66

C.A.

1901.

THE KING

v.

& Co.

Queen (1865) (1). The statutes on which these cases were decided were "The Crown Suits Act, 1858" (21 Vict., No. 49), and "The Crown Suits Act, 1865" (28 Vict., No. 241). Section 8 of the former Act was as follows: "Nothing shall be BANNATYNE deemed a claim or demand within the meaning of this Act "unless the same shall be founded on and arise out of some contract entered into on behalf of Her Majesty by or by "the authority of her said local Government." The words. of section 27 of the 1865 statute are almost the same. They are, "Nothing shall be deemed a claim or demand within the meaning of this Part of the Act unless the same shall be founded on and arise out of some contract entered into on behalf of Her Majesty or by the authority of her local "Government." I cannot see any difference in meaning between our New Zealand statute and these Victorian Acts. If there is any difference out statute is wider, for it expressly provides for implied contracts."

66

66

66

"

Lorimer v. The Queen (2) was decided on the Act 21 Vict., No. 49. The facts were that the Customhouse officers had erroneously charged fees on transhipment of wheat. The moneys were illegally received, as the fees were not payable according to the true interpretation of the statute; and the Court held that they could be recovered back by a petition of right. The argument was that the remedy by petition of right could only be on express contracts; but the Court held that the remedy was not so limited. Mr. Justice Molesworth did not dissent from the judgment of the Court, but he doubted if the Act gave power to petition save on an express contract. He seems to have assumed that in the old form of petition, monstrans de droit, it would be for redress of a tort. Tobin v. The Queen (1864) (3) was not decided till two years later. The judgment in that case does not seem to me to bear out Mr. Justice Molesworth's contention: See at pages 355-56; see also Chitty's Prerogatives of the Crown(4).

Stevenson v. The Queen (1865) (1) was a petition of right for Customs duties illegally levied, and it was decided that a

(1) 2 W.W. & A'B. (L.) 176. (2) 1 W. & W. (L.) 244.

(3) 16 C.B. N.S. 310; 33 L.J. C.P. 199.
(4) at p. 353.

C.A. 1901.

THE KING

V.

BANNATYNE & Co.

ment.

66

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66

petition did lie. Tobin v. The Queen(1) was cited in argu-
Stawell, C.J., said, "The point is simply whether
this action for money had and received is maintainable
in a case where it is allowed that if it were between sub-
"ject and subject tort might also lie. For the Crown it was
insisted that the Crown could not be sued in tort, and that
"to allow the plaintiff to waive the tort, the alleged wrong-
"ful receipt of money, and sue for the money itself, would
"be to allow indirectly that which could not be done directly.
"The mere use of the expression waiver of the tort,' shows
"that tort is not the basis of the action.
It is upon
"that promise, not upon the tort, that the action for money
had and received to the use of the owner is founded."
was the judgment of Chief Justice Stawell and Justices Barry
and Williams.

That

In the latest edition of the Victorian Statutes (1890), which was compiled under the direction of the late Chief Justice Higinbotham, these cases are cited as still law.

In my opinion, to hold that this claim did not come under subsection 1 of section 37 of our Act would be to hold that our statute gave less, not more, redress than was given under the old form of petition of right in England.

Judgment will be for the suppliants for £300, with costs according to scale, and disbursements.

Judgment for the suppliants.

The Crown appealed from this decision.

Findlay for the appellant.

E. B. Brown and E. H. Dean for the respondents.

Brown:

There is a preliminary objection to the appeal proceeding: no security has been given. Section 36 of "The Crown Suits Act, 1881," makes it necessary for the Crown to give security. That provision, being in the Crown Suits Act, binds the Crown. If security is not given, the respondents have no other means of enforcing any judgment.

(1) 16 C.B. N.S. 310; 33 L.J. C.P. 199.

66

Findlay :

C.A.

1901.

THE KING

v.

& Co.

The point is covered by authority. The words of "The Crown Suits Act, 1881," are the same as those of the English statute, "The Petitions of Right Act, 1860," section 7. AS BANNATYNE to the effect of the words Iso far as the same may be applicable," see Clodd on Petitions of Right(1), Tobin .v. The Queen(2), Tomline v. The Queen(3), and Thomas v. The Queen(4). The Crown cannot be called upon to give security for costs: Per Bramwell, L.J., during the argument in Tomline v. The Queen(5). The Crown Suits Act only authorises payment of the amount of a judgment against the Crown out of moneys specially appropriated by Parliament for the purpose. There is no authority to deposit anything now.

