044-NLR-NLR-V-20-DIAS-v.-THE-ATTORNEY—GENERAL.pdf
( m )
Prestsnl: Eimis J. and Shaw J.
DIAS v. THE ATT< )BNEY-GENERA L
408—D. ('. Colombo, 46.16?.Riots—Martiallaw—Motor cars commandeered by theMilitary—Action
for compensation—Prerogative of Ihc Crown to rcnuisition vehicles
without paying compensation—Ceylon, hidemnily 'Order, 1915—Order in
Council, 1896.
The Governor, in consequence of serious rioting, proclaimedmartial .law,andcommittedtotheBrigadier-General themain-tenance oforderand thedefenceof life and property.Two
cars belonging toplaintiffwerecommandeered by theMilitary
authorities during the period of martial law. The plaintiff sued the Grownfor compensation for the use of the cars.
Held, that the,action was not maintainable.
PerEnnisJ.—Iftheimpressment of thecarswasauunlawful
act, it would fall within the terms of the Indemnity Order in Council,1915, as the act was bona fide done. There are. however, lawful ways inwhich the cars might- have been impressed.
The Orderin Council. October20,1890. prescribed the principles
uponwhich-impressmentof vehicles maybemade (t.e., with
payment of compensation out of the public funds of the Colony),and it has the force of law in the Colony by virtue of Proclamationof August 5, 1914. The Order in Council. 1896, is not restrictedto the eventuality of a foreign invasion: it applies to internal disturbanceslike the riots of 1915.
Anactionwouldlieto determine thequestion ustowhether
therewas aliabilitytopay compensation, butnotas totheamount.
The plaintiff’s suit has been framed to determine the’ amount .
of compensation,which is a matternotwithintheprovince of the
Courts.
Per Shaw -J.—In the absence of any legislation by whicli theSovereign has consented to a limitation of the right, the Crownand the officers of the Crown have the right in time of war-, or of-civil disturbance endangering the safety of the State, to enter upoDand make use of, or even destroy,thepropertyofany subject, if
it is necessaryfor the public safetysoto do,without paying any
compensation therefor.
The Order inCouncil, 1896, doesnotabolishorlimit the prero-
gative to requisition the goods of a subject in cases of necessity withoutcompensation.
If the General purported to act under the' prerogative right, anddid so unnecessarily, then the act would be a tortious one, forwhich the officer responsible would be liable in damages, unless hecould bring himself within the protection of the Ceylon IndemnityOrder, 1915. In no case, however, can the Crown be made liable for the actof the officers if the act be a wrongful one.
1918.
( 194 ')
The Governor had no power (till the Order' in Council of March21, 1916) to delegate the powers *j:veu to him by the Order inCouncil, 1896. to another person. In any case the Governor didnot, in fact, delegate his powers (under clause 6) to the General,nor did the General purport to act under such authority.
T*HE facts, are set out in the judgment.
Baioa, K.G. (with him Samarawickrcmc, ■ Haylnj. Cooray, andCanakaratne), for the appellant.
Garvin, S.-G. (with him V. M. Fornando, G.C.). for the respondent..
'Gur. adv. vult.
February 20, 1918. Exxis J.—
In this action,Mr. C. E. A. Dias sued the Crown for a sum ofEs. 6,750 as compensation for the use of two motor cars impressedby the Military authorities.
It appears that two cars were supplied by the plaintiff on therequisition of the Military authorities, acting on the or.ders of .the Officer Commanding the Troops in Ceylon, and the appellantaccepts the finding of the learned District Judge that one car was,detained for ninety-one days and the other for thirty-nine days.
Tt was contended for the Crown that the Officer Commandingthe Troops acted under the powers vested in him by a Proclamationdated June 2, 1915, without any agreement, express or implied, topay compensation, and that in the circumstances (a) no action wasmaintainable against the Crown, or (b), assuming an action weremaintainable, it is barred by the Indemnity Order in Council ofAugust 13, 1915. In the alternative it was contended that the carswere impressed in the exercise of the prerogative of' the Crown totake without compensation.
