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the Act of 1812. It was contended that in the interests of justice (in the popular sense) the possession of the Crown must be "deemed "to be acquired under the Act of 1812. The Suppliants might have raised this contention, relevantly if erroneously, upon a motion for a writ of mandamus to the Army. Council to take the necessary proceedings for an assessment of compensation, but I believe there is no authority for holding that in the absence of such proceedings as of an award of compensation thereunder, there is any debt due from the Crown to the Suppliants which one of His Majesty's judges can direct to be paid out of the Exchequer. To say that the Ministers of the Crown must he "deemed " to have proceeded under the Act and that a liability results as matter of law, is to set up a ground of claim founded upon a legal fiction. As between subjects this is permissible. As between subjects and the Crown the rule seems to apply which was laid down by the unanimous decision of the judges in Sheffield v. Ratcliffe in 1616 (Hobart, 339; Jenkins, 287) that the King is not bound by legal fictions.
The decision of this Court in the Shoreham case is, I think, opposed to all the contentions of the Suppliants under the Acts of 1842 and 1914.
To dispose of one remaining question in the case, it is necessary to messary to consider whether, if the Suppliants had rights and no effective remedy, under their main contentions, and could maintain a claim analogous to that which arises between subject and subject in respect of a breach of statutory duty which causes damage. Examination of the authorities upon actions on the case (see Edgcombe v. Dee, Vaughan, 101; Miller v. Taylor, Todd's Practice, 6th Edition, page 963; Todd's forms, 6th Edition, page 379), show that such a claim is a pure claim for damages for a wrong, and could not be maintained against the Crown.
On the whole, I am of opinion that the case of the Crown is made out, that the Suppliants have not the rights for which they contend, and that if they had in fact had the grievance complained of under the Defence Act, 1842, there is no jurisdiction in any judge to redress it by a judgment on a Petition of Right.
I sincerely regret the difference of opinion which has obliged me to deal at length with a subject of much complexity and, as I think, of great importance with regard to national defence and to the relative rights of subject and the Crown.
Sir JOHN SIMON: Then, my Lords, the Appeal will be allowed with costs. As regards the form of the declaration, I do not quite follow what your Lordship means by referring to the Petition of Rights Act. Do I understand that the relief referred to in the declaration will be limited to Head No. 4 of the Petition of Right?
The MASTER OF THE ROLLS: Yes. The form will be: The Judgment appealed from is reversed and the Appeal is allowed; Judgment entered in favour of the Suppliants, that they are entitled to the relief sought by paragraph 4 of the claim made by their petition.
Sir JOHN SIMON: I think I ought to point this out and your Lordships will decide. Apart altogether from the rent for use and occu- pation in the narrow sense, there is arising, of course, a very serious claim for compensation in connection with the re-instatement of the premises. They have all been pulled down. I want to be sure whether your Lordships' declaration is intended to cover that or is not intended to cover that.
The MASTER OF THE ROLLS: It is only intended to cover a fair rent for use and occupation. What circumstances are to be taken into account in arriving at that is a matter on which we do not at the moment pronounce any opinion. Of course, the Judgment will have to be in accordance with the provisions of Section 9. You will be entitled to the
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costs in the Court below and in this Court, and any costs paid under the Judgments in the Court below will be returned.
me.
Sir JOHN SIMON: Yes. There are just two other matters which are matters of costs, which I wish to mention. First of all, on the subject of these searches, your Lordships will remember that the book which has been so much used is in itself only a residuum of a much larger search, but before any search was undertaken by the Crown there had been an expensive, and I think a very fruitful, investigation made by those instructing It was all preliminary to what was subsequently done and when, at a later stage, your Lordships directed that the search should be made with the help of the Crown Officers, the first thing they did was to apply to us for our results up to date, and I cannot doubt that has been of great assistance to them I should like to have a direction that the costs which were incurred in that preliminary search on our part should be included in our costs here.
The MASTER OF THE ROLLS: What is the other point?
Sir JOHN SIMON: The other point is this. I do not know what your Lordships think of it, but do your Lordships think that, having regard to the material which had to be used here, it was in the circum. stances reasonable, and, indeed, only proper, that three counsel should have been employed by the Suppliants? We are fighting here a lattle which covers a good many people's cases, and there has been a very great deal of matter which has been gone through by my learned friends as distinguished from the argument that has been presented here, and I ask your Lordships to say this is a proper case for three counsel. Of course, the Crown had a large number of counsel. Those are the two points I wanted to mention to your Lordships.
The MASTER OF THE ROLLS: What do you say, Mr. Austen- Cartmell ?
Mr. AUSTEN-CARTMELL: With regard to the costs of the searches, my impression is that, to a certain extent, the search that was made prior to the Crown's search was of assistance to the Crown, that is to say, the searches put Mr. Boyd, our Record Agent, on a certain track, but a great deal of the work had to be done over again, and would have had to be done anyhow. Does your Lordship see your way to making an order in this form, that my friend's clients should be allowed the costs of such searches as were utilised for the service of the Crown in making its search?
The MASTER OF THE ROLLS: Suppose you put it this way-- which was of any use either to the Crown or to your opponents?
Mr. AUSTEN-CARTMELL: I do not mean of use at the trial or which supported the case at the trial, but I mean what was useful to the Crown in actually arriving at the document they put in.
The MASTER OF THE ROLLS: Will not the proper plan be this, not to give a direction that these costs should be taxed item by item in the ordinary way of a taxation, but that the costs of the preliminary search are to be allowed and taken into consideration by the taxing master in the item of "Instructions for Brief."
Mr. AUSTEN-CARTMELL: If your Lordship pleases.
The MASTER OF THE ROLLS: Then he will allow such a sum as he may think proper. Of course, to justify the allowance and to show what the Suppliants claim to be entitled to, they will have to bring in items before the Taxing Master.
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