Ex parte Sir Charles James Napier.

Queen's Bench Division

Original Eng. Rep. version, PDF

Original Citation: (1852) 18 QB 692

English Reports Citation: 118 E.R. 261

Monday, May 31st, 1852.

S. C. 21 L. J. Q. B. 332; 17 Jur. 380. Principle applied, Grant v. Secretary of State for India, 1877, 2 C. P. D. 457; R. v. Secretary of State for War, [1891] 2 Q. B. 336.

Byles Serjt. moved (a)2 for a mandamus calling upon the East India Company to pay to Lieutenant General Sir Charles James Napier the sum of 28,198 rupees, 14 annas and 6 pice, under the following circumstances, alleged on affidavit.

In 1843 Sir C. J. Napier commanded certain land forces of Her Majesty and of the East India Company, then serving in Scinde in the East Indies. In that year, the said forces captured from the enemy certain booty and prize of war, which, by Royal

(c) The Court having decided on the preliminary question, the points arising as to the certificate itself were not further discussed.

(a)1 Lord Campbell C.J and Erie J, were at the Criminal Court of Appeal. (a)a Before Lord Campbell C.J., Coleridge, Erie, and Crompton Js.

262 EX PARTE NAPIER 18Q. B. 693.

warrant dated llth November 1845, was intrusted to the East India Company to be distributed as prize-money, in proportions therein pointed out, among the officers and soldiers of the capturing force (b). Under this warrant Sir C. J. Napier received, in 1848, and 1849, and (as he deposed) believed himself entitled to, sums of money amounting to 68,0001. sterling.

By commission under Her Majesty's sign manual, dated 13bh March, 1849, Sir C. J, Napier was appointed Commander in Chief of Her Majesty's forces then serving [693] in the territorial possessions of the East India Company, during Her Majesty's pleasure : and by like Royal commission of the same date he was appointed to the local rank of General in the Array in the East Indies from 6th March, 1849. And by another commission under the common seal of the East India Company, dated 19th March, 1849, he was appointed commander in chief of all the Company's military forces employed, or which might thereafter be employed, in the East Indies, with certain exceptions. He was also appointed by the Company an extraordinary member of the Council of India. The commissions and appointment remained in force in and after October and November 1850.

Sir C. J. Napier arrived in India on May 6th 1849, and performed the duties imposed by the said commissions and appointment from thence till December 1850, when he resigned the said offices. The pay of the forces serving in India has been and is payable and paid by the Company ; and, during the period last mentioned, the proper salary of Sir C. J. Napier as commander in chief under the said commissions was 14,305 rupees, 7 a. 7 p. (equivalent to 14301. 11s. sterling) per calendar month, and was payable monthly, about the third day of each month for the month preceding, according to the usual practice, to Sir C. J. Napier. The salary was duly paid down to and including the month of April 1850: but in May and June of that year, respectively, the Company objected to pay the full sum, and claimed to deduct, and did at first deduct, 3366 rupees, 7 a. 7 p. per month, alleging as a reason that a larger sum had been shared among the capturing Army for prize money than ought to have been distributed, and that the Company were entitled to deduct Sir C. J. Napier's share of [694] the over payments by monthly instalments out of his pay, till the whole alleged excess, amounting to 20,198 rupees, 14 a. 8 p., should have been deducted. Sir C. J. Napier protested against this claim; and, in consequence, the deducted sums were paid over to him, and the full monthly salary was received by him down to September, inclusive. But, in paying the October and November salary, the Company again claimed to deduct for the alleged over payments of prize money ; and they accordingly stopped and refused to pay the whole of the October salary and a portion of that for November, the whole deduction amounting to 20,198 rupees, 14 a. 8 p., equivalent to 20191. 17s. 6d. sterling, which the Company (as Sir C. J. Napier's affidavit stated) were bound to pay him and had no colour of right to withhold.

Payment was demanded of the Company, and refused, on the ground that the sum named had originally been issued to Sir C. J. Napier in error on account of his share of the Scinde prize money, and had been deducted by the Government of India on adjusting the account.

Byles Serjt. contended that, under these circumstances, Sir C. J. Napier had a legal right to the sum withheld, but could not recover it by action ; and therefore that a mandamus lay, a.nd ought to be granted. The arguments used and authorities cited will appear sufficiently by the judgment of the Court.

Cur. adv. vult.

Lord Campbell C.J., on a subsequent day of the term (June 5th), delivered judgment.

This was a motion for a rule to shew cause why a mandamus should not issue

(b) The warrant directed : " That, in case any doubt shall arise respecting the claims to share in the distribution aforesaid, or respecting any demand upon the said captured booty or plunder, the same shall be determined by the directors of the East India Company or by such person or persons to whom they shall refer the same: which determination thereupon made shall with all convenient speed be notified in writing to the Commissioners of our Treasury : and the same shall be final and conclusive to all intents and purposes, urdess, within three months after the receipt thereof at the office of the Commissioners of our Treasury, we shall be graciously pleased otherwise to order."

