COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4119, 2 June 1874, Page 3

COURT OF APPEAL.

Monday, June 1. (Before the Chief Justice, Mr. Justice Johnston, Mr. Justice Gresson, and Mr. Justice Richmond.) rOWDRELL V. SEALV. The Chief Justice delivered the following judgment herein : