to be held responsible for the dicta by various judges to a similar effect which are to be found scattered through the Reports. Such being the state of affairs in 1874, there was sufficient authority, for the Court of Queen's Bench, possibly impressed with the convenience of dealing in this manner with such claims as Mr. Thomas then pressed against the Crown, and to a certain extent perhaps influenced by a consideration of the hardship which would be inflicted upon suppliants by refusing them relief, found it possible to decide that a petition of right would lie to recover unliquidated damages for breach of contract from the Crown. sequent to Whatever doubt may exist as to the reasoning upon Cases subwhich the decision is based, it would be wrong to suppose Thomas v. Reg. that the decision itself has been received with anything like disfavour or hostile criticism in superior Courts; on the contrary, it has been accepted as law by the Court of Appeal and the Judicial Committee of the Privy Council. Thus, in the case of Kinloch v. The Queen (z), the parti- Kinloch v. Reg. culars of which we have already given, Lord Justice Cotton, in giving judgment, thus recognised the subject's remedy for a breach of contract by the Crown: "It would be right," he said, "to state, in the first place, what it was that Mr. Kinloch must shew in order to succeed. He must shew either that the Crown had property of his in its hands, or in the hands of its agents, or that there was some contract which entitled him to relief. And similarly, De Dohsé v. The De Dohsé v. Reg. Queen (a) and Eyre v. The Queen (b), which were both cases Eyre v. upon contracts, both came before the Court of Appeal with- Reg. out the subject's right of petitioning in contract being questioned. (z) Times, March 22, 1885. (a) Divisional Court, Times, 3rd June, 1885; Appeal Court, Times, 3rd March, 1885; House of Lords, Times, Nov. 25, 1886. (b) Times, June 8, 1886. Reg. v. Doutre. Windsor, etc., Railway v. Two cases had recently come before the Privy Council on appeal from Canada in which it has been recognised. In the first, the suppliant, who was a member of the Quebec Bar, sought to recover from Her Majesty, upon a quantum meruit payment for services rendered upon a retainer by the Canadian Government, to represent them at a certain Fishery Commission, sitting at Halifax; the only point discussed was whether the suppliant's status as a barrister prevented him from suing for his fees, and it was tacitly admitted that if it did not, he could recover on such a contract between himself and the Crown (c). In the second case (d) the question as to the liability of the Crown on contract was distinctly raised. were as follows: : The facts The Government of Canada, by an agreement dated the 22nd of September, 1871, undertook to give the Windsor Reg., &c. and Annapolis Railway Company the exclusive use of the Windsor Branch Railway, and also running powers over the trunk line from Windsor Junction to Halifax for the term of twenty-one years. The abovementioned company in pursuance of that agreement entered upon and worked the Windsor Branch Railway until the 1st of August, 1877, when the Government Superintendent of Railways took possession of the line and put an end to the occupation of the company, subsequently leasing it to another company. One of the questions for the decision of the Privy Council was, whether the Crown was liable for this breach of contract; upon this point the Judicial Committee said as follows: "Their Lordships are of opinion that it must now be re (c) The Queen v. Doutre, L. R. 9 App. Cas. 745. (d) Windsor and Annapolis Railway Company v. The Queen and the Western Counties Railway, L. R. 11 App. Cas. 607; 55 L. J. P. C. 41. garded as settled law that, whenever a valid contract has been made between the Crown and a subject, a petition of right will lie for damages resulting from a breach of that contract by the Crown." "Sect. 8 of the Canadian Petition of Right Act (39 Vict. c. 27, Dom. Parlt.) contemplates that damages may be recoverable from the Crown by means of such a petition; and the reasons assigned by Lord Blackburn for the decision of the Court of Queen's Bench in Thomas v. The Queen appear to their Lordships necessarily to lead to the conclusion that damages arising from breach of contract are so recoverable. A suit for damages in respect of the violation of contract is as much an action upon the contract as a suit for performance; it is the only available means of enforcing the contract in cases where, through the act or omission of one of the contracting parties, specific performance has