The Proclamation of June 2, 1915, proclaimed martial law in theWestern Province of Ceylon; declared ■ that the maintenance oforder and the defence of life and property in the said Province werecommitted to the Officer Commanding the Troops in Ceylon; andauthorized the said officer “ to take all steps of whatever naturethat he may deem necessary for the purpose aforesaid*"”
The Ceylon Indemnity Order in Council of 1915 provided that** (1) No action, prosecution, or legal proceeding whatever shall bebrought, instituted, or maintained against the Governor of Ceylon,or the person for the time being or at any time commanding thetroops in Ceylon, dr against any person or persons acting under
them . for or on account of or in respect of any acts,
matters, or things whatsoever in good faith advised, commanded,ordered, directed, or done for the maintenance of good order and gov-ernment or for the public safety of the Colony between the date of thecommencement of martial law and the date of the taking effect ofthis .Order. ”
1918.
Dias v. TheAttorney-General
, ( 195 )
1918.
Enots J.
Diaa «. TheAttorney-General
There are, however, three lawful ways in which cars may beimpressed, viz., (1) in exercise of the Royal prerogative in case ofurgent necessity; (2) in exercise of the powers vested in the Governorby section 8 of the Ordinance No. 4 of 1840; and (3) in exercise ofthe powers vested in the Governor by clause III., sub-clause 6, of theOrder in Council of October 26, 1896, which came into operation inthe Colony by Proclamation on August 5, 1914, and still applies.Under the first of these, compensation is not payable (except asan act of grace); under the second, compensation is payable at theordinary rates for hire, together with such extra compensation asthe District Court shall think reasonable; and under the third,such compensationis payableoutof the public fundsof the Colony
as may beagreed,or as theBoard appointed undersub-clause 13
shall determine.
The effect of a proclamation of martial law is concisely stated inthe Manual of Military Lam (1914, page 4): —
In time of invasion or rebellion, or in expectation thereof, excep-tional powers are often assumed by the Crown, acting usually (thoughby no means necessarily)throughitsMilitaryforces,forthesuppression
of hostilities or the maintenance of good order within its territories(whetherthe UnitedKingdom or British Possessions); andtheex-pressionV martial law" is sometimesemployed as a nameforthis
common lawright ^ofthe Crownandits servants to repelforce by force
in the case of invasion, insurrection, or riot, and to take such exceptionalmeasuresas may benecessary for thepurpose of restoring peaceand
order.
The intention toexercise suchexceptionalpowersandtotakesuch
exceptional measures is generally announced by the issue of a “ Pro-clamation ofmartiallaw but,onthe one hand, sucha Proclamation
is not necessary, as the right to exercise these powers depends on theactual circumstancesandnot ontheProclamation;and,ontheother
hand, theProclamationofitself innodegree suspendstheordinary
law, or substitutes any other kind of law in its stead, but operates onlyby wayof warning that the Government is about to resort, ina given
district, tosuch forciblemeasures asmaybenecessary to repelinvasion
or suppressinsurrection,asthe casemaybe.To' obviateanyquestion
as to thelegality of themeasurestaken forthis purpose(whether or
not they have been preceded by a Proclamation of martial law), it has beenused to pass an Imperial or local Act of Indemnity for the protection of thoseengaged, so farasthe stepstakenbythemhavebeen
reasonably necessary for the purpose and carried out in good faith ….
The Indemnity Order came into effect on the date martial lawwas terminated in the Colony, viz., August-30, 1915, and it is agreedthat the detention of the cars occurred during the time martial lawwas in force. .
There can be no doubt that if the impressment of the cars was anunlawful act, it would fall within the terms of the Indemnity Orderin Council, for it is conceded by the plaintiff that the act was bona-fide done.
