Queen v.

Ritchie, C.J., said:-" The claim set forth in the petition is a tort pure and simple, and it is clear beyond all dispute that a petition of right in respect of a wrong in the legal sense of the word shews no title to legal redress against the Sovereign. In contemplation of law the Sovereign can do no wrong, and is not liable for the consequences of her own personal negligence, so she cannot be made answerable for the tortious acts of her servants. The doctrine of 'respondent superior' has no application to the Crown, it being a rule of the Common Law that the Crown cannot be prejudiced by the wrongful act of any of its officers, for as it has been said long ago, no laches can be imputed to the Sovereign, nor is there any reason that the king should suffer by the negligence of his officers or by their compacts or combinations with the opposite party."

This was followed by the case of the Queen v. McLeod (i). There the suppliant brought his petition to recover damages for personal injuries sustained by him as a passenger upon a railway in Canada, the property of her Majesty, but under the control and management of the Minister of Railways and Canals of Canada under a Canadian statute, in consequence of the gross negligence of the management.

It was proved that the suppliant took a ticket and sustained the injuries complained of by reason of gross negligence in the management, but he was not held to be entitled to recover, upon the principle that the Crown is not liable for the torts of itself or its servants.

The contention that was raised on behalf of the suppliant, that the taking of a ticket constituted a contract between the suppliant and the Crown, for the breach of which he was entitled to recover, was also negatived by the majority of the Court, who considered it as rather in the nature of a toll, the acceptance of which by the Crown did not impose (i) 8 Supreme Court of Canada Reports, 216.

any contractual relations between the payer and the recipients.


It may not be uninteresting to notice here that when And also in the United States recognised, in 1855, the principle of the liability of the State to be sued by subjects, and constituted the Court of Claims for the hearing and determining of such actions, the jurisdiction of this Court was by the statute which created it (10 U. S. Statutes at Large, 612, ch. 122) expressly limited "to claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the Government of the United States," and that these words have been judicially held "to exclude by the strongest implication demands against the Government founded on torts" (per curiam Gibbons v. United States, 8 Wallace 269, at page 275), Gibbons and that for reasons very similar to those adduced above in support of the maxim that "the king can do no wrong." The most recent case in which this principle has been affirmed seems to be Langford v. United States (k).

v. U. S.

There under a claim that they belonged to the Government, an officer seized for the use of the Government buildings owned by a private citizen, and the owner sought to recover against the State for use and occupation.

He argued that as the State could do no wrong, the entry and occupation by the officer could not be regarded as a trespass, but as under an implied contract to pay.

The Court held that the act complained of was an "unequivocal tort," and that the State were consequently not liable.

They said, “The jurisdiction of the Court of Claims has received frequent additions, but the principle originally adopted of limiting its general jurisdiction to cases of contract remains. There can be no reasonable doubt that this

(k) 11 Otto 341: cited also as 101 U. S. Rep. 341.

Langford v. U. S.

limitation to cases of contract, express or implied, was established in reference to the distinction between actions arising out of contracts as distinguished from those founded on torts, which is inherent in the essential nature of judicial remedies under all systems, and especially under the system of the Common Law. The reason for this restriction is very obvious on a moment's reflection. While Congress might be willing to subject the Government to the judicial enforcement of valid contracts, which could only be valid as against the United States, when made by some officer of the Goverment acting under that authority, with power vested in him to make such contracts or to do acts which implied them, the very essence of a tort is, that it is an unlawful act done in violation of the legal rights of some one. For such acts, however high the position of the officer or agent of the Government who did or commanded them, Congress did not intend to subject the Government to the results of a suit in that Court. This policy is founded in wisdom, and is clearly expressed in the Act defining the jurisdiction of the Court, and it would ill become us to fritter away the distinction between actions ex delicto and actions ex contractu, which is well understood in our system of jurisprudence, and thereby subject the Government to payment of damages for all wrongs committed by its officers or agents under a mistaken zeal or actuated by less worthy motives."

The conclusions, then, at which we arrive are as follows: first, that the injury upon which the suppliant bases his claim must be a legal one, and secondly, that it must not be in the nature of a tort.

It must not, however, be supposed that because in the foregoing chapter we have shewn the remedy by petition of right to be inapplicable to only one class of legal injuries, viz., torts, that it is therefore applicable to all the remaining

test of

ones, as such a conclusion would be entirely erroneous. It cannot be too constantly borne in mind that the rights which the subject has against the Crown are entirely different to and independent of those which he has against The true his fellow-subjects; and further, that the test by which it whether can be decided whether any particular claim of a subject's a petition against the Crown can be maintained is not its legal sufficiency considered as a claim against a subject, but the foundation in precedent which it has considered as a claim against the Crown.


In the next chapter will be found enumerated the different instances so founded upon precedent in which the suppliant has been held to be entitled to proceed by petition of right.

What authorities cited.


mentary petitions omitted.




In this chapter will be briefly stated the various cases in which a petition of right can be maintained against the Crown under the Petitions of Right Act, 1860, and those for the restitution of property will be specially considered, for which purpose all the cases which have been decided both before and after the passing of the Act will be brought under review (a).

The expression "all the cases possibly requires some limitation.

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Petitions of right are to be found, as we have seen, on the Rolls of Parliament for the reign of Edward II. (b), and as many instances might have been taken from the Rolls of that and successive reigns to illustrate the present branch of the subject, the omission of them needs some explanation.

This omission may be justified on the following grounds: in the first place, however valuable such extracts might have been to prove the bare existence of "petitions of right" at that period, they would have been quite useless as authori

(a) As the Petitions of Right Act, 1860, did not alter the law, but only the practice, every decision before the Act is still an authority; Tobin v. Reg. 33 L. J. (C.P.) 205; 16 C. B. (N.S.) 310; 10 L. T. 762; 12 W. R. 838; 10 Jur. (N.S.) 1029.

(b) See cases collected, ante, p. 11, note 2.

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