become impossible. In Tobin v. The Queen, Chief Justice Erle, whilst affirming the doctrine that the Sovereign cannot be sued in a petition of right for a wrong done by the executive, took care to explain that claims founded on contracts and grants made on behalf of the Crown are within a class legally distinct from wrongs." "It was argued for the respondent that in Thomas v. The Queen the claim of the suppliant was not for damages, but for a pecuniary consideration alleged to have been due in terms of the contract, and consequently that it was unnecessary for the Court to decide anything as to the liability of the Crown for unliquidated damages resulting from breach of contract. But Lord Blackburn, in that case, deals with the suppliant's petition as alleging certain breaches of promises made to the suppliant on behalf of the Queen; and his reasoning appears to this board to be quite as applicable to a claim of unliquidated damages for breach of contract as to a claim for the contract price. Lord Blackburn rests Canadian cases. the judgment mainly upon the Bankers' Case, which was a suit for annuities granted by letters patent under the Great Seal; but his Lordship at the same time points out that from the time of Lord Somers there had been repeated expressions of opinion by eminent judges in favour of a view that a petition of right lay against the Crown on a contract. It is unnecessary to cite these opinions, which are all collected in Thomas v. The Queen. Their Lordships may, however, refer to the accurate exposition of the law given by the late Cockburn, C.J., in Feather v. The Queen :—“ We think it right to state that we see no reason for dissenting from the conclusion arrived at by the Common Pleas in Tobin v. The Queen. We concur with that Court in thinking that the only cases in which the petition of right is open to the subject are where the land or goods or money of a subject have found their way into the possession of the Crown, and the purpose of the petition is to obtain restitution, or, if restitution cannot be given, compensation in money; or when a claim arises out of a contract, as for goods supplied to the Crown or to the public service." Not only has the principle been approved, but it has also been very largely acted upon both at home and abroad. Thus in Canada the following cases have been decided :— A contractor has been allowed to petition for the price of extra work under a contract (e); a barrister to proceed upon a quantum meruit for his fees (ƒ); a Crown lessee of flyfishing disturbed in his enjoyment thereof, on his covenant for quiet enjoyment (g); a contractor with the Govern (e) O'Brien v. The Queen, Canada S. C. R., vol. iv., p. 529 (1881); Jones v. The Queen, Canada S. C. R., vol. vii., p. 570 (1883); Isbister v. The Queen, Canada S. C. R., vol. vii., p. 696 (1884). (f) The Queen v. Doutre, Canada S. C. R., vol. vi., p. 342 (1882). (g) The Queen v. Robinson, Canada S. C. R., vol. vi., p. 52 (1882). ment for the official printing for damages for a breach thereof (h). And in England most of the claims between Government and the various contractors for public works are settled in this way, as the return "From the Lords Commissioners of Her Majesty's Treasury of every Petition of Right which up to the Date of the Return (2) has been Presented to and fiated by her Majesty under the Act 23 & 24 Vict. c. 34," shews. cannot be But although the Crown is liable in contract, a subject A tort cannot, it is submitted, treat a wrong so as to make the treated as Crown liable: he cannot, that is to say, frame his tort as a breach of contract, and so recover. A very ingenious attempt was made lately in America in this direction. It should be first stated that claims against the Government in America are adjudicated upon by the Court of Claims, and that as the only claims which the Court can entertain are cases of contract, the position of a suppliant in America and England is very similar. This being so, a suppliant, a private citizen, the owner of certain buildings which had been seized by a Government officer for the use of the Government under a claim that they belonged to the Government, sought to recover against the State for use and occupation. In support of this claim he used the following very ingenious argument: the maxim that the State can do no wrong is as true in America as the maxim that the king can do no wrong is in England; the action, therefore, of the Government officer cannot be a trespass; if it had been, undoubtedly the claimant could not recover. But if it is proved that the Government are in possession a breach of contract. |