18 Q. B. 896. EX PARTE NAPIER 263

directed to the East India [695] Company, commanding tbem to pay to Lieutenant General Sir Charles Napier the sum of 20,198 rupees. He alleges that this is the amount of an improper deduction from the pay due to him as Commander of the Queen's forces in India, and as Commander of the forces of the East India Company, in the months of October and November 1850; but he seeks to recover it as the arrears of such pay.

The first question to be considered is, whether, if his pay had been withheld from him without any reason being assigned, there is any jurisdiction in this Court to order by mandamus the arrears which he claims to be paid to him by the East India Com¡pany. If there be not, we cannot entertain the question whether the East India Company were justified in making the deduction.

The applicant must make out that there is a legal obligation on the East India Company to pay him the sum he demands, and that he has no remedy to recover it by action. The latter point becomes material only when the former has been established ; for the existence of a legal right or obligation is the foundation of every writ of mandamus. But it seems to us that the attempt to shew that there was any obligation on the East India Company, which the law will enforce, to pay any sum of money to Sir Charles Napier, either as Commander of the Queen's forces or as commander of the native troops, has entirely failed. A legal obligation, which is the proper substratum of a mandamus, can only arise from common law, from statute, or from contract. Of course the obligation here contended for cannot arise from the common law, and is not rested on contract. We have therefore to see whether there be any enactment of the Legislature by which it can be supported. [696] It was not contended that an officer in the Queen's Army at home could apply to us for a mandamus on the ground that his pay is improperly withheld from him; and the application is entirely founded on certain statutes respecting the East India Company and the Government of the dominions belonging, to the Crown in India. We will examine these statutes in chronological order.

The first relied upon is stat. 33 G. 3, c. 52, " for continuing in the East India Company," "the possession of the British territories in India," and "for establishing further regulations for the government of the said territories." By sect. 128 of that statute it is enacted that all sums issued by the Paymaster General of His Majesty's forces for and on account of His Majesty's forces serving in India shall be repaid by the said company, and that the actual expenses which have been or which hereafter shall be incurred for the support or maintenance of the said troops shall be borne and paid by the said company. But this is an arrangement between the East India Com¡pany and the British Government, and establishes no privity between the Company and any officer whatever.

Then comes stat. 53 G. 3, c. 155, by which in common language the charter of the East Indian Company was renewed; and which enacts (sect. 55) that the revenues of the Company shall be applied, " in the first place, in defraying all the charges and expenses of raising and maintaining the forces, as well European as native, military, artillery and marine, on the establishments in the East Indies." Still this appropriates no part of these revenues in particular to the commander in chief of the forces.

[697] Next, we have an Indian Mutiny Act, 4 G. 4, c. 81. This enumerates a great number of offences for which military men may be tried by court martial in the East Indies; and, by sects. 43 and 44, enacts that no paymaster shall receive fees, or make any deductions, out of the pay or allowance which shall be due to any officer or soldier in the Company's Army, other than usual deductions; and that, if any officer or paymaster shall unlawfully detain or withhold for the space of one mouth the pay and allowances of any officer after such pay and allowances have been received, then, upon proof thereof before a court martial, every such paymaster or officer so offending shall be discharged from his employment, and shall forfeit 800 sicca rupees : provided that ifc shall be lawful for the Governor General in Council to give orders for withholding the pay of any officer for any period during which such officer shall be absent without leave. But aa yet no amount of pay is assigned to the commander in chief or any officer ; and no directions are given to the Government to issue the pay or allowances; and no time is mentioned when any pay or allowances shall become due.

We were then referred to stat. 3 & 4 W. 4, c. 85, under which India is now governed, and will continue to be governed till the 30th of April 1854. By sect. 79 of this statute it is enacted that the return to Europe of any governor general or

264 EX PARTE NAPIER 18Q. B.898.

commander in chief shall be deemed a resignation of his office, and that the salary and other allowances of any such governor general or other officer shall cease from the day of such his departure or resignation. This certainly supposes that the commander in chief is entitled to some pay and allowances till his departure or resignation, but is entirely [698] silent as to what shall be the amount, or by whom, or when, it is payable.

Nor is the applicant's case at all advanced by the statute which he next quotes, 7 W. 4 & 1 Viet. c. 47, "to repeal the prohibition of the payment of the salaries and allowances of the East India Company'sofficers during their absence from their respective stations in India." This Act provides (sect. 1), that the prohibition of the payment of salaries to officers in the service of the East India Company during their absence from India shall not extend to cases of sickness, and (sect. 3), that the court of directors shall have power to order the refunding of any part of the salary or allowance received by any officer or servant of the Company, and that the sum so to be refunded shall be a debt due to and recoverable by the Company; without giving any officer any right which he did not before possess.

