295
313
4
Practice firing must take place in time of peace on the permanent sites at which the For, in the case of heavy guns for coast defence, guns are required in time of war. they are fixed by electricity by a system of position finding which necessitates the gun being practised on its site in connexion with the position-finding station, and the ranges over which the guns are specially designed to fire.
It is therefore submitted by the War Department that a reasonable use of a battery) of heavy guns comprises practice firing in times of peace in order that both the guns and the gunners may be efficient for the defence of the Kingdom, and that it would be difficult to find sites for batteries so isolated as to remove all chance of damage to adjoining buildings.
The following is a copy of the head note to the case of Rogers v. Rajendio Dutt and others, 13 Moore's P. C. cases, p. 209.
In the case of damage occasioned by a wrongful act, though such as the law esteemns an injury, malice is not a necessary ingredient to the maintenance of an action.
It is essential to an action in tort that the act complained of should be legally wrongful as regards the party complaining, i.e., it must prejudicially affect him in some legal right. The fact that it will, however, directly do him harm in his interests is not enough.
An order issued by the Superintendent of Marine in his official capacity, to the Bengal Pilot Service, employed by the East India Company on the Hooghly river, prohibiting them from allowing a particular steam-tug to take any ship in tow of which such plots should have pilotage charge, made in consequence of what the superintendent deemed an exorbitant demand on the part of the owner of the steam- tug, whereby such owner was deprived for a time of the profits of being employed by the pilots in charge of ships going up or down the River Hooghly, in the absence of malice, alleged or to be inferred, is not such a wrong as would sustain an action by the owner of the tug against the Superintendent of Marine, the officer of the Govern- ment issuing such order.
Upon appeal the judgment of the Supreme Court at Calcutta maintaining the action, was reversed, on the ground that the Government had the same rights as a private individual in declining to employ the tug if the charges were too high.
In the action the court at Calcutta gave damages, the amount of which was under the appealable value prescribed by the Calcutta charter. As an important point of law was involved, special leave to appeal was upon petition granted.
In the course of Dr. Lushington's judgment, in this case, he remarked that the civil irresponsibility of the Supreme power for tortious acts could not be maintained with any show of justice if its agent were not personally responsible for them; and that in such cases the Government is morally bound to indemnify its agent, and it is hard on such agent when this obligation is not satisfied, but the right to compensation of the party injured is paramount to this consideration.
From the case of Feather v. the Queen (6 Best and Smith, p. 296), it appears that a subject sustaining legal wrong at the hand of a Minister of the Crown is not without a remedy, for, as the Sovereign cannot authorise wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.
The Law Officers are requested to favor Mr. Secretary Stanhope with their opinion.
1. Whether a Court of Law would have power under any, and if any, under what
circumstances.
(a.) To restrain the practice with heavy ordnance from Sandown Barrack
Battery; or
(b.) To award compensation to the owners of Seacroft House for damage
caused by the gun-fire.
(c.) And if so, whether as well for damage preventible by precautions on occupier's part, e.g., to window glass, or only for unpreventible damage, e.g., to the structure of the house.
2. Whether the fact that the house was built after the erection of the battery in
any way affects your opinion, and
3. Generally as to the powers and obligations of the Secretary of State with respect to heavy ordnance practice in time of peace. And whether any Legislation is requisite.
5
Opinion.
1. In our opinion a Court of Law would not restrain the practice with heavy ordnance from Sandown Barrack Battery, nor award compensation for any damage done by the use of the battery, under the orders of the Government authorities, for bond fide military purposes.
2. Our opinion is not affected by the fact that the house was built after the battery
was orected.
3. In our opinion no legislation is necessary.
Royal Courts of Justice,
15th May 1888.
(Signed)
RICHARD E. WEBSTER. EDWARD CLARKE,
Page 300Page 301
i
No comments yet.
Private notes are available after approval.