Advocate of the Treasury, on the basis of Sections 3, 4 and 5 of the Act of 31st March 1877 No. 3761 Second Series, is not held to be founded in fact or in law.

Not in fact, because the Defendant Administrations of the State replied to the judicial plaint brought by Pietro Orcesi for compensation of damages caused by the requisition of a number of his post-horses, made and carried out in 1859 by order of the then Parma Government, that the requisition had not taken place by order of that Government, that the horses had not been destined for public. service, that the debt had not been acknowledged, that the new State was only liable for debts of the Administration; that a similar requisition would have to be reckoned also amongst those damages by war which cannot be recovered, that there was no Act which supported the action and that it was necessary to have recourse to the supreme powers of the State; all this has been always stated and maintained even in the present appeal. From this it is evident that the plaint of Orcesi, by which he tried to obtain an essentially and purely civil right, did not give rise to disputes and pronouncements as to the competency of the judicial authority, to decide as to whether or not there was an Act which would support the attempted action.

If, therefore, the exception of incompetency was not formulated by the public Administrations, who were always parties to the action, it cannot be otherwise brought forward in accordance with sub-section 1 of Section 1 of the Act of 1877 which had been invoked, and it is consequently useless to cite the subsequent Sections 3, 4 and 5, which contemplate the case of a real and proper question of competency or of a positive or negative conflict.

This new exception has, therefore, no foundation in law, because incompetency or want of jurisdiction cannot be confounded with inadmissibility or non-existence of right of action. This is so true, that the objection of competency was not brought forward, that it was never stated before what authority Orcesi should bring his plaints, but the reply given to him was: " ad rem non pertinet actio"; and Parliament was indicated for strengthening the objection, that there was civil Act which would support the right and that Parliament could make it or settle the matter in

the best possible manner. In other terms, the public administrations, now the Appellants, concluded that the action of Orcesi was not admissible, as it did not contain the conditions established by law for its being tried; in no record of the matter, and neither in the appeal, the Act of

the 23rd December 1875 and that of 1877 had been cited, and neither had there been opposed any provision of the said acts or the sub-section 1044 of the Austrian Code which had to do with the matter Mazzacotto Maschi and Treasury, on which the Treasury Advocate bases his prejudicial exception. This, however, cannot exercise any influence upon the matter under consideration because the competency to distribute the compensation for the events which must be reckoned amongst war damages was attributed by the said section to the political authority, while it had not been pointed out what other authority ought to take cognisance of the plaint of Orcesi. From this it is evident that the Judge, on merits, ought to have decided on the fitness of the action to be proposed and on the trial of the same and not the Judge on competency, because there was not even a trace of contrast between Judge and Judge and there could not be such by reason of the nature of the action and the character of the cause. Moreover, while not wishing to contradict the fact that the Govern ment when ordering and commanding acts "jure imperii, non gestionis, et non utitur jure privatorum," and, therefore, does not contract administrative obligations, it cannot be denied that the act of the Government or the special and personal command, which alters equality, creates relations with a private party, whose contracts must be defined by some authority, as results from the identical provisions of the Parma Code which are stated to have been violated in the matter and which are taken from the Code of France and reproduced also in the Code of the Kingdom.

Considering that Sections 408, 1105, 1107, 2085 and 2087 of the Civil Code of the late Duchy of Parma R.D. 18th March 1860, 4004 and Act 15th April of the said year No. 4059 are stated to have been violated by ordering the payment of the sum of lire 1110 and interest "a die litis" already liquidated by the Superior Administrative Authority of the ex-Duchy of Parma in favour of Pietro Orcesi, contractor for the Royal mails, who, on the evening of the 30th May 1859, having been requested by an official and by order of the Ministry of War to do so, delivered 9 pairs of horses with as many postillions, 3 pairs of which remained in the castle and were returned after 3 days, while the other 6 pairs served for the transport of cars and cannons and were returned after the departure of the reigning Duchess on the 11th June, when the troops laid down their arms.

Considering that, in the matter of requisitions or

improper damages, the dispate is less subject to controversy that in the case of war damages or damages inflicted on the occasion and by reason of war, as, for instance, by precautionary measures and preparations for military defence carried out even beyond the territory. In this matter there exists contradiction between those who would and those who would not liken the same to the damages produced in the fury of the battle, which, by common consent, are attributed to an inevitable necessity, which made Wattel say "Malheur à celui sur qui ils tombent."

