Scottish Court of Session Decisions

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This was an action at the instance of Allan Smith, Torniascar, Abernethy, Inverness-shire, against the Lord Advocate as representing the War Department.

The pursuer concluded (1) for declarator that he was entitled to the rank of sergeant in the Royal Regiment of Artillery as from the 20th of November 1861, or from such date as should be determined, until such time as he should be legally discharged from the army, with all the emoluments and privileges accruing therefrom, or (2), alternatively, for declarator that he was entitled to the rank of bombardier from the same date till legally discharged, with all the emoluments and privileges accruing therefrom; and (3) for count and reckoning for all outstanding pay due to him as pertaining to the rank of sergeant, or alternatively to the rank of bombardier, and for payment of £2000 or such sum as should appear to be due to him, or failing count and reckoning, for £2000, and also for payment of £750 as damages.

The pursuer made the following averments:—“(Cond. 2) On 23rd May 1851 the pursuer enlisted in the Royal Regiment of Artillery. In 1857 his battery was ordered to India to assist in the suppression of the Indian Mutiny, and the pursuer accompanied them there. (Cond. 3) On 30th April 1860 the pursuer was tried, on the charge of endeavouring to obtain money on false pretences, by a court-martial at Allahabad, and being found guilty he was reduced from the rank and pay of a bombardier to that of gunner. (Cond. 5) In 1861 the court-martial aforesaid was declared illegal by the Judge-Advocate-General for India, and was cancelled by Sir Hugh Rose, the Commander-in-Chief. He ordered that the pursuer should be reinstated in his position in his battery as a non-commissioned officer, and that he should receive all the pay and other emoluments due to him as such. Captain Jones (the pursuer's commanding officer), however, ignored the Commander-in-Chief's orders. (Cond. 7) On the 26th February 1861 the pursuer was tried by a district court-martial on the charge that he had failed to salute three officers who had, when riding, overtaken him on a day in the previous month. The said officers came up from behind, and the pursuer, who was reading, did not observe them. When one of them addressed him, however, the pursuer at once saluted, and apologised for not having observed them sooner. For this offence the pursuer was sentenced by the said court-martial to four months' imprisonment. In connection with the said charge he suffered imprisonment from 23rd January 1861, when he was placed under arrest, till 27th May 1861. This court-martial, as hereinafter set forth, was subsequently declared illegal and cancelled. (Cond. 8) On 16th August 1861 the pursuer was tried by court-martial on the charge that on 26th July 1861 when off duty he had ridden a horse on the public road. This was a perfectly legal act, but the pursuer was, in respect of it, convicted on the evidence of one witness, and sentenced by the said court-martial to forty-two days' imprisonment. In connection with this charge the pursuer suffered imprisonment from 26th July 1861, when he was arrested, till 7th September 1861. (Cond. 9) Immediately on his release, when the court-martial was promulgated, the pursuer was sent back to the guard-room again a prisoner for appealing to the Commander-in-Chief, Sir Hugh Rose, regarding his case. On 13th January 1862 the pursuer was released without having been tried. He was thus imprisoned from 26th July 1861 to 13th January 1862. (Cond. 10) On or about this date the pursuer was ordered by Sir Hugh Rose to stand reduced as from 30th April 1860, on account of his having been tried by court-martial on 26th February 1861. The latter court-martial was subsequently declared illegal, and the decision of Sir Hugh Rose, as hereinafter set forth, was also declared to be ultra vires, and so ineffectual. (Cond. 11) On 7th November 1862 Colonel Christie, who was in command of the Royal Artillery at Benares, made pursuer a prisoner for making a formal claim for arrears of pay due to him as bombardier, in consequence of the court-martial of 30th April 1860 having been cancelled. Pursuer was imprisoned for 72 days, from 7th November 1862 to 17th January 1863, and was not charged with any crime or brought up for trial during that period. (Cond. 12) In all, the pursuer was subjected to wrongous and illegal imprisonment for 369 days. In consequence of this prolonged confinement in a hot climate, his health suffered, and his life was endangered. (Cond. 13) In 1863, in consequence of pursuer's repeated appeals, his case was brought before the Judge-Advocate-General of H.M. Forces in London, who declared that the courts-martial of 30th April 1860 and of 26th February 1861 were illegal; further, that Sir Hugh Rose had no authority to summarily reduce a non—commissioned officer, and that his order, which purported to reduce the pursuer, was ineffective. A copy of said decision will be produced. The Judge-Advocate-General's decision was, in December 1863, confirmed by H. R. H. the Field-Marshal, commanding-in-chief, who cancelled the courts-martial aforesaid, and ordered the pursuer to be relieved of all the consequences entailed by them, in so far as practicable, as if they had never existed. (Cond. 14) Following on the said decision, Major Oldershaw, commanding the 14th Brigade Royal Artillery in India, stated in a letter dated on or about 10th February 1864, and afterwards read to the pursuer in the circumstances hereafter detailed, that the pursuer would in ordinary circumstances have been promoted to the rank of sergeant as from 20th November 1861, as there were no other entries against him but the courts-martial now declared to be illegal. The pursuer avers that but for those illegal proceedings he would have been promoted to the rank of sergeant, and that by them he was prevented from attaining that rank with its attendant emoluments and privileges. (Cond. 15) In May 1864 the pursuer arrived in England

