No case has been found before The Petitions of Right Act 1860 in which the existence has been asserted of an implied condition in contracts with the Crown that funds should be appropriated to answer the expenditure involved. But, in Macbeath v. Haldimand [91], at pp. 1038, 1039 Lord Mansfield did say that those who advance money for the public service trust to the faith of Parliament and that, if there were a recovery against the Crown by a suppliant by petition of right, application must be made to Parliament. The doctrine first finds expression in Churchward v. The Queen [92], in the judgment of Shee J. The contract there sued upon contained an express condition making it subject to parliamentary provision of funds which Shee J. described as a condition precedent, and, as a result of a public controversy about it, Parliament had specially excluded the transaction from the purposes to which funds were lawfully applicable. (Cf. Todd's Parliamentary Government in England (1867), vol. I., pp. 497-503.) The observations of Shee J. [93] were obiter, but they have been accepted as a statement of the rule of law that, in contracts for the payment of public moneys, it is implied that the liability of the Crown is conditional upon appropriation of funds. In R. v. Fisher [94], at p. 167, in answer to a claim by a servant of the Crown for the balance of salary erroneously withheld although due to him under the Public Service Acts, the defence was raised on behalf of the Crown, that in the annual Appropriation Acts the full salary had not been provided, and Churchward's Case [95] was relied upon. In the course of an elaborate judgment, in which he denied the validity of this contention on more than one ground, Madden C.J. expressed the opinion that the Victorian Crown Remedies and Liability Act ought not to receive the construction placed upon it in Alcock v. Fergie [96], according to which a judgment against the Crown could be satisfied, like a judgment under the Federal Act, only out of moneys otherwise made legally available for the purpose, but should be construed as itself amounting to a special appropriation of moneys to answer such judgments. But he proceeded to say that, whatever the provision meant, "the proceedings provided by it are to occur after judgment, and the Crown's argument now is that the non-provision of the money in the Appropriation Act is an answer to the maintenance of the action, so that, in such cases, judgment could never be reached at all" [97]. In dealing with the point that, as the Appropriation Act only provided the amount of salary already paid to the suppliant, nothing further could be recovered against the Crown, Sir Ford North, who delivered the judgment of the Privy Council, said: "This was very fully and exhaustively dealt with by the Chief Justice; and his reasoning on this point was not challenged at their Lordships' bar. But in any case their Lordships would not enter upon the consideration of that question, as they are satisfied that, the respondent having finally established the validity of his claim against the Crown for the sum for which he has recovered judgment, the provision necessary to satisfy that obligation will be readily and promptly made" [98]. (Cf., per Higgins J., Williamson v. The Commonwealth [99], at p. 4.) For some time afterwards the absence of appropriation does not appear to have been seriously relied on by the Crown as an answer to a claim ex contractu. But, in Commercial Cable Co. v. Government of Newfoundland [100], at p. 617, an observation upon the subject was made by Viscount Haldane in delivering the judgment of the Privy Council, and, perhaps, as a result, the defence has of late been raised not infrequently both by and against the Crown. In that case the contract upon which the Crown was sued was held to be invalid because it had not been approved by the House of Assembly of Newfoundland pursuant to a rule of that House, made under the authority of statute, requiring that in all contracts extending over a period of years and creating a public charge, actual or prospective, entered into by the Government, there should be inserted the condition that the contract should not be binding until it had been approved by resolution of the House. A new administration had repudiated the agreement and had sought no approval for it. Viscount Haldane in concluding the judgment remarked [101]: -- "What view the Legislature might have taken had it been properly submitted is a topic into which no Court of law can enter, and no damages can be recovered for breach of any implied promise so to submit it. For all grants of public money, either direct or by way of prospective remission of duties imposed by statute, must be in the discretion of the Legislature, and where the system is that of responsible government, there is no contract unless that discretion can be taken to have been exercised in some sufficient fashion." In Rayner v. The King [102], Adams J., speaking for the New Zealand Court of Appeal, pointed out that the words "there is no contract" meant "no contract to pay." But I think it is certain that His Lordship did not mean that no contract of the Crown was actionable under the Crown Remedies legislation of the Dominions and Colonies unless and until money was appropriated to answer it, and this indeed his subsequent utterances make clear. This is true also of the expressions used by Viscount Haldane in Mackay v. Attorney-General for British Columbia [103], where he speaks of the "legal validity" of the contract although he founds this proposition on Churchward's Case [104]. The decision of the Board simply was that a contract of a description which the Legislature had empowered the Lieutenant-Governor to make could not be supported unless made by him in such a manner as to comply with the statute. But in the Wool Tops Case [105], where the Court gave judgment against the Crown's claim upon a contract made by it with a subject, Isaacs J., as he then was, on the strength of these observations actually took, as