Part III.—Who may sue and be sued.
17
Part III.—Who may sue and be sued
Sect. 1.—In General.
Sect. 1.
In General.
Any person may sue or be sued.
Rules of procedure may affect right and liability.
21. The general rule of law is that any person, natural or artificial, may sue and be sued in the English Courts (c). Thus individual foreigners and foreign corporations (d) (not being alien enemies (c)) may sue and be sued; so too infants (f), lunatics (f), and married women (g), and persons of so exalted a position as a Queen Consort or Prince of Wales (h). It must be understood, however, that this right to sue and liability to be sued are subject to the rules of procedure framed by our Courts, and may in particular cases prove to be restricted by such rules, especially those relating to service of process outside the jurisdiction (i). Further, it is necessary to mention specifically certain persons or classes of persons who are excepted from the general rule enunciated above, or whose rights and liabilities are restricted by special provisions.
Sect. 2. The Crown.
No action against Crown.
22. Though the Sovereign may, if he see fit, sue a subject in his own Courts, no suit can be maintained against him in such Courts by a subject, for it is a maxim of our law that " the King can do no wrong" (k).
Tort committed by servant of Crown.
If the act complained of by a subject be in the nature of a personal tort, his remedy is against that servant of the Crown who actually committed or authorised it (l), for as such act, even if
- (c) Com. Dig. tit. " Action."
- A trade union occupies an anomalous position and cannot now be sued for any tort (Trade Disputes Act, 1907 (6 Edw. 7, c. 47), s. 4). See title Trade And Trade Unions.
- (d) Dutch West India Co. v. Van Moses (1724), 1 Str. 612; Newby v. Van Oppen and Colt's Patent Firearms Co. (1872), L. R. 7 Q. B. 293; La Bourgogne, [1899] A. C. 431; Logan v. Bank of Scotland (No. 2), [1906] 1 K. B. 141. See these cases and the title Practice and Procedure as to the service of writs upon foreign corporations and the powers of the Court to stay proceedings against them where a foreign tribunal would be more convenient.
- (e) As to alien enemies, see p. 20, post. An alien friend may sue in our Courts, though under a disability in his own country, if such disability be not recognised here. Thus a French prodigal may sue, and his conseil judiciaire cannot intervene [Re Selot, [1902] 1 Ch. 488; Worms v. De Valdor (1880), 49 L. J. (CH.) 261). See generally title Aliens.
- (f) As to infants and lunatics, see pp. 21, 22, post.
- (g) A married woman may now sue and be sued in all respects as if she were feme sole (Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), s. 1 (2)). As to the joint liability of a husband and wife for the wife's torts, and as to their alternative liability in the case of her contracts, see title Husband and Wife.
- (h) Com. Dig. tit. "Action." A Queen Consort was always regarded as a feme sole.
- (i) See title Practice and Procedure.
- (k) Canterbury v. The Queen (1843), 12 L. J. (CH.) 281; Tobin v. The Queen (1864), 33 L. J. (C. P.) 199; Feather v. The Queen (1865), 6 B. & S. 257, 295. According to Comyns (Dig. tit. " Action "), " until the reign of Edward I. the King might have been sued in all actions as a common person." An action for salvage does not lie against the Crown (Young v. SS. Scotia, [1903] A. C. 501; see also The Cybele (1878), 3 P. D. 8).
- (l) Musgrave v. Pulido (1879), 5 App. Cas. 102; Nireaha Tamaki v. Baker, [1901] A. C. 561; Tobin v. The Queen, supra.
H.L.— I.
C