1196 )
1M8.As to tho exercise of the prerogative power to take without
Ennis J. compensation. Lord Parker, iu the case of The Zamora,1 said: " There—is no doubt that under certain circumstances and for certain purposes
Attorney■the Crown may requisition any property .within the realm belonging
General to its own subjects. ”
The prerogative right to take without compensation was held inthe case of The King’s Prerogative in Saltpetre,2 to be exercisable incase of invasion, and in the Petition of Right of X.3 it was held thatthe prerogative right is not. limited to a case of actual invasionrendering immediate action necessary.It is to be observed,
however, that- this ease was really decided on the Statutes, andfurther, that after an appeal had been lodged the ease was settledby the payment of compensation. The Zamora case did not decidethe question as to when, under Municipal law. the prerogative rightcould be exercised, because there the case raised a questionof International law and not of Municipal law. In the presentcase it is conceded that the act was necessary, but that therewas any urgent necessity is denied. Martial law was declared inthe suppression of the Ceylon riots, but that this was anything morethan an “ emergency ’’ within the meaning of Ordinance No. 4 of1840 is contested. I do not- consider it necessary to decide the/- point, as the Order in Council of 1896,, which was applied directlya state ' of war existed, prescribes the principles upon whichimpressment of vehicles may be made, i.r,., with payment ofcompensation out of the public funds of the Colony, and it has theforce of law in the Colony.
As regards the Ordinance No. 4 of 1840, it is clear from theevidence that- the Military authorities did not act under it.
As to the effect of the Order in Council of 1896, it was argued inthe Court below (a) that the Order did not apply to internal dissen-sion; (b) that- if it did apply, the tribunal to award the compensationwas the Board provided for by the Ordev. The learned Judgefound that there was nothing in the Order to restrict its applica-tion to the eventuality of a foreign invasion, and held that- it wasapplicable to internal disturbances like the riots of 1915.
In the Supreme Court this finding was not seriously contested,but in place of it it was urged that the Governor could not delegatehis powers under the Order so far as they were discretionary andnot merely administrative. I have searched the record in vain forany evidence to show that the Governor did not order the impress-ment of oars. There is nothing but the certificate D 5, which appearsto have been issued to . Captain Tonks and other officerswho carried out the orders of the General, to show that they wereacting under his authority. It sets out that the Officer Commandingthe Troops was acting “ in pursuance of the powers committed to
1 85 L. J. {1916), at page 95.1 (1603) 12 Coke's Reports 12. –
3 (1915) 3 K. B. 649.
( 197 )
him under martial law.” It does not refer to the Proclamation.The point is entirely new. The plaintiff’s fourth issue directly raisedthe question as to whether the Officer Commanding the Troopshad the authority of the Governor to requisition cars, and the firstissue framed by the Attorney-General admits that the cars weretaken for the service of the Crown. There is nothing in the evidenceto show that the authority conferred upon the General in theProclamation declaring martial law was the only order given by theGovernor. The onus of proof on the contention would be on thedefendant (St. James and Pall Mall Electric Light Go., Ltd., v. TheKing1), and he has not discharged the onus. The presumption isthat all orders necessary for the impressment of the cars 44 for theservice of the Crown ’ * were given, and that presumption has notbeen rebutted. In my opinion the learned District Judge is rightin holding that the Order in Council of 1896 was available.
1918.
Kanos J.
Diaev. TheAttorney*General
I agree with the learned District Judge that no question ofcontract can arise in this case. There was no agreement or impliedagreement, and the plaintiff-appellant could obtain no compensation,iinlflHg the payment of compensation were expressly provided forby legislation, either by Order in Council or Ordinance.