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with the intention of seeking the redress denied him in India. He made out a statement of his claims, which was forwarded to Colonel Gibbon, C. B., the officer commanding the 4th Division Depot Brigade, R.A. The latter sent for the pursuer, who was then for the first time apprised of the Field—Marshal's decision set forth in Cond. 13. Colonel Gibbon also read to pursuer Major Oldershaw's letter, which is referred to in Cond. 14. (Cond. 16) The pursuer was offered the rank he held in 1860, but he considered, having regard to the terms of Major Oldershaw's letter, that he was entitled to the rank of sergeant as from 20th November 1861, and he requested Colonel Gibbon to forward an application for promotion accordingly. (Cond. 17) In August 1864 pursuer was asked to re-engage, or take his discharge. He indicated his intention to re-engage, but stated that he was of opinion that he was entitled first to have his claims adjusted. These were referred hack to Colonel Gibbon, who merely reported that ‘pursuer was a discontented man, and is likely to remain so, and would not make a good non-commissioned officer.’ (Cond. 18) On 24th February 1866 pursuer was sent for to the War Office, and the Deputy Adjutant-General, R.A., read a document to him from the Judge Advocate-General, who stated that as the pursuer had suffered legal wrong in several instances he should be made a sergeant. The Deputy Adjutant-General then informed pursuer that if he would re-engage he would be made a corporal at once and would be sent on recruiting service. This compromise the pursuer however declined. (Cond. 19) On 6th April 1866 the pursuer was discharged without settlement of his claims. His discharge is produced herewith and referred to. It is stated therein that the pursuer's conduct was very good, that he possesses three good conduct badges and the Indian Mutiny medal. He also has a clasp for Lucknow. (Cond. 20) … The only payments made to the pursuer since his return to England have been two small sums paid in 1866 and 1868, in name of arrears of pay as bombardier. There is still due to him as bombardier a sum of £10, 13s. 9d. or thereby, in name of pay and good conduct pay from 1860 to 1865. (Cond. 21) The pursuer has repeatedly applied to the authorities for settlement of his claims, but has received no satisfaction. He also had questions put in Parliament on the subject, but partly owing to the apparent intricacies of his claims, his efforts were fruitless. Failing to obtain redress by these means, he has been compelled to delay proceedings in Court until he should have saved a small sum to defray the outlays connected with an action.”