an additional reason for concurring, the ground that the contract involved payment of money by the Crown and was therefore wholly void, so that it was unenforceable at the suit of the Crown as well as of the subject. The doctrine was again considered by Isaacs and Rich JJ. in Commonwealth v. Colonial Ammunition Co. [106], but in that case for the contract to be valid an Order in Council was required under sec. 63 of the _Defence Act_1903-1918, and all their Honors decided was that the provision by Parliament of funds for the service involved by the contract did not cure such a defect. In Kidman v. The Commonwealth [107] a contractor with the Crown, who incurred a liability which passed into an arbitration award, failed, on various grounds which do not call for particular examination, in a defence based upon the supposed invalidity of the contract because no funds appeared to have been voted to meet the expenditure involved. Higgins J. [108], however, simply stated the doctrine to be that "even if a contract is binding on the Commonwealth there is no way of getting payment from the Commonwealth unless under an appropriation by Parliament." In the meantime, the House of Lords had decided Attorney-General v. Great Southern and Western Railway Co. of Ireland [109]. In the course of his opinion in that case, Viscount Haldane [110], after saying that he assumed that a contract had been established which still subsisted, proceeded: -- "But what is the nature of the remedy on this footing made available against the Crown? The Court of Appeal appear to me to have proceeded on the footing that the remedy in case of its breach was analogous to that on the ordinary contract of a private individual. Surely sec. 14 of the Petition of Right Act contains a warning that this is not to be assumed. Under that Act no personal judgment against the Sovereign can be rendered. All that the Act provides is, in a public matter, that the Treasury may be required to pay what has been found due out of any moneys in their hands legally applicable thereto, or which may be thereafter voted by Parliament for that purpose. This is not a provision which is to be expected otherwise than in the restricted form in which it is made." Then, after illustrating this statement by the Commercial Cable Co.'s Case [111], Auckland Harbour Board v. The King [112] and Churchward's Case [113], he continued [114]: -- "My Lords, I am of opinion that the judgments in these three cases illustrate a principle which is definitely recorded in our text books of constitutional law. However clear it may be that before the Revolution Settlement the Crown could be taken to contract personally, it is equally clear that since that Settlement its ordinary contracts only mean that it will pay out of funds which Parliament may or may not supply." This passage makes it clear, in my opinion, that Viscount Haldane regarded the provision of funds by Parliament simply as a contractual condition and as a condition which must be fulfilled before actual payment by the Crown, but not as a matter going to the formation, legality, or validity of the contract, and not as a condition precedent to suit, at any rate, under enactments which authorize a judgment giving no right to the subject except to payment out of moneys made legally available by Parliament. This is clearly shown by the second alternative in the statement of the terms of sec. 14 of the Petition of Right Act in the sentence, "All that the Act provides is, in a public matter, that the Treasury may be required to pay what has been found due out of any moneys in their hands legally applicable thereto, or which may be thereafter voted by Parliament for that purpose" [115]. This alternative necessarily implies that judgment against the Crown may be given on a petition of right to enforce a contract notwithstanding that up till that time moneys have not been appropriated or provided by Parliament out of which the liability may be lawfully discharged. Indeed the judgments of all the noble Lords proceed upon the tacit assumption that, unless the liability had been transferred to the Irish Treasury, the petitioners may succeed notwithstanding that the British Parliament had made no money provision for it. Subsequently, in the same matter as was dealt with by this Court in Kidman's Case [116], the subject applied to the Privy Council for special leave to appeal from a decision of the Supreme Court of New South Wales [117] giving liberty to enforce the award. In the course of the argument, which is reported [118], upon the Commercial Cable Co.'s Case [119] being referred to, Viscount Haldane said [120] : "In that case we distinctly laid it down (in a judgment which I think I delivered) that the Governor-General, as representing the Crown, could enter into contracts as much as he liked, and even, if he made the words clear, to bind himself personally. But he was presumed only to bind the funds which might or might not be appropriated by Parliament to answer the contract, and if they were not, that did not make the contract null and ultra vires; it made it not enforceable because there was no resagainst which to enforce it. The Lord Chancellor" (Lord Cave). "Like Churchward v. The King [121]? Viscount Haldane. Yes, but the contract stood just as was said in Churchward v. The King [122]." His Lordship also said: -- "We have had all these things dealt with quite recently in an Irish case in the House of Lords (Attorney-General v. Great Southern and Western Railway Co. of Ireland [123]). How can you say that, under the Federal Act, this was null? Just look at the section which gives the executive power: `The executive power of the Commonwealth is vested in the King and is exercisable by the Governor-General as the King's representative.' That goes beyond the Constitution of Canada, and it enables him, the Prime Minister of the Commonwealth, to enter into contracts; whether they are enforceable depends upon whether there was an appropriation to answer them, but that is another thing."