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compensation arises directly under the Statute, cannot be met by saying that the King is not bound by legal fiction. The suppliants do not rely on any fiction, and they urge that a contract express or implied arises under the Statute. In the case of a contract for letting, followed by occupation, without the amount of rent having been fixed, an action for use and occupation would lie. The action is for damages for breach of agreement to pay for the use of the owner's property. Lord Ellenborough said, in The Dean and Chapter of Rochester v. Pierce, (1808) 1 Campbell, page 466: The action for use and occupation does not necessarily suppose any demise; it is enough that the defendant used and occupied the premises by the permission of the plaintiff." Where premises have been used or occupied hy the permission or sufferance of the owner, and there is not any demise or agreement at a fixed rent, the law will imply a contract or promise to pay to the owner a reasonable sum for such use and occupation (Marquis Camden v. Batterbury, (1859) 5 Common Bench (N.S.), page 808; 7 Common Bench (N.S.), page 864. Levy v. Lewis, (1861) 6 Common Bench (N.S.), page 766; 9 Common Bench (N.S.), page 872. Hellier v. Silleox, (1850) 19 Law Journal, Queen's Bench, page 295, explained in Churchward v. Ford, (1857) 2 Hurlstone and Norman, pages 116, 449, 450). This obligation to pay is a contractual one. The fact that the claim of the suppliants is for an unascertained amount of compensation or even a claim for damages for breach of contract would not be any objection to a proceeding by petition of right. The case of The Queen v. Doutre, 9 Appeal Cases, page 7-15, was a claim by petition of right for damages for breach of contract to pay the suppliant a reasonable sum for professional remuneration, and it succeeded, although the point was taken by the Attorney General of Canada in his defence that the suppliant was not entitled to proceed by petition of right. Again in The Windsor and Annapolis Railway Company v. The Queen and the Western Counties Railway Company, (1886) 11 Appeal Cases, page 617, Lord Watson, in delivering the opinion of the Board, said at page 613: "Their Lordships are of opinion that it must now be regarded 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. Section 8 of the Canadian Petition of Right Act (39 Victoria, chapter 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 any- thing as to the liability of the Crown for unliquidated damages resulting C 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 reason 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
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Blackburn rests the judgment mainly upon the 'Banker's 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 the 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 Thonus v. The Queen. (Law Reports, 10 Queen's "Bench, page 31)." There are also given in Mr. Clode's book on Petitions of Right, page 135, particulars of unreported cases in the Court of Appeal, where this Court has accepted as law the judgment in Thomas v. The Queen. Mr. Justice Peterson decided against the suppliants as he con- sidered that the present case was governed by In re à Petition of Right, 1915, 3 King's Bench, page (19. In that case the Crown took possession of an aerodrome near Brighton. It was justified in argument, upon the same ground as entering upon land adjoining the sea coast to dig trenches. The aerodrome was actually required for the conduct of hostilities in the air. The case was taken on appeal to the House of Lords and there compromised. But whether rightly decided or not, and it is of course still open to review in the House of Lords, it has no application to such a case as the present, namely, taking possession of lands and buildings for adminis- trative purposes. If the argument for the Crown in the present case be well founded, any lands and buildings required for offices or administrative purposes for any branch of the fighting services as War Office, Admiralty and Air Force may be taken by the Crown from the subject at the pleasure of the Executive without express statutory authority and without payment. I am of opinion that the judgment appealed from should be reversed and that judgment should be entered in favour of the suppliants that they are entitled to the relief sought by paragraph 4 of the Claim made by their Petition.
The judgment will be in accordance with the provisions of section 9 of the Petitions of Right Act, 1860.
The suppliants to have the costs in the Court below and of this appeal, and any costs paid under the judgment below to be repaid to the suppliants.
LORD JUSTICE WARRINGTON: In the month of May 1916, the Officers of the Crown being of opinion that for the purpose of securing the public safety and the defence of the realm it was necessary so to do took possession of a large hotel near Blackfriars Bridge called De Keyser's Hotel, and have remained in occupation since that time.
The question raised by this Petition of Right is whether the suppliants, the lessees of the hotel, are legally entitled to be paid any and what sum for the use of the hotel. The Crown insists that they are entitled as of right to nothing, but is willing that they should be paid er gratin such sum for direct loss or damage to property or business as the Commission, usually known as the Losses Commission may determine. It will be observed that this offer on the part of the Crown is confined to direct loss or damage to business or property, and does not extend to the making of any payment for the occupation of the premises analogous to the payment of rent or compensation for the use and occupation.
The hotel was originally taken for the accommodation of the Head- quarter Staff of the Royal Flying Corps, and was for some time occupied by them; it was afterwards occupied by the stuff of certain Departments of the War Office.
The Petition was heard by Mr. Justice Peterson on the 22nd March 1918. He held that the case was covered by the judgment of this Court In re a Petition of Right, 1915, 3 King's Bench, page 619), and dismissed the Petition. It is not disputed by the suppliants that under the Defence
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