That, on the other hand, it is much more contentious whether the requisitions of forage and horses within limited proportions and duly carried out, but not paid for, during the short period while the rule of the abandoned or annexed State continued, constitute a moral and civil debt of the State succeeding the former. All obligations contracted during the legitimate rule of the old State, with respect to the preservation and defence of its dominion, even if the utility for the whole of the inhabitants may be impugned, pass to the new State, while the rights of private parties, as against the State which exercises acts of its sovereignty, are subordinate and must be subject to those of the Supreme authority. As a matter of fact, it appears reasonable that, as long as the legitimate rule continues, the necessary means for its protection should be adopted and that private individuals, who have supplied such means, either from obedience or through subjection or because more or less compelled to do so, should be compensated for the damages to which they had been involuntarily subjected. The theory of Wattel, which is accepted also by the more modern doctrine and by the jurisprudence of this and of other Courts, did not allow of the distinction of the disputed legitimacy of various States, reconstituted by political revolutions into national unity, by exaggerating to a large entent the exception exemplified in the Act of 15th Dig, De reg. jur. and 15, 16, paragraph 1 Dig. Locat. The Italian Parliament also repudiated it from a political and economic point of view, proclaiming that the requisitions carried out and not paid for by the fallen Government constituted a debt of the National Government. Less known but more recent writers than Wattel also agree that in the new State the whole of the rights and obligations passes from the old State to the new one.

The distinction which it was desired to introduce between legitimate, hereditary, elective and feudal concessions and

the 23rd December 1875 and that of 1877 had been cited, and neither had there been opposed any provision of the said acts or the sub-section 1044 of the Austrian Code which had to do with the matter Mazzacotto Maschi and

Treasury, on which the Treasury Advocate bases his prejudicial exception. This, however, cannot exercise any influence upon the matter under consideration because the competency to distribute the compensation for the events which must be reckoned amongst war damages was attributed by the said section to the political authority, while it had not been pointed out what other authority ought to take cognisance of the plaint of Orcesi. From this it is evident that the Judge, on merits, ought to have decided on the fitness of the action to be proposed and on the trial of the same and not the Judge on competency, because there was not even a trace of contrast between Judge and Judge and there could not be such by reason of the nature of the action and the character of the cause. Moreover, while not wishing to contradict the fact that the Govern ment when ordering and commanding acts "jure imperii, non gestionis, et non utitur jure privatorum," and, therefore, does not contract administrative obligations, it cannot be denied that the act of the Government or the special and personal command, which alters equality, creates relations with a private party, whose contracts must be defined by some authority, as results from the identical provisions of the Parma Code which are stated to have been violated in the matter and which are taken from the Code of France and reproduced also in the Code of the Kingdom.

Considering that Sections 408, 1105, 1107, 2085 and 2087 of the Civil Code of the late Duchy of Parma R.D. 18th March 1860, 4004 and Act 15th April of the said year No. 4059 are stated to have been violated by ordering the payment of the sum of lire 1110 and interest "a die litis" already liquidated by the Superior Administrative Authority of the ex-Duchy of Parma in favour of Pietro Orcesi, contractor for the Royal mails, who, on the evening of the 30th May 1859, having been requested by an official and by order of the Ministry of War to do so, delivered 9 pairs of horses with as many postillions, 3 pairs of which remained in the castle and were returned after 3 days, while the other 6 pairs served for the transport of cars and cannons and were returned after the departure of the reigning Duchess on the 11th June, when the troops laid down their arms.

Considering that, in the matter of requisitions or

improper damages, the dispute is less subject to controversy that in the case of war damages or damages inflicted on the occasion and by reason of war, as, for instance, by precautionary measures and preparations for military defence carried out even beyond the territory. In this matter there exists contradiction between those who would and those who would not liken the same to the damages produced in the fury of the battle, which, by common consent, are attributed to an inevitable necessity, which made Wattel say "Malheur à celui sur qui ils tombent."

That, on the other hand, it is much more contentious whether the requisitions of forage and horses within limited proportions and duly carried out, but not paid for, during the short period while the rule of the abandoned or annexed State continued, constitute a moral and civil debt of the State succeeding the former. All obligations contracted during the legitimate rule of the old State, with respect to the preservation and defence of its dominion, even if the utility for the whole of the inhabitants may be impugned, pass to the new State, while the rights of private parties, as against the State which exercises acts of its sovereignty, are subordinate and must be subject to those of the Supreme authority. As a matter of fact, it appears reasonable that, as long as the legitimate rule continues, the necessary means for its protection should be adopted and that private individuals, who have supplied such means, either from obedience or through subjection or because more or less compelled to do so, should be compensated for the damages to which they had been involuntarily subjected. The theory of Wattel, which is accepted also by the more modern doctrine and by the jurisprudence of this and of other Courts, did not allow of the distinction of the disputed legitimacy of various States, reconstituted by political revolutions into national unity, by exaggerating to a large entent the exception exemplified in the Act of 15th Dig, De reg. jur. and 15, 16, paragraph 1 Dig. Locat. The Italian Parliament also repudiated it from a political and economic point of view, proclaiming that the requisitions carried out and not paid for by the fallen Government constituted a debt of the National Government. Less known but more recent writers than Wattel also agree that in the new State the whole of the rights and obligations passes from the old State to the new one.

The distinction which it was desired to introduce between legitimate, hereditary, elective and feudal concessions and