The pursuer pleaded—“(1) In terms of the decision of H.R.H. The Field-Marshal Commanding-in-Chief, and Major Older-shaw's letter as condescended upon, the pursuer is entitled to decree in terms of the first alternative conclusion of the summons. (2) As the pursuer was entitled to the rank of sergeant in the aforesaid regiment on 20th November 1861, and would have attained the said rank at that date but for the illegal proceedings by court-martial as condescended upon, and as these proceedings have been declared by a competent authority to be null and void, and the pursuer to be entitled to be restored against them as if they never existed, the pursuer is entitled to decree in terms of the first alternative conclusion of the summons. (3) Alternatively, the pursuer being entitled in terms of the judgment of the Field-Marshall to be restored against the consequences of the courts-martial which were declared illegal as if they had never existed, he is in any event entitled to be restored to the rank he held before these proceedings, and to obtain decree in terms of the second alternative conclusion of the summons. (4) In the circumstances set forth, the pursuer is entitled to have the defender ordained to hold a just count and reckoning with him, and to obtain decree for the amount which shall be found to be due to the pursuer. (5) Failing count and reckoning, the pursuer is entitled to decree of payment as concluded for. (6) The pursuer having suffered wrongful imprisonment, as set forth, at the hands of officers in the service of the War Department for whom they are responsible, the defender as representing said department is bound to make reparation to the pursuer therefor.”

The defender pleaded—(1) No jurisdiction. (2) The action is incompetent. (4) The action is barred by mora. (5) The pursuer's averments are immaterial and irrelevant. (6) The pursuer's discharge having been legally granted, his claims are untenable. (7) The pursuer never having attained a rank higher than that of bombardier, is not entitled to decree as if he were sergeant or had a right to that rank. (8) The pursuer having been granted his full pay as bombardier until his discharge, has no further claim in respect of his service in that rank. (9) No action can lie against the defender on account of the alleged wrongous imprisonment of the pursuer by his superior officers.”

In the Outer House counsel for the pursuer presented the following argument:—1. Declarator.—The pursuer was deprived of a status with resulting patrimonial loss. This was done by sentence ultra vires of tribunals which pronounced them. Therefore the pursuer was entitled to a remedy like any other subject of the Queen who was wronged, unless by his voluntary act he had relinquished his right of redress, or had in some lawful way subjected himself to the power of others without appeal. It was said that this was a matter of military status merely, and that consequently there was no appeal to the civil courts, but military status carried a right to pension, which was taken away when he was deprived of his military status. This was clearly patrimonial loss, and the Court had jurisdiction to consider the question of military status incidentally— M'Millan v. Free Church, 22 D. 290, at page 319, I; Cruikshank v. Gordon, 5 D. 909, at p. 968; Forbes v. Eden, 4 Macph. 143, at pp. 157, 174. When a

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tribunal of any kind exceedsits jurisdiction, and acts ultra vires, redress was always obtainable in the Court of Session— Cruikshank v. Gordon, 5 D. 909, pp. 923, 966 (Church of Scotland Case); M'Millan v. Free Church 22 D. 290, p. 314, and 23 D. 1314, pp. 1330, 1332, 1338, 1340 (Free Church case); M'Farlane v. Mochrum School Board, 3 R. 88, pp. 98 and 103 (School Board and Board of Education); Caledonian Railway Company v. Greenock and Wemyss Bay Railway Company, 5 R. 995, at p. 1004 (Railway Commissioners); Rogerson v. Rogerson, 12 R. 583, pp. 586, 587 (arbiter). The proper defender was called. He represented the War Department—20 and 21 Vict. c. 44. The War Department administered the funds appropriated to the payment of soldiers. See M'Millan v. Free Church, 24 D. 1282, 1294, 1296. A Department of State was not protected from an action of this kind— M'Farlane v. Mochrum School Board, 3 R. 88, at p. 98. Count, reckoning, and payment was competent. If declarator was competent, clearly a decree of count, reckoning, and payment was necessary and competent. Damages.—1. Magistrates and others acting outwith or in excess of their jurisdiction, if they violate personal rights by arrest and imprisonment, were liable in damages— Manual of Military Law (1894), p. 188; Crepps v. Durden, 1 Sm. L.C. 632 (10th ed.) 2. So members of a court-martial who try a person for an offence not cognisable by them, or who pass a sentence they have no power to pass, are liable to the person aggrieved—Manual of Military Law, p. 188; Comyn v. Sabine, quoted Smith L.C. 581, 589; Keighly v. Bell, 4 F. and F., p. 785, note 3. It was only where there was legal jurisdiction, and the act was within the limits of the authority conferred, that malice need be averred—Manual of Military Law, p. 195; Keighly v. Bell, 4 F. and F. 763; Dawkins v. Lord Rokeby, 4 F. and F. 806, L.R., 7 HL 744; Dawkins v. Lord F. Paulet, L.R., 5 Q.B. 94. The officers composing the courts-martial would therefore have been clearly liable here. 3. The War Department was also liable. The officers were in its service and pay. They were the masters, the officers were their servants. 4. A master was responsible in law for ( a) the negligence of his servant, even if the act complained of had been forbidden; ( b) a wrongful act intentionally done if within the scope of the servant's employment—Glegg on Reparation, 446; Bayley v. Manchester, Sheffield, and Lincolnshire Railway Company, L.R., 8 C.P. 148, per Kelly, C.B., at page 152. In any event, the War Department had homologated the acts of these officers, and so rendered itself responsible for them.