Brown, in reply:

The reasons against the Crown being put on oath to make discovery do not apply here. There is nothing derogatory to the Crown or its dignity in giving security. Costs can be given against the Crown on appeal, although the Crown is not specially named: Moore v. Smith(6).

WILLIAMS, J.:

I am of opinion that the provisions of Rule 18 in the Schedule to the Court of Appeal Act, which require security to be given, are not applicable to the Crown in a case between Crown and subject. They are not applicable, in my opinion, for this reason that the law contemplates that if judgment is recovered against the Crown no execution or process can issue on such judgment, but that it is altogether in the discretion of Parliament to make provision for the payment of the judgment which has been given. If we were to order security to be given it would mean that we should be placing the respondents in a more advantageous position than they ought to be in, and we should be placing the Crown in a position in which it ought not to be placed. The Court would in effect

(1) p. 176.

(2) 14 C.B. N.S. 505; 32 L.J. C.P.

216. (3) 4 Ex.D. 252.

(4) L.R. 10 Q.B. 44.

(5) 4 Ex.D. 252, at p. 254.

(6) 1 E. & E. 597; 28 L.J. M.C. 126.

C.A.

1901.

be disposing of public money without the authority of Parliament, which the Court can have no right to do. In my opinion, therefore, the Crown is entitled to appeal without BANNATYNE giving any security.

THE KING

v.

& Co.

DENNISTON, J.:

I am of the same opinion, and for the same reasons. In any other view it seems to me that the Crown, the appellant in this case, must either give security, which involves ultimately finding the money, without the appropriation of Parliament, or be denied the right of appeal. It is provided that the ultimate body to decide as to the payment of money on a judgment in such a case as this is Parliament. It seems to me that a decision ordering security to be found by the Crown would practically amount to expressing a doubt as to the proper exercise, by Parliament of the discretion which has been intrusted to it.

CONOLLY, EDWARDS, and COOPER, JJ., expressed their con

currence.

Objection overruled.

Findlay, for the appellant:

tax.

The poll tax was properly payable. Up to 1888 each Chinese member of a crew was in the same position as a passenger if he landed with the intention of remaining in the colony. The responsibility was thrown on the master of preventing him landing and remaining. If he landed with the intention of remaining, the master had to pay the pollThis was the only effective way of preventing such landing. On the construction placed upon the Act of 1888 in the Court below, there is now a penalty on the Chinaman only, and the Legislature has substituted a practically useless for an effective check. Section 6 of the Act of 1888 amends section 9 of the Act of 1881. The word "Chinese " includes passengers and crew in both those sections. And section 9 imposes a severe penalty of imprisonment. It is said, however, that section 8 of the Act of 1888 exempts the

C.A.

1901.

THE KING

& Co.

crew from all restrictions under the Act of 1881, including (as a restriction) the poll-tax. If so, then there is no penalty on a master discharging a Chinese member of his crew, but only a penalty on the Chinaman discharged, and there is no BANNATYNE penalty on a Chinaman who deserts, not being discharged. It is said that a master discharging in breach of the Act could be proceeded against for a misdemeanour; but that is so only where the Act either expressly declares a breach to be a misdemeanour, or prohibits something as contrary to the liberties and securities of the public, and in any case there cannot be an indictment for a misdemeanour where the same clause which prohibits the act also provides a penalty: Archbold's Criminal Pleading(1). Here there is a penalty on the Chinaman discharged. Section 111 of "The Criminal Code Act, 1893," could not have been relied on, as it had not then been passed. The construction placed on the Act of 1888 amounts, therefore, to a complete subversion of the policy of the Act of 1881. Any number of Chinese can land; there is no penalty on the master, and only £20 on the Chinese. Some escape should be sought from this result. The cases in which words have been altered or added to rather than adopt a construction leading to an absurdity are summarised in Harris v. Lee(2). Here there are two ways out of the difficulty. First, "restrictions" may be read as not including poll-tax. The word may refer simply to the limitation of numbers according to tonnage: it is used in a similar way in section 66 of "The Customs Laws Consolidation Act, 1882."

[WILLIAMS, J.-The restriction as to tonnage applies to passengers only.]

The word may have been introduced by way of caution only, as showing that that restriction was not to apply to the crew. The effect of sections 4 and 5 of the Act of 1881 was to prohibit any Chinese (whether passengers or crew) from landing until a list had been furnished to the Collector of Customs. The Chinese are not to be "permitted to land" before the list is furnished, and poll-tax paid where it is (1) 22nd ed. 3, 4. (2) 21 N.S.W. L.R. (L.) 173.