of the Crown and by necessary presumption. 1 the Zamora (pre), Lord Parker expressed his that the municipal law of this country does not give opinion compensation to a subject when land or goods are Magnitioned by the Crown." appeared in the old ones with regard to necessary
The
albru view applente cited statutes and text-books on
upon land for defence. Commael for
the Bush as purveyance, the requisition of ships, and the subjects requisition of
of vehicles, and relied upon a
documents produced from the Record Ofte of
Instance appeared in
No apon any clalta such as was made in the present came, or thrae documents of payment Indeed of the occurrener fact that when Prerogative right existed welch
such &
It was the been abolished by statuto, they in sox e cases carried had with them at the time of their abolition customary or common law rights on the
certain subject to receive payment in respect of the exercise Part of the the
Prerogalle
TE the 00 part of the subject could, he this Lordship) origin of every such right believ
eved. be traced. The course of events in such Case was well illustrated by Prerogative with regard to the impressment of ships.
the history of the
Royal Lordship described the Eistory press-marat of ships under the
B
of Ibo ing+ Ed.l.
Vol III. pp. 45, 68a, sent. Rolls, Vol. II. 173; ing to Selden's "More Clausum » Prerogative,
... and the Pa
553, 554, and Vol. IV.,
and, occupation of the supplants' premises by the Crown continuing, said that asuming the to be an occupation by virtue of the Royal Prerogative, he was of opinion that such Itself create or raise the presumption of a right la the an occupation did not of supplants to have compensation amessed The reasons for this opinion extended to claims in to +bom. repect of an occupation under the Defence of the Bealm Consolidation Act, 1914, section 1. Payment was left at the discretion of the Commissioners.
THE DEFENCE ACT OF 1842,
There remained the claim of the suppliants under the Defence Act, 1942, Section 1, rubeection 2 of the Defence of the Realm Consolidation Act, 1914, which empowered his Majesty in Council to provide by rogn-' lation for "the suspension of any restrictions on the acquisition or user of land, or the exercise of the power of making by-laws, or any other power under i the Defence Acta, 1849 to 1875, or the Military Lands Acta. 1891 to 1993." No regulation had been made · to suspend the restrictions on the soquisition or wer of land under the several Acta mentioned in the section- Regulation 2, on the other hand, gave an unqnaüfted
Anthori-
power to the competent naval and for Ju
to take possession of land poses of public safety or the defence of the realm
and buildings dartag the
No regulations made under the statute of 1914 parported to create suy right to com- pensation in respect of the occupation of land, or to provide any means of assessing compensation for ands taken in place of the means provided in the Act of 1842. It was contended that in the
interesta senss) the possession of the to be acquired under the
of justice (in the ped
Crown must be
Act
of 1842. The suppliants might have raised this contention relevantly, if erroneously, upon a motion for writ of mandamus to the Army Council to take the BROOMALY proceedings for an assessment of com- pensation. But there was no
Shake
the absence of such
for bolding
award of compensation thard an
there was
any debt due from the Crown to the suppliante which one of his Majesty's Judges could direct to be paid out of the Exchequer. To that the Ministers of the Crown must be deemed
to have proceeded under the Act was to set up a ground of claim founded upon a legal Betion. As between subjects and the Crown, the rule second to apply which was laid down by the unanimous decision of the Judg
Ratcliffe (Hobart, 337: Jenkins, 287) In 1616 that dges in Sheffield the King was not bound by legal actions.
To dispose of the one remaining question in the case it was perossary to consider whether, if the sup- plants had rights and no effective remedy under their mala contentions, they could maintain a claim analogous to that which Lrose between subject and subject in respect of a breach of statutory duty which caused damage. Such a claim was a pure claim for damages for a wrong, and could not be maintained against the Crown
On the whole, he (his Lordship) was of opinion that the case of the Crown was made out that the suppliants had not the rights for which they con- tended, and that if they had in fact had the grievance complained of under the Defence Act, 184%, there was to jurisdiction in any Judge to redress it by a judgment on a petition of right. Ho regretted the difference of opinion with the other members of the Court.
Bolicitors.-Messrs. Miller and Smiths; the Tree- sury Solicitor; Messrs. Lawrance, Webster, Messer, and Nicholls. *.* Other Law Report will be found on page 6.
348
!