The case of The Queen v. The Burslem Local Board of Health 2 andThe Queen v. The Metropolitan Commissioners of Sewers 3 decidedthat an action would lie to determine the question as to whetherthere was a liability to pay compensation, but not as to the amount.On this point it was urged that the plaintiff was entitled to applyto the Courts, as no Board as provided by the Order in Council hadbeen established. It does not appear that there has been anyrefusal to appoint such a Board, and the plaintiff’s suit has beenframed to determine the amount of compensation, which is a matternot within the province of the Courts. It would seem, further,that a sum of Rs. 55 was paid (page 19) in respect of compensationof the plaintiff's claim. In the circumstances it would seem thatthe case is one to determine the amount of compensation. I am ofopinion, therefore, that the dismissal of the action was right, and Iwould dismiss the appeal, with costs.
Shaw J.—
This action is brought by the plaintiff against the Attorney-General, representing the Crown, to recover remuneration for theuse of two motor cars, the property of the plaintiff, which wererequisitioned by the Military at the time .of .the, riots of 1915, andused by them for periods of ninety-one days Mid thirty-nine days,respectively. The Judge has found -that the sum of Rs. 3,412.50would be reasonable compensation for the use of the cars, but has
1 90 L. T. N. 8. 344.
3 1 EL As BL 694.
* 1 El. <k EL 1077.
( 198 )
1918.
Shaw J.
Dias v. TheAttorney- ■General
held that, in view of the circumstances under which the cars wererequisitioned, no action lies against the Crown for compensationfor their use. From this decision the plaintiff appeals.
The facts very shortly are as follows. On June 2, 1915, seriousrioting having broken out in the Colony, His Excellency theGovernor issued Proclamation declaring the several Provincesaffected to be subject to xnartial law for the time being, and declaringthat the maintenance of order and the defence of life and propertytherein had been committed to Brigadier-General Malcolm, theOfficer Commanding the Troops, who was authorized ” to take allsteps of whatever nature he may deem necessary for the purposesaforesaid.”
Orders, were given by the General to Captain Tonks, who wasacting as officer 'in charge of the transport, to “ commandeer ”cars for the use of the Military. These instructions appear fromCaptain Tonks’s evidence to have been verbal, and not to haverelated to any particular cars. Acting on these orders, some Militaryofficers went to the plaintiff’s house in Colombo and asked for theplaintiff’s car “ B 27,” which the plaintiff accordingly sent to thebarracks on the same day. On June 8 the plaintiff. received arequisition for his other car, “ C 1968,” which was at Horana, fromthe Officer Commanding the Troops at that place. In view ofoertain contentions set up in the case, the form of that requisitionis of some importance: —
C. E. (A. Dias, Esq.,
Wawulagoda, Horana.
You are commanded by the General Commanding the Troops tosend your car, with driver, petrol, oil, carbide, &c., to Panadureresthouse forthwith.
In the event of your not complying with this order you will be. finedRs. 1,000 for each day of delay.
(Signed) D. Wyer, 2nd Lieut., F. A. R. 0.,
0. C. Troops, Panadure.
After some .correspondence and a further order from the OfficerCommanding Motor Transport, couched in somewhat similar termsto the order above set out, and after some delay in consequence ofa breakdown of the car, this car was also handed over to the Militaryin Colombo on July 29.
The cars were retained by the Military until the beginning ofSeptember, when they were returned to the plaintiff, and the plaintiffwas paid Rs. 55 for repairs to car ” C 1968.”.
Besides the plaintiff’s cars, a large number of other cars wererequisitioned by the Military. The exact number is not statedin the evidence, but Captain Tonks says that he had in barracks,very roughly, about 300 cars in June, 200 in July, and 100 inAugust.'
( 199 )
It was apparently at one time thought by the Officer CommandingMotor Transport that payment was to be 'made in respect ol carsrequisitioned, and the following notice was issued by him andappeared in the “ Ceylon Morning Leader ” of July
0. M. S.
All claims in connection with cars commandeered lor Military purposesmust be sent with full particulars thereof to the undersigned, EchelonBarracks, on or before Thursday, the 15th instant.
Osmund Tonks, O. C. M. Transport.
1918.
Shaw J.
Dias «. TheAUomey-Oeneral
Any authority, however, to Captain Tonks to promise compen-sation for the use of requisitioned cars was subsequently repudiatedby the General and the Government, and at the end of Augustcertificates relating to the requisitioned oars were issued by theGeneral in the following form:—
Certificate.
1 certify that the motor cars requisitioned by , in the
Town/District of , were so requisitioned in pursuance of my
directions by virtue of the powers committed to me under martiallaw for the purpose of the maintenance of public order, and I orderthat no charge be paid for the use of such motors, except in cases ofmotors which usually ply for hire only.
(Signed):Brigadier-General,
Colombo, August 28, 1915.Commanding the Troopsf Ceylon.
Acting on the General’s recommendations, the Government hasrefused to pay the plaintiff any sum as compensation for the use ofhis cars.
The proposition that, in the absence of any legislation by whichthe Sovereign-has consented to a limitation of the right, the Crownand the officers of the Crown have the right in time of war, or ofcivil disturbance endangering the safety of the State, to enter uponand make use of, or even destroy, the property of any subject, if it isnecessary for the public safely so to do, and that without payingany compensation therefor, appears to me to admit of no question.And this right, although commonly referred to as a Royal prerogative,would seem not merely to be that of the Crown and its officers, buteven, should the necessity be sufficient, that of any citizen of theState. In the case of The King’s Prerogative in Saltpetre,x it isstated in the opinion delivered by the entire Bench of Judges: “ Whenenemies come against the realm to the sea coast, it is lawful to comeupon my land adjoining to the same coast, to make trenches orbulwarks for the defence of the realm, for every subject hath benefitfrom it. And, therefore, by the common jaw, every man may comeupon my land for the defence of the realm, as appears in 8 Ed. 4, 23.And in such case on such extremity they may dig for gravel, forthe making of bulwarks; for this is for the public, and- every one1 (1603) 12 Coke's Reports 12.
( 200 )
1918.
Shaw J.
Bias v. TheAttorney -General
hath, benefit by it; but after the danger is over the trenches andbulwarks ought to be removed, so that the owner shall not haveprejudice in his inheritance; and for the Commonwealth a man shallsuffer damage; as for saving of a city or town, a house shall be pluckeddown if the next be ou fire; and the suburbs of a city in time ofwar for the common safety shall be plucked dowu; and a thing forthe Commonwealth every man may do without being able to anaction, as it is said in 3 H. 8, fol. 15. And in this case the rule istrue, princeps et respublica exjusta causa possunt ram meant auferre."
In E. o. Hampden 1 it was admitted by the defence as being law‘4 that in times of war or invasion the maxim ‘ naive populi supremolex ’ must prevail, and that in these times of war, not only HisMajesty, but also every man who has power in his hands, may takethe goods of any within the realm, and do all other things thatconduce to the safety of the kingdom without respect had to anyman's property," and Sk Richard Hutton, in the course of hisjudgment in this case, said: " I do agree, in the time o: war, whenthere is an enemy in the field, the King may take goods from thesubjects when there is such a danger that threatens to overthrowthe Kingdom."
In Hale v. Barlow 3 this right of the Sovereign is recognized byWilles J. in his judgment, as it also is by many winters on Consti-tutional law, to whose opinions we were referred in the course ot*the argument.
To come to recent times, this prerogative right has been expressly"affirmed in the case of In re a Petition of Right* where it was heldto apply to the requisitioning of land, without compensation to thesubject, save by way of grace on the part of the Crown, in a casewhere actual invasion had not taken place but was apprehendedonly. It is true that two of the Judges in that case based theirjudgments on the right given under the Defence of the Realm Act,1914, to take land without compensation; but the right of theCrown to take the land under the Royal prerogative withoutcompensation was expressly recognized by all the Judges, and theonly doubt that can be raised as to the finding in that case is whether,on the facts of the case, sufficient necessity for the exercise of theprerogative existed.
