown was argued.

(ii) The defence of the Crown did not put in issue the question of the prerogative and they gave leave to the Crown to amend their pleadings so as to raise the question of the prerogative as a point of law.

(iii) They gave the suppliant costs.

Unfortunately, the case was compromised by the concession of a substantial payment on behalf of the Admiralty. This half-way result is characteristic of the whole matter. While the Crown in Great Britain is holding on to a privileged position which was well in keeping with a view of the State as incommensurably above its citizens in a trial, this absolutistic doctrine is giving way as regards the institution of local government: although their authority is in reality a fractional manifestation of the political union of the people at large, it is not regarded as a kind of shield protecting these institutions from the consequences of their errors of commission and omission. A County Council is liable, in cases in which a Department of the Central Government would be immune. I will cite as an example

Morris v. Carnarvon County Council (1910).18

The plaintiff, a girl of six years of age, was a scholar at a school under the control of the defendants as the local education authority. Two of the rooms in the school were connected by a heavy door which swung in both directions. On November 4, 1908, the plaintiff

13 [1910] 1 K. B. 159.

arrived late at the school, and, contrary to the instructions given in the case of a child arriving late, the plaintiff went into the room where the other pupils were assembled for call over. She was told by the teacher to leave the room, and she proceeded to do so and went to the swing door. She opened it herself, and as she was going through, it swung back and injured one of her fingers, which subsequently had to be amputated. At the trial of an action to recover damages in respect of this injury, the jury found that the defendants were guilty of negligence in allowing the door to remain as it was, and, in answer to a further question, found that the door as originally constructed was not suitable for use by infants. On these findings, judgment was entered for the plaintiff. If a similar action had been brought against the Board of Education, it would have failed.

Some of the Dominions, e.g., the States of the Australian Commonwealth, have recognized the justice of extending the application of the common rule of law to disputes between individuals and the State as to wrongs alleged to have been committed by the latter. The laws of Victoria and of New South Wales open a way for claims of compensation for torts attributed to departments of the Government. A significant case came before the Judicial Committee of the Privy Council from Australia.1 The Hon. J. S. Farrell, Secretary for Lands of the Colony, was nominal defendant.

The government by their servants entered the lands of the plaintiff; they lit fires thereon-burned grass and fences-and conducted themselves so negligently that the fires spread. It was held that justice requires that the subject should have relief against a Colonial Government for torts as well as in cases of breach of contract or of detention of property wrongfully seized into the hands of the Crown.

The anomalous character of the situation is recognized on all sides15 "and the English Courts have admitted claims in tort against certain corporations wielding governmental duties," e.g., the Corporation of Trinity House which supervises lighthouses and pilotage, while they have denied a similar liability of other institutions of the same kind. A commission has been sitting for some years under the chairmanship of the present Chief Justice, Lord Hewart, for the purpose of drawing up proposals of reform. Nothing has been known as to the results of its labours.

Oxford University.

Oxford, England.

Paul Vinogrado ff.

14 Farrell v. Bowman (1887) L. R. 12 App. Cas. 643, 56 L. J., P. C. 72, 57 L. T. 318. Under New South Wales Act, 39 Vict., No. 38, the Government of the Colony is liable to be sued in Tort.

15 Cf. Robertson, Proceedings by and against the Crown.

16 Moore.

The Theory of Chancery in Protecting against the Cestui Que Trust One Who Purchases from a Trustee for

Value and Without Notice


'HILE So much has been written on the subject of purchase for value without notice in the law of trusts that little that is not a mere change of emphasis can be contributed to prior discussions, some good may nevertheless result from stressing known factors of the situation differently.

The first thing to do in confronting the subject would seem to be to scrutinize one or two terms carefully. By this is not meant that the words "purchase," "value" and "notice" must each be defined, though each word presents difficulties, but that such a vague expression as "equal equities" must be given definite mental evaluation and the relation of "equal equities” and of "estoppel" to the trust concept must be delimited. Moreover, supposedly fundamental postulates, namely, that "where equities are otherwise equal, prior in time is prior in right" and that "as between equal equities, the legal title shall prevail," even though one equity is prior in time to the other, must be tested in their operation to see whether they deserve full or any acceptance.

In the phrase "equal equities" it is the word "equities," as distinguished from the word "equal," that seems to cause greater difficulty of definition, though perhaps not of application. We can understand the "equity" of a cestui que trust or of any other person to whom the chancellor will award one of his remedies. In that sense, the equity is the right for which that cestui is privileged to get relief in Chancery. But what is meant by the "equity" of an innocent purchaser for value who gets the legal title? By the theory of our doctrine of merger, if it can be supposed, as on principle it cannot, that with the legal title he gets an equitable interest which the chancellor will affirmatively assist, that equitable interest is swallowed up in the legal and ceases to exist. As a matter of fact, it would seem that such innocent purchaser for value does not get the equitable interest lost by the cestui when the legal title is conveyed, but instead gets an unencumbered legal title, the outstanding equitable interest

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