The defender's argument sufficiently appears from the interlocutor of the Lord Ordinary.

On 21st May the Lord Ordinary ( Kincairney) pronounced the following interlocutor—“Finds that no sufficient grounds have been stated in fact or pleaded in law to support the conclusions: Therefore assoilzies the defender from the conclusions of the summons, and decerns: Finds the defender entitled to expenses,” …c.

Opinion.—“The action which the pursuer has been advised to bring raises questions relating to a somewhat unfamiliar province of law, and was anxiously and ably debated. It appears, however, to present no real difficulty, and I cannot doubt that the averments are irrelevant, and that the conclusions are unprecedented and indeed extravagant. The pursuer's misfortunes, indeed, may fairly appeal to sympathy, but I regret, on account of the expense to him, that he has raised the action, by which he can, in my opinion, take no benefit.

“The pursuer is at present a crofter, and has been a soldier. He enlisted in the Royal Regiment of Artillery in 1851, and he was discharged on the completion of his engagement on 6th April 1866. His discharge bears that his conduct had been very good, and that he was in possession of good conduct badges and of the Indian Mutiny medal.

The pursuer avers that he was on three occasions tried by courts-martial, convicted, and imprisoned; that on other occasions he was imprisoned without trial; and that he had suffered imprisonment for 369 days in all. He avers that these convictions were illegal, and had been set aside as such by the higher military authorities; and that, in particular, in December 1863, the Commander-in-Chief ‘cancelled the courts-martial, and ordered the pursuer to be relieved of all the consequences entailed by them so far as practicable, as if they had never existed.’

The pursuer further makes averments to the effect that in certain official documents it had been stated that he had suffered legal wrong, and that he should be made a sergeant. These averments are somewhat unconnected, and not very intelligible. I have not succeeded in understanding what authority or weight, if any, the documents referred to possessed, or what their precise bearing is on the conclusions of the action.

If the pursuer's statements be true—and they are to a considerable extent admitted—he has been, no doubt, extremely unfortunate, and has reason to complain of the treatment he has received at the hands of his military superiors. Thirty years, however, have now elapsed since his discharge. I suppose that his wrongs are now past all redress, and I have no doubt that none can be obtained through the medium of this action.

The action is directed against the Lord Advocate as representing the War Department. It seems vitiated throughout by the false assumption that the pursuer has never been discharged; but he sets forth his discharge himself, and does not say that there was any irregularity about it.

The first conclusion is for declarator that ‘the pursuer is entitled to the rank of sergeant in the Royal Regiment of Artillery until such time as he shall be discharged from the army, with all the emoluments and privileges accruing therefrom.’ This

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conclusion is open to various obvious and unanswerable objections. It is not averred that the pursuer was ever appointed a sergeant, and I am disposed to think that the defender's plea of ‘no jurisdiction’ is well founded as applicable to this conclusion. Non-commissioned officers are appointed under the statutes and regulations relating to the Army, and it was never heard of that any civil court could make such appointments or find that they ought to be made. Such appointments are entirely within the discretion of the military authorities, to whom they are entrusted. I was referred by the defender to a passage in Clode's Treatise on the Military Forces of the Crown, vol. ii., p. 123, to the effect that non-commissioned officers are, by long custom in the service, appointed by the colonel in command of the regiment, and nothing was advanced to the contrary by the counsel for the pursuer. Courts of law have uniformly declined to interfere with the sentences of military courts where the question brought before them regarded military rank. If an officer or soldier conceives that he has been unjustly reduced or deprived of his rank, his remedy is by appeal to the superior military authorities, or to the Crown, and not to civil courts—see Mansergh, 30 L.J., Q.B. 296; Tuffnell, 3 L.R., Ch. Div. 164.

