Action.
18
Sect. 2.
The Crown.
committed by the King personally, could not in law be attributed to him, so it must be assumed that he did not authorise its commission by one of his servants.
Petition of Right.
If, however, the subject's cause of complaint be an injury to, or deprivation of, property, or the breach of a contract made by, or on behalf of, the Crown, redress may be sought by means of the statutory remedy known as a petition of right against the King himself or the particular Government department concerned (m).
There are, however, certain colonial statutes which expressly give a right of action against the Crown (n).
Where the Crown sues, a subject may apparently plead a cross-claim or set-off (o).
Sect. 3.—Crown servants.
Crown Servants.
23. Crown servants and officers of public departments may sue and be sued like any other persons; but their liability in tort and contract is governed by different rules. A Government official or servant is liable for torts committed or expressly authorised by him as such official or servant, but not for torts resulting from the negligence or unauthorised acts of his subordinates, for such subordinates are not his servants, but those of the Crown (p). Again, a public servant cannot be made personally liable on a contract made by him on behalf of the Crown (q), nor can the public revenue be reached by means of a suit against him. This subject is treated further elsewhere (r).
Sect. 4.—Foreign Sovereigns and Governments.
Not liable to be sued.
24. A foreign Sovereign or State may enforce their private rights by action in our Courts (s); but they cannot be sued therein against
- (m) See title Crown Practice; Thomas v. The Queen (1874), L. R. 10 Q. B. 31; Windsor etc. Rail. Co. v. The Queen and the Western Counties Rail. Co. (1886), 11 App. Cas. 607; Kinloch v. Secretary of State for India (1882), 7 App. Cas. 619.
- (n) See New South Wales Act (39 Vict. No. 38) and Farnell v. Bowman (1887), 12 App. Cas. 643; Straits Settlements Crown Suits Ordinance, 1876, s. 18 (2), and Attorney-General of Straits Settlements v. Wemyss (1888), 13 App. Cas. 192. See also Hettihewage Siman Appu v. Queen's Advocate (1884), 9 App. Cas. 571.
- (o) See Hettihewage Siman Appu v. Queen's Advocate, supra.
- (p) Lane v. Cotton (1701), 1 Ld. Raym. 646; Whitfield v. Lord Le Despencer (1778), 2 Cowp. 754; Raleigh v. Goschen, [1898] 1 Ch. 73; Bainbridge v. Postmaster-General, [1906] 1 K. B. 178. But the ordinary rule as to the liability of a principal for his agent's negligence applies to public bodies which are not Government departments; see Gilbert v. Corporation of Trinity House (1886), 17 Q. B. D. 795; Wheeler v. Commissioners of Public Works, [1903] 2 I. R. 202. See sect. 460 of the Merchant Shipping Act, 1894 (57 & 58 Vict. c. 60), as to actions against the Board of Trade for wrongfully detaining ships; and see also Tozeland v. West Ham Union, [1907] 1 K. B. 920, as to the liability of guardians to paupers under their care.
- (q) Dunn v. Macdonald, [1897] 1 Q. B. 555; Macbeath v. Haldimand (1786), 1 Term Rep. 172; Gidley v. Lord Palmerston (1822), 3 B. & B. 275; Palmer v. Hutchinson (1881), 6 App. Cas. 619. The remedy is by petition of right against the department in question (Churchward v. The Queen (1865), L. R. 1 Q. B. 173). As to certain officials and public bodies, who, though acting as agents of the Crown, have power to contract as principals, and may therefore be sued on a contract, at any rate to obtain a declaratory judgment, even if execution cannot issue against them, see Graham v. Commissioners of Works, [1901] 2 K. B. 781; Dixon v. Farrer,(1886), 18 Q. B. D. 43.
- (r) See titles Constitutional Law; Public Authorities and Public Officers.
- (s) United States of America v. Wagner (1867), 2 Ch. App. 582; Emperor of
