Petition

Judgment is given in the ordinary way. But the "execution" of the judgment is quite another matter. The courts cannot decree execution against the Crown and its servants. The Act of 1861 provides, however, that, where judgment is in favour of the sup pliant, it shall be "certified" by the court to the Treasury which shall then satisfy it out of the public funds. In practice the Treasury never fails to satisfy the judgment of the court. Whether, if it failed so to do, it could be compelled by the courts, by a Writ of Mandamus, to satisfy it as a "statutory duty" is an open question.

Scope of the Remedy.

It remains to consider the scope of this remedy against the Crown. For a long time it appears to have been held, although the matter is not free from doubt, that it would only lie to recover possession of real or personal property of the subject in the hands of the Crown. But in the leading case of Thomas v. the Queen (1874) 44 L.J.Q.B. 9, the courts held, relying on the somewhat doubtful authority of the Bankers' Case, that a Petition of Right would lie for unliquidated damages for breach of contract. This decision was really revolutionary. It has since been held that it will also lie for the recovery of duty overpaid to the Revenue authorities (In re Nathan, 1884, I2 Q.B.D. 461), for compensation for the requisitioning of premises for national defence (The De Keyser Case, 192o, A. C. 5o8), and for such "implied contracts" as "Quantum Meruit" and "Money had and received." Petition of Right will, however, never lie to enforce a contract or service with the Crown, whether civil or military, for it is the king's prerogative to determine such con tracts at his pleasure (see PREROGATIVE).

On the other hand, the scope of the remedy is subject to con siderable limitations of which the most important is the exclusion of any redress against the Crown for "wrongful," i.e., tortious acts such as, for example, negligence, trespass or the infringement of a patent. This was long ago settled, if indeed it was ever doubted, in the case of Tobin v. the Queen, 33 L.J.C.P. 199, to go no further back. The only remedy open to the subject in such a case is to sue, in an ordinary action, the particular officer of the Crown who was responsible for the wrongful act or omission. Great play had been made by writers like Prof. Dicey with this liability of the individual officer to answer to the subject, when wronged, for his acts, even though committed in an official capacity, and they institute a comparison between this "rule of law" and the comparative rightlessness of the subject, as they regard it, in the matter of suing an official in respect of his official acts, in countries like France and Germany with their system of "administrative law." It would take too long to discuss this

aspect of the matter here; it is sufficient to say that the subject is, as a matter of fact, far better protected in France and Ger many; under the law of those countries the State, unlike the Crown in England, is responsible, and can be sued in the ordinary way for the torts of its servants. Moreover, in England the rule of respondeat superior by which a person wronged can sue the employer, whether an individual, a partnership or a company, for the wrongful acts of his servants does not apply in the case of torts committed by the servant of a Government department. In such a case not only can the Crown, i.e., the State, not be sued but neither can one sue the immediate superior of the servant committing the wrongful act. The postmaster general, for ex ample, is not liable for the negligence of a Post Office engineer (Bainbridge v. the Postmaster General, 1906 1 K.B. 178). Fur ther, the servant of the Crown, although personally liable, has the advantage, as against the plaintiff, of a "Statute of Limita tions" of a very peculiar and invidious kind, known as the Public Authorities Protection Act of 1893, which requires all actions for tort against "public authorities"—a term which has been held (cf. The Danube, 1921 P.D. 183) to include servants of the Crown as well as local authorities—to be brought not, as in the case of an action between subject and subject, in six years but in six months. This Act is peculiar in every respect : it compels the plaintiff to bring his action not, as in the case of ordinary Statutes of Limitation, within a fixed period from the date when a "cause of action" arose, e.g., the resulting damage, but within six months from the date of the tortious act which caused the damage. The result of this is, often, to extinguish, in spite of all vigilance on the part of the plaintiff who has suffered injury, any right of action altogether, for by the time the damage has made itself evident he may be too late (see Freeborn v. Leeming 95 L.J.K.B. 114). And if he is a day too late in bringing his action, he not only loses it but is subjected by the Act to penalties, in the mat ter of special costs, not known to the common law.