In the case of The Zamora * which was an unsuccessful attemptto extend the right so as to include requisitioning the goods of aneutral on board a neutral ship which had been stopped at sea andbrought, into an English port by a ship of war, the right to requisitionthe goods of a subject without compensation is expressly affirmed.In the judgment of the Privy Council delivered by Lord Parker,at page 99, it is stated:"There is no doubt that under certain
circumstances and for certain purposes the Crown may requisition
1 (1637) Howell's State Trials 825.. 3 (1915) 3 K. B. 649.
a (7866) 4 C. B. N. S. 334.4 (1916) 2 A. C. 77
( 201 )
any property within the realm belonging to its own subjects,” and,further, on page 100: ‘' The Municipal law. of this country does notgive compensation to a subject whose land or goods are requisitionedby the Crown.”
It is true that in none of the cases I have referred to is mentionexpressly made of necessity arising from civil disturbance, but Ican see no distinction that can properly be drawn between caseswhere the danger to the public arises from foreign enemies andthose where it arises from internal disturbance: in each case themaxim “ salun popuU supremo, lax ” applies.
In the present case, the Colony being already in a state of war,civil disturbances broke out that occasioned so much danger to thepublic that it was thought necessary by the Government to issueProclamations declaring martial law to be in force in the variousProvinces affected, and declaring that' the General Commandingthe Troops had been authorized to take all necessary steps forthe maintenance of order and the defence of life and property.The proposition that these Proclamations invested the Military withno greater powers than they had already possessed under theexisting Jaw. and only amounted to an intimation to the publicthat such powers would be exercised, is so well established that-it is unnecessary to quote authority therefor. The General Com-manding the Troops had. therefore, under the circumstances thathad arisen, the- right to requisition the property of any subject,without paying compensation for its use, if such requisition wasuecessary for the safety of the public, and unless such right hadbeen limited by legislation. Whether it was in fact necessaryunder the circumstances that existed to requisition the plaintiff’scars under the prerogative powers I have been referring to, ahdwhether or no the cars were kept longer than the necessity demanded,I need not discuss, for if the General purported to act under theprerogative right, and did so unnecessarily, then the act would be atortious one. for which the officer responsible would be liable indamages, unless he could bring himself within the protection of theCeylon Indemnity Order in Council, 1915. In no case, however,can the Crown be made liable for the act of its officers if the act bea wrongful one, for an action will only lie against the Crown inCeylon in such casus as a remedy would be available by way<>f Petition of Right in England, and no such remedy is there availablein respect of a tort (see The Colombo Electric Tramway Company r.The Attorney-GeneralI).
It was contended on behalf of the appellant that the Crown had,by the Order in Council of October 26, 1896, brought into force inCeylon by the Proclamation of August 5, 1914, limited any rightsi hat may have existed under the Royal prerogative to requisitionproperty without compensation. That Order in Council investsM1913) 16&.L. R, 161.
1918.
Shaw J.
Dias v. TheAttorney-General
( 202 )
1918. xShaw J.
Dias v. TheAttorney-General
the Governor with various powers, such as are given to His Majestyin Council in England by the Defence of the Realm Act, 1914. Itgives power to the Governor to do numerous things that he wouldclearly have no authority to do under the ordinary law, or underthe Royal prerogative that I have referred to, such as prescribingthe maximum prices for food, controlling the trade in alcoholicliquors, providing for a moratorium.&c. It also provides, by
clause 6, that 14 The Governor may require any person to supplyany animals, vehicles, ships, boats, or other personal propertybelonging to or under the control of such person to the Government,if such property be required in aid of or in connection with thedefence of the Colony, and in default of the person supplying thesapae may seize and take possession of and retain such animals,vehicles, boats, or other personal property for such purposes/*
Clause 7 provides that the Governor may take and retain,, forsuch period as he may think necessary, possession for public purposes 'of any land or building or other property, and clause 12 provides forpayment out of the public funds for., inter alia, property temporarilytaken possession of or removed or destroyed by virtue of the Order,such compensation in default of agreement to be awarded by aBoard to be appointed under the Order.