I think I have no jurisdiction to entertain this conclusion; but further, there is not an approach to any relevant averment on record from which such a right could be inferred. All that is said is, that if the pursuer had not been unjustly treated, he would have been made a sergeant; but it does not follow that he had any right to be appointed, and I confess I am unable to imagine any combination of circumstances which could entitle anyone to be made a sergeant. There is and can be no right in the matter. It is left to the discretion of the proper military authorities. The first declaratory conclusion may therefore be set aside as unmaintainable.

The second and alternative conclusion for declarator, that ‘the pursuer is entitled to the rank of bombardier in the aforesaid regiment, from 20th November 1861 till he shall be legally discharged from the army with all the emoluments and privileges accruing therefrom,‘ is in a somewhat different position. The declarator asked is, as already noticed, inconsistent with the admitted fact that the pursuer was legally discharged in 1866, but perhaps it might be competent, under and within that conclusion, to declare that the pursuer had been a bombardier, and was a bombardier at the date of his discharge. He avers that he was reduced from the rank of bombardier by the sentence of a court-martial and the order of Sir Hugh Rose, as (it is said) Commander-in-Chief in India, and that that conviction and order were afterwards cancelled by due military authority, and it may follow that that cancellation effected the restoration of the pursuer to the rank of bombardier. Probably it did. I am inclined to think that it would not be competent for the Court to declare that. But I do not see clearly that it would be incompetent for this Court to inquire into that as a matter of fact. Possibly it might be conceded as a matter of fact that the pursuer had the rank of a bombardier. But the objection to a declaratory finding to that effect or to any inquiry into that matter of fact, is that, in my opinion, the pursuer could take no benefit from it. He could not, and indeed does not, ask a mere abstract finding on the subject leading to no practical result, but concludes for a finding that he is a bombardier, in order to lead to the conclusion that he is entitled to the emoluments of a bombardier. Accordingly he proceeds to conclude for count and reckoning by the defender for all outstanding emoluments and pay due to him as sergeant or bombardier, and he claims £2000 under this conclusion. He makes this large claim on the footing that he is entitled to be paid as a sergeant; but for that claim, as has been seen, there is no ground whatever. His claim is therefore reduced to the arrears of his pay and emoluments as bombardier, and if he is to be paid as bombardier only, then he avers in condescendence 20 ‘that there is still due to him as bombardier a sum of £10, 13s. 9d. or thereby in name of pay and good conduct pay.’ The pursuer maintains that this claim for arrears of pay is a claim which the Court is bound to entertain, and which makes it competent to the Court to decide whether he was a bombardier and entitled to be paid as such, and whether the amount which he claims in that capacity remains due to him. The pursuer referred to various cases chiefly in regard to ecclesiastical questions for the purpose of showing that the Court will inquire into the status of a pursuer so far as is necessary to ascertain and vindicate his pecuniary rights, and will, in doing so, disregard any proceedings by any Court purporting to affect his pecuniary rights and emoluments, if it could be shown that such proceedings were incompetent or ultra vires of the Court. I do not require to go into such analogous cases, because, in the first place, I am of opinion that the averment as to these arrears is quite insufficient and irrelevant. It is only stated that the sum claimed is due for pay and good conduct pay, but it is not explained under what contract or statute the pursuer's right to it arises, or why it is due by the War Department. The pursuer does nothing but aver that that sum is due to him, and his counsel did not at the debate supplement that bald averment by any explanation. It surely could not be maintained that every member of the reserved forces, or, for that matter, every soldier in the army, could be entitled to a proof by making a bare averment in an action that so much pay or emolument was due to him. I would be prepared to hold this averment irrelevant on these grounds. But the defender submitted another, and probably a better answer, which was, as I understood him, that no action at all lies for the pay of a soldier or an officer. The theory seems to be that when money is voted by Parliament for

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the payment of the army, it is voted to the Crown, but that it is entirely in the power of the Crown to determine how it shall be applied; and that no individual has a right enforceable in a court of law to any part of it.

