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In re Tufnell, claiming da
claimed a declaration that the forfeiture by the Crown of a certain gale was illegal and of no effect, or, that if valid, he might be relieved against it upon certain terms, and that the gaveller might be restrained by injunction from granting the gale to any one else in the meantime.
A few years later we find a petition in the Chancery Division for compensation and damages for breach of contract (p). The facts of this case were as follows:
The suppliant had been employed by the Crown in the Army Medical Department of the service from the year 1841 to the year 1874, in which year he was retired upon half-pay compulsorily. The suppliant's contention was that he could not be so retired, inasmuch as in the year 1846 he had applied for and obtained from the Secretary at War the permanent appointment as doctor to the military provost prison at Dublin, and that the contract between himself and the Crown was that he should retain the medical charge of the military prison at Dublin during his life, or until incapacitated by infirmity or misconduct.
Under these circumstances the suppliant presented a petition intituled in the Chancery Division of the High Court praying, "that her Majesty might do what was just and right, and cause the suppliant to be compensated and indemnified for the loss, damage, or injury sustained by him, and for further relief."
The Attorney-General demurred on the ground that every officer holds his post absolutely at the pleasure of her Majesty; and, secondly, that under the Mutiny Act there is no power to constitute or to appoint a person to any office which is permanent.
The Court allowed the demurrer in a judgment which is chiefly interesting as laying down the principles upon
(p) In re Tufnell, L. R. 3 Ch. D. 164; 45 L. J. Ch. 731; 34 L. T. 838; 24 W. R. 915.
which military officers hold their commissions from the Crown; it is given here as an instance of one of those miscellaneous claims which have been brought in and entertained by the Chancery Division of the High Court.
The next case (g) was one in which the suppliant claimed Cooper a declaration that he was entitled to certain compensation, claiming and that it was payable to him. Here the facts were as damages follows:-The suppliant had from the year 1844 to the claration year 1865 been employed in her Majesty's Civil Service; for the first nine years of his service, that is from the time of his entering until the year 1853, he had occupied a post which in the latter year was abolished, and he was thereupon appointed to another but less lucrative post, which he held until the year 1865, in which year he applied for and obtained permission to retire from her Majesty's service on superannuation. It was upon the amount of the superannuation allowance that the difficulty arose.
The Commissioners of the Treasury had fixed it at £65 2s., which was twenty-one sixtieths of the salary he had received in his second post. The suppliant claimed compensation for the loss of office in 1853 and 1865, and also that his superannuation allowance should be calculated and paid to him, not upon the basis of the salary which he had received in his last office, but upon the basis of that salary, plus the compensation allowance which he contended he was entitled to receive in virtue of the abolition of the previous office.
Under these circumstances the suppliant presented his petition setting out the facts, and praying "for a declaration that on the abolition of his office in 1853 he was entitled to compensation for loss of office; or, had his service. been continuous, he was entitled to compensation allow
(q) Cooper v. The Queen, L. R. 14 Ch. D. 311 (1880); 49 L. J. Ch. 490 42 L. T. 617; 28 W. R. 611.
ance for loss of emoluments, and that when he was removed from office in 1865 he was entitled to compensation for such removal. That it might be declared that the annual sum awarded to him in 1865 by way of superannuation allowance should have been calculated on an income which included the value of such compensation allowance as might be ascertained to have been due to him in addition to the salary of his then office from 1853 to 1865. That the amount due in respect of the difference might be ascertained and declared payable to him."
The Attorney-General, on behalf of her Majesty, demurred generally. On the argument, the demurrer was supported on the ground that the decision of the Commissioners was final; while it was argued for the suppliant, that granted that the Commissioners could not be compelled to grant a pension, yet if they had granted it and made an obvious arithmetical or other mistake, the Court could rectify the error.
In the result the Court upheld the demurrer, and in so doing Vice-Chancellor Malins made the following observations, which from their applicability to a large class of the community it has been thought worth while to reproduce here:-"I am clearly of opinion that no claim for superannuation allowance under 4 & 5 Wm. 4 c. 24, and 22 Vict. c. 26, can in any case be enforced by the civil tribunals of the country, and that the civil servants must rely upon the decision of the Lords of the Treasury, who will say whether they will take the claim into their favourable consideration or not. But whether they do or do not err in their decision, it is made by the Act of Parliament absolutely binding and conclusive. There is no excuse, therefore, for having brought this matter before the Court, and the demurrer must be allowed with costs."
This was followed by the case of Re Gosman (r), in which Re Gosman. a declaration was sought that the suppliants were entitled to certain leaseholds, and Kinloch v. The Queen (s), in which Kinloch v. Reg. the suppliant claimed to be entitled to certain sums of money out of the Banda and Kirwee Booty, but the circumstances of these cases having been already given, it has not been thought necessary to repeat them here.
Lastly, in the Northam Bridge Company v. The Queen (t), Northam Bridge Co. certain tolls were unsuccessfully sought to be recovered from v. Reg. the Crown by a petition presented in the Chancery Division of the High Court.
(r) L. R. 15 Ch. D. 67; 49 L. J. Ch. 590; 42 L. T. 804; 29 W. R. 14; and 17 Ch. D. 771.
(s) Weekly Notes, 1884, p. 80; and 1882, p. 164; Times, Nov. 22, 1885. (t) Times, 24th November, 1886.
PETITIONS IN THE ADMIRALTY DIVISION, AND FOR
By 27 & 28 Vict. c. 25, s. 52, a petition of right under the Petitions of Right Act, 1860, may, if the suppliant thinks fit, be intituled in the Probate, Divorce, and Admiralty Division, in case the subject-matter of the petition or any material part thereof arises out of the exercise of any belligerent right on behalf of the Crown, or would be cognizable in a Prize Court within her Majesty's dominions, if the same were a matter in dispute between private per
By 40 & 41 Vict. c. 59, s. 20, a petition may be brought by any person claiming to be interested in any colonial stock or dividend thereon to which that Act applies.
No proceedings appear to have been taken at present under either of these Acts.