I cannot agree with the contention that this Order in Council wasintended to, or does in fact, abolish or limit the prerogative torequisition the goods of a subject in cases of necessity withoutcompensation. The powers given are clearly greater than thoseunder the prerogative, and extend to cases where sufficient necessitycannot be shown to justify the exercise of the prerogative, and the .power to requisition and pay compensation in respect of suchrequisitions appears to me to be given in addition to, and not tothe exclusion of, such prerogative 'right. It would seem mostimprobable that the Crown would, immediately bn-the outbreakof war, bring into effect an Order in Council limiting the rights italready possessed for securing the safety of the State.
It was then argued on behalf of the appellant that the Governor,by the Proclamation of martial, law, delegated to the GeneralCommanding the Troops his powers under the Order in Council inso Far as they were necessary for the maintenance of order and thedefence of life and property during the existence of martial law, andtherefore the General had authority to requisition the plaintiff’scars under clause 6 of the Order, and must be taken to have actedunder that authority, and the plaintiff is therefore entitled -to becompensated under the terms of the Order.
The first answer to this contention appears to be that the Governorhad no power to delegate the powers given to him by the Orderin Council to another person. Delegatus non potest deligari, andalthough the Governor might of necessity delegate the administra-tion of his orders to others, he could not delegate the discretion
( 203 )
vested in him personally by the Order in Council. This seems tohave been recognized by His Majesty in Council, for, by an Orderin Council of March 21, 1916, the Order in Council of 1896 has beenamended, and provision made that “ The Governor may if hethinks fit delegate to the Naval or Military authorities in the Colonyany of the powers under the principal Order."
A second auswer to the contention is that the Governor did not,in fact, delegate his powers under clause 6 to the General, nordid the General purport to act under any such authority. TheProclamation of martial law did not, as I have already said, investthe General with any further powers than those he otherwise had,and merely amounted to a notification that such powers were goingto be exercised, and that-a direction had been given to the Generalto exercise such powers; and it is clear that the General himself didnot purport to be acting under the Order in Council, for in the formof the orders used in requisitioning cars there is a threat to exacta penalty of Rs. 1,000 for each day of delay in complying with theorder; whereas the Order in Council of 1896 provides for a fine ofnot less than forty shillings and not more than ten pounds in theevent of failure to comply with a requisition under the Order inCouncil. The form of certificate issued by the General on August28, 1915, as to the payment fon requisitioned cars also tends tonegative the fact that he purported to act under the Order in Councilin making the requisitions.
One other contention put forward on behalf of the appellantremains to be noticed, namely, that under the circumstances inwhich the cars were taken and retained there arose an impliedcontract on the part of the Government to pay for their use.
That a contract may sometimes be implied for the purchase orhire of goods where possession has been assumed of another person’sgoods without any specific mention of terms of contract, and where' the circumstances are such that an intention to contract can beinferred, is no doubt true; but the circumstances under which thecars in the present case were taken possession of by the Militaryexpressly negative any idea of a contract. It is only necessary tolook at the terms of the order under which the car “ C 1968 " wasrequisitioned to show that there could have been no contract betweenthe parties; and the plaintiff in his letter of June 9, 1915, addressedto the Officer Commanding the Troops, Panadure, protestingagainst the requisitioning of this car, speaker of his other car, ‘‘B 27, "having been already " commandeered." 1
For the reasons I have given I think the Crown is under no legalliability to pay compensation to the plaintiff for the use of his carsby the Military, and any such compensation can only be obtainedas a matter of grace from the Crown.
I would affirm the decision of the District Court, with costs.
A^-aed.
1918.Shaw J.
Diae v. TheAttorney-General