missioners must be taken to have made the contract specially themselves, and not as agents of the Crown. He said: "The Commissioners of Works make these contracts, in the course of their duty, in all parts of the country in respect of works required for His Majesty's Government. I think the true inference is that they make them in their own capacity." It is not easy to see how, if they made the contract (for the erection of a post office) in the course of their duty and for the purposes of the Government, they could possibly have been contracting for themselves, and not as agents for the Crown. Ridley, J.'s view apparently did not commend itself to Phillimore, J. He thought the Commissioners were in the position of servants of the Crown, who may be sued on their contracts for the purpose of obtaining a judgment declaratory of the right of the subject who has contracted with them. He points out that this is sometimes the case by statute, and that the Commissioners have been sued under particular statutes. (See as to these statutes above, p. 80.) But how does it follow from this that they can be sued where there is no statutory provision to that effect? He suggests that the mere fact of their being incorporated without reservation confers the privilege and liability of suing and being sued. But it is not easy to see why, and the author is aware of no authority to the effect, that incorporated servants of the Crown are any more liable to be sued, apart from statutory provision, than unincorporated servants of the Crown, if they are contracting for the Crown and not for themselves. (See as to this, Mersey Docks and Harbour Board Trustees v. Gibbs (1866), L. R. 1 H. L. 93; 35 L. J. Ex. 225; Sanitary Commrs. of Gibraltar v. Orfila (1890), 15 A. C. 400; 59 L. J. P. C. 95; Wheeler v. Commrs. of Public Works in Ireland, [1903] 2 I. R. 202, at p. 247. As to cases where servants of the Crown render themselves personally liable under contracts, see below, p. 645.)

It is greatly to be regretted that the Crown did not proceed further with the case. The defence and reply, raising the point of law, will be found printed below, p. 138.

Reference must also be made on the general question to the cases on the position of the Irish Commissioners of Public Works, which are fully discussed below, pp. 84, 85.

It should perhaps be mentioned that in Hearn v. Commrs. of Works and Public Buildings (1899), not reported, the Commissioners were sued in the County Court for damages for injury to a vehicle alleged to be due to the bad state of repair of a road in Regent's Park. The plaintiff was non-suited, but it does not appear that the question of prerogative was raised by the defendants.

R. v. McCann (1868), L. R. 3 Q. B. 677; 37 L. J. M. C. 123, shows that property in the occupation of the Commissioners as

servants of the Crown is not liable to poor rate, and it appears from Perry v. Eames, [1891] 1 Ch. 658; 60 L. J. Ch. 345, that where property is vested in them as trustees for the Crown, no rights of light can be acquired over it.

The Commissioners of Public Works in Ireland.

Power to appoint Commissioners was given to the Crown by sect. 5 of the Public Works (Ireland) Act, 1831 (1 & 2 Will. IV. c. 33). By sect. 44, all mortgages and assurances are to be made to the secretary of the Commissioners, and by sect. 49 the secretary for the time being may sue upon them. Sect. 44 is superseded by sect. 3 of the Public Works (Ireland) Act, 1869 (32 & 33 Vict. c. 74), cited below. Quare, whether sect. 49 is affected thereby. Sects. 86-88 provide for the participation of the Commissioners by their secretary in bankruptcy proceedings. By sect. 91 the Commissioners may sue and be sued in the name of their secretary for the time being, and no such action or suit is to abate or be discontinued by the death or removal of such secretary, or by the act of the secretary without the consent of the Commissioners, but the secretary for the time being is always to be deemed the plaintiff or defendant as the case may be; and no action or suit is to be brought against the Commissioners collectively or individually, or against their secretary, except in the High Court, and with the leave of such Court first had and obtained, and upon such terms and conditions as the Court directs.

Sects. 21, 22 provide for the issuing of a warrant by the Commissioners to their solicitor, requiring him to proceed against persons who have become bound by virtue of any obligation entered into in pursuance of the Act, and who have made default or broken conditions; and such proceedings are not to be discontinued or abated without the authority of the Commissioners under their seal, exhibited to the Court. It is further provided that no writ of scire facias is required in such proceedings, but that upon the production of the Commissioners' warrant an extent is to issue.

The Public Works (Ireland) Act, 1836 (6 & 7 Will. IV. c. 108), s. 6, provides for the making of obligations to the secretary instead of the King, together with a warrant of attorney for confessing judgment thereon.

The Public Works (Ireland) Act, 1869 (32 & 33 Vict. c. 74), s. 2, constitutes the Commissioners a corporation with perpetual succession and a common seal, and power to hold lands of any tenure for the of that Act, and of taking, acquiring and holding any lands in Ireland required for any department of the public service, or for

purposes

any public purpose. By sect. 3, all lands so required and taken by the Commissioners, or required to be vested in their secretary by any Act, are to be granted to and held by the Commissioners as such corporation and not otherwise.

The Public Works Loans Act, 1892 (55 & 56 Vict. c. 61), s. 8, declares that the Commissioners of Public Works in Ireland shall be a body corporate by that name, with perpetual succession and a common seal, and with power to hold lands for the purposes of their duties, and that all contracts or securities heretofore made with or given by [to] them or their secretary shall be deemed to be made with or given to them as such body corporate, and not otherwise.

By sect. 5 of the Act of 1869, the Commissioners so incorporated by that Act are to be entitled to the benefit of all covenants and agreements relating to the lands so vested in them, and to maintain all actions, suits and other proceedings founded upon them in their own name as such corporation, and are similarly to be liable for all payments, covenants and agreements in respect of such lands, and their secretary is to be discharged from all liability, but existing legal proceedings are not to be affected.

It is not at all clear from these provisions that the corporation can be sued otherwise than through its secretary, though a limited power of suing as a corporation is conferred upon it.

The Public Works Loans Act, 1888 (51 & 52 Vict. c. 37), s. 7, makes a certificate purporting to be under the common seal of the Commissioners evidence that the sum stated therein to be due to them from any person named therein, or to be charged on any property named therein, is so due or so charged.

The whole position of the Commissioners is discussed in Wheeler V. Commrs. of Public Works in Ireland, [1903] 2 I. R. 202. That case decided by a majority (Palles, C.B., dissenting) that the Commissioners, in so far as their position and duties under the St. Stephen's Green Act, 1877 (40 & 41 Vict. c. cxxxiv.), were concerned, were not servants of the Crown, and that although they were in possession of no funds under the Act, and obtained none from the property vested in them under the Act, and were dependent on moneys provided by Parliament for the carrying out of their duties under it, yet they were liable for damages for negligence in a suit brought against them in their corporate capacity by the injured person.

The opinion of the majority of the Court really rested upon the view that St. Stephen's Green had not been in any sense Crown property before it became vested in the Commissioners, and that as owners of that estate they must be regarded as standing in the same position as the previous Commissioners, who were in no sense servants

of the Crown. Palles, C.B., on the other hand, thought that, by the vesting of the property in the Commissioners, it was intended that they should maintain it, whatever its previous character, at the expense of the Crown, and in their actual capacity of servants of the Crown. The case, therefore, does not have a wide bearing outside its particular circumstances.

The basis of the decision is clearly seen if it be contrasted with the earlier case of Murphy v. Soady (1886), reported [1903] 2 I. R. 213, n. This was an exactly similar action for negligence brought against the Commissioners by their secretary under sect. 91 of the Public Works (Ireland) Act, 1831, though it is not at all clear how that section had any application to the particular case. The property vested in the Commissioners, out of which this action arose, was the Phoenix Park, Dublin, and it was held that in respect of that property the Commissioners were merely agents for the Crown.

Sharpley v. Hornsby (1852), 2 Ir. C. L. R. 590, was an action. against the secretary of the Commissioners for damages for injury to the plaintiff's mill done in the exercise of their powers as a drainage authority, and it was held to lie, on the ground that they were merely a body acting for public purposes. Compare the similar decision with regard to the Commissioners as Commissioners of Kingstown Harbour in Campbell v. Hornsby (1872), Ir. R. 6 C. L. 37; 7 C. L. 82; and in Burrell v. Tuohy, [1898] 2 I. R. 271.

See further on this subject the somewhat parallel cases as to the Corporation of Trinity House below, p. 104.

The Public Works Loan Commissioners.

This body was constituted by the Public Works Loans Act, 1875 (38 & 39 Vict. c. 89), s. 4, to hold office for five years, or for such period as is authorised by any Act appointing them. The most recent Act is the Public Works Loans Act, 1905 (5 Edw. VII. c. 22), which appoints certain Commissioners to hold office until April 1st, 1911.

By sect. 5 of the Act of 1875, the Loan Commissioners may sue and be sued in the name of their secretary for the time being; and no action or suit, in law or equity, brought or commenced by or against the said Commissioners in the name of their secretary for the time being, shall abate or be discontinued by the death or removal of such secretary, or by the act of such secretary without the consent of the said Commissioners; but the secretary to the said Commissioners for the time being shall always be deemed the plaintiff or defendant in such action or suit, as the case may be.

Sect. 24 provides that when the Commissioners have taken possession of any property under the Act, or exercised the powers conferred by the Act in relation to any rate, neither they nor their secretary, nor any person appointed by them in that behalf, shall be liable to account to any person interested in the equity of redemption in such property or rate for any moneys, which, but for their wilful act or default, they or he might have received when so in possession or exercising such powers, or for any moneys other than those which have actually come to their or his hands.

By sect. 33, every sum payable under any security made in pursuance of the Act shall be made payable to the use of Her Majesty, her heirs and successors, and may be recovered as a specialty debt due to the Crown under 33 Hen. VIII. c. 39 (see below, p. 147).

By sect. 48, service on the Commissioners may be effected by service on their secretary, or by sending to or delivery at their office.

The Paymaster-General.

"The Office of His Majesty's Paymaster-General" was constituted by the Paymaster-General Act, 1835 (5 & 6 Will. IV. c. 35), and developed by the Paymaster-General Act, 1847 (11 & 12 Vict. c. 55), and other Acts. No general power to sue is given to this official, nor is he liable to be sued; but see below, p. 103, as to his power to sue on behalf of the Commissioners of Chelsea Hospital.

Under the Court of Chancery (Funds) Act, 1872 (35 & 36 Vict. c. 44), s. 5, the Consolidated Fund is liable to make good all moneys and securities paid or transferred into Court or vested in the Paymaster-General under the Act.

If the Lord Chancellor, either with or without a representation made to him by any suitor, certifies to the Treasury in writing that the Paymaster-General has failed to pay any money or transfer any securities in Court required by order of the Court to be paid or transferred, or has been guilty of any default with respect thereto, the Treasury are to cause the sum so certified to be paid out of the growing produce of the Consolidated Fund into the Bank of England to the credit of the Paymaster-General for the time being, for and on behalf of the Supreme Court of Judicature. (See the Supreme Court of Judicature (Funds, &c.) Act, 1883 (46 & 47 Vict. c. 29), s. 2.)

The reported authorities dealing with this matter are: Jones v. Jones (1879), reported [1901] 1 Ch. 464, n.; Slater v. Slater (1888), reported [1897] 1 Ch. 222, n.; Marsh v. Joseph, [1897] 1 Ch. 213; 66 L. J. Ch. 128; and Bath v. Bath, [1901] 1 Ch. 460; 70 L. J. Ch.