Mr Clode states the law as follows:— ‘No suit or action, therefore, can be brought against the Crown or its ministers for the recovery of pay, pension, or other grant for military service. These grants range themselves under that class of obligations described by jurists as imperfect, which want the “ vinculum juris,” although strong in moral equity and conscience. Their performance is to be sought for by petition, memorial, or remonstrance, not by action in any court of law.’ That statement of the law seems fully borne out by decisions in England of high authority, which it is sufficient to quote— Macdonald v. Steele, 1793; Peake's Reports 175; 3 Revised Reports, 680; Gidley v. Palmerston, 1822; 3 Brod. … Bing., 275, 286; 24 Revised Reports, 668; Gibson v. East India Company, 5 Bing., N.C., 262, 274, where the ground of the rule and the necessity of it are explained by Tindal, C. J.

I think, therefore, that the pursuer cannot recover the arrears which he alleges to be due, and, therefore, that no pecuniary or patrimonial interest is involved in the question whether he is or was a bombardier. Assuming that he was, his claim for arrears of pay is, notwithstanding, irrelevant and incompetent. That becomes a mere abstract question, and the rule applies that the Court will not pronounce a declarator which has no bearing on any patrimonial interest.

There remains the conclusion for £750 as damages for the wrongs which the pursuer has suffered through the illegal convictions of which he complains. Now, on this point, the question does not arise whether this Court could set aside the decrees of the court-martial complained of as ultra vires or incompetent. I am disposed to think that it could not. But I am not asked to interfere in that manner, for these illegal proceedings have already been set aside by competent military authorities. The pursuer does not challenge the proceedings of the military authorities, but rather founds on them, and maintains or may maintain that they prove conclusively that he has suffered a legal wrong. He might probably have sued those members of the court-martial who did the wrong, if it could be shown that the proceedings were incompetent or ultra vires. But I am unable to see on what principle the War Department can be made liable. There is no authority for the proposition that when a Court falls into error or acts incompetently or exceeds its jurisdiction, any department can be made answerable. There is no reason why there should be such liability for the errors of courts-martial more than for the errors of other civil or criminal courts. It is said that the War Department is liable for the faults of the officers who formed the courts-martial as being the servants of the War Department; the answer is that they were not the servants of the War Department, but the servants of the Crown; and, if it be said that this action, although nominally against the War Department, is really against the Crown, the conclusive answer appears to be that the Crown cannot be sued for wrong done by itself or its servants.

It is settled, indeed, than an action will not lie against the Crown on a contract entered into by the servants of the Crown, or for breach of contract by the servants of the Crown— Thomas v. The Queen, 10 L.R. Q.B. 31, 43; Windsor By. Co. v. The Queen, 11 L.R. App. Cas. 607, 614. In these cases it was, I think, clearly recognised that the Crown could not be made liable in damages for wrong or delict or quasi-delict. Nor, it is thought, can it be liable where the damage has arisen from the negligence of the servants of the Crown— Viscount Canterbury v. Attorney General, 1842, 1 Philip Ch. Cas. 306; Lord Advocate v. Hamilton, 29 S.L.R. 213. Questions of delicacy may arise in applying this principle, but I am unable to think that there is any doubt that neither the Crown nor any Public Department can be liable for the blunders of a court or of the officers supposing themselves to form a court, or of the Commander-in-Chief of the Forces in India.

On the whole I am satisfied that the present case cannot be supported in any of its parts, and that the defender is entitled to absolvitor.”

The pursuer reclaimed.

The pursuer was not represented by counsel in the Inner House. He appeared in person, and was permitted to read a statement of his case.

Counsel for the defender were not called upon.