CHAP. 4. Proceedings by and against the Crown 335
596. No remedy exists where an officer appointed under statutory
authority loses his office through its premature termination by Act
of Parliament without compensation, since the agreement has
become impossible of performance: Reilly v. The King, ante.
Members of the armed forces x cannot sue for arrears of pay, for no
engagement between the Crown and members of the armed forces can
be enforced by a court of law: Leaman v. The King, [1920] 3 K.B.
663; Kynaston v. Attorney-General (1933), 49 T.L.R. 300.
The rule that "the Crown can do no wrong" made it impossible Tprtious
before 1948 to sue the Crown either in respect of wrongs expressly ^Uw'
authorised by the Crown or in respect of wrongs committed by before 1948.
servants of the Crown in the course of their employment: Viscount
Canterbury v. Attorney-General(1842), 1 Ph. 306. The actual wrong-
doer, who is usually a subordinate official, could, and still can, be
sued, but the Crown as his employer was not liable vicariously, nor
the superior officer who is directly responsible for the employment.
A superior official is not responsible for wrongs committed by his
subordinates unless he has expressly authorised them; for all the
servants of the Crown are fellow-servants of the Crown and not of
one another: Raleigh v. Goschen, [1898] 1 Ch. 73; Bainbridge v.
Postmaster-General^ [1906] 1 K.B. 178. The actual wrongdoer
cannot, however, plead the orders of the Crown as a defence. In
practice the Treasury Solicitor •usually defended an action against a
subordinate official and the Treasury, as a matter of grace, paid
damages if he was found liable. In J94J2 the Lord Chancellor ap-
pointed an independent person to certify (if tEe plaintiff so desired)
whether a subordinate was acting in the course of his employment.
This enabled .the plaintiff before proceeding with his action against
the actual tortfeasor to determine whether or not he could expect the
Crown to stand behind the defendant and meet any damages which
the court might subsequently award to him against the defendant
personally.(But the big flaw remained that nobody could sue the
Crown, theTargest employer of labour in the country, on the same
basis as an ordinary employer could be sued for the torts of a servant
cdminitted in the course of employment. Until 1948 government
departments enjoyed the immunity of the Crown unless a statute
expressly provided otherwise. Various statutes attempted to simplify
proceedings against particular departments, but the varying methods
adopted caused great perplexity.2
1 For civil pay, see Lucas v. Lucas and High Commissioner for India, [1943] P, 68
which followed the same rule, but see "A Civil Servant and his Pay," by D. W.
Logan, 61 L.Q.R. 240, and Button v. Attorney-General (1923), 39 T.L.R. 294,
where the House of Lords treated civil pay as recoverable in contract so long as it
was not sued for on the basis of recovering for wrongful dismissal,
2 See 3rd ed. pp. 266-67 and Minister of Supply v. British Thomson Houston
Co. [1943] K.B. 478.