Chief reliance however was placed on stat. 3 & 4 Viet. c. 37, s. 35, which was asserted to be a s tat u table recognition of the right of the commander in chief to be paid his salary by the Company, without any deduction. But the statute when examined turns out to be merely a new edition of the India Mutiny Act; and seel. 35 is no more than a repetition and consolidation of sects. 43 and 44 of stat. 4 G. 4, c. 81. It therefore merely renders a paymaster liable to be tried by a court martial for receiving fees or making improper deductions, or detaining in his hands pay or allowances more than a month after he has received them,

The statutory obligation upon the Company to pay the salaries claimed is in no degree established. Sir Charles Napier in his affidavit says that " the pay of the [699] forces serving in India has been and is payable and paid by the said company; and that, during the period of his filling the said offices as aforesaid, the proper pay or salary of him this deponent as commander in chief, under the said commissions from Her Majesty and the Honourable the East India Company, was, in Company's rupees, the sum of 14,305 rupees, 7 annas and 7 pice per calendar mouth, which is equivalent to 14301. lls. sterling, and was payable monthly on or about the 3d day of each month for the next preceding month, according to the usual practice, to this deponent by the Honourable the East India Company." He thus relies merely on practice, which may amount to an honourable but does not to a legal obligation.

We will now examine the authorities quoted by the learned counsel who made the motion. He began with Gibson v. East India Company (a), in which the Court of Common Pleas held that the retiring pension of a military officer of the East India Company does not upon bis bankruptcy pass to his assignees. But this waa with a view to prove (which it does very conclusively) that no action would lie for the arrears in question at the suit of Sir Charles Napier against the East India Company; and it has no tendency to shew the legal obligation. Tindal C. J. says (5 New Ca. 274, 275) : "It is clear that no action could be supported against any one to recover the arrears of half pay granted by the Crown, at least unless the money has been specifically appropriated by the Government, and placed in the hands of the paymaster [700] or agent to the account of the particular officer; and there is no ground upon general principle to hold that an action could be maintained against any one, unless under the same circumstances, in the present case." " Many grounds of inexpediency in allowing a claim of the present description to be recoverable in a Court of Law readily suggest themselves. If the retired pension which is given for former services can be recovered by action, why should not the pay and allowances for actual service be equally so during their continuance? And yet how frequently is it not only expedient, but absolutely necessary, that military pay should be suspended and kept in arrear beyond the d»y when it becomes due, and.until the service, in respect of which it is earned, has been entirely completed'? Not to mention the expense and inconvenience which must arise if a suit might be instituted by each individual officer, and the prejudice which such litigation would necessarily occasion to the military service." "The grant in question" "appears to us to range itself under that class of obligations which is described by jurists as imperfect obligations; obligations which want the ' vinculum

(a) 5 New Ca. 262. Gidley v. Lord Falmerston, 3 Brod. & B. 275, was also cited.

1S&B.701. THE QUEEN V. SAVILE 265

juris/ although binding in moral equity and conscience ; to be a grant which the East India Company, as governors, are bound in foro conscientiae to make good, but of which the performance is to be sought for by petition, memorial, or remonstrance, not by action in a Court of Law." These observations seem to us to be equally applicable to the full salary of a commander in chief as to the half pay of a lieutenant colonel, and not only to an action, but to a proceeding in Court of Law by mandamus.

[701] We have been also referred to Rex v. The Directors of The East India Company (4 B. & Ad. 530), where a mandamus was actually granted against them, ordering them to transmit to India a despatch on the "Political Department," as altered by the board of control; but this was under an Act of Parliament, 33 G-. 3, c. 52, s. 12, which expressly imposed upon the directors the legal obligation to do so.

Reliance is then placed on the case of Rex v. Lords of the Treasury (4 A. & E. 286), in which this Court granted a mandamus to the Lords of the Treasury to pay to Mr. Carraichael Smyth the arrears of a pension granted by the Crown for services : but (as has been repeatedly explained (c)) this decision went entirely on the ground that the Lords of the Treasury had admitted that they had in their hands the sum of money in question, and that they had appropriated it to bis use.

The last ease cited was Regina v. Lords of the Treasury, In re The Queen Dowager's Annuity (16 Q. B. 357), in which this Court intimated an opinion that, if the arrears of the annuity claimed had been due, mandamus would have been the proper remedy to recover them. But the ground was, that, if the right existed, ib was a legal right, and there was no mode of enforcing it except by this prerogative writ: for the annuity was charged on the Consolidated Fund; and the statute 4 & 5 W. 4-, c. 15, 8. 13, enacted that the payment of such an annuity can only be obtained by the warrant of the Lords of the Treasury, and had imposed upon them the duty of [702] granting the warrant when payment of the annuity becomes due.

Thug, upon a full examination of the statutes and decisions relied upon, it is quite manifest that the distinguished officer who now seeks redress by a writ of mandamus has mistaken his course: and therefore the rule to shew cause for which he has applied cannot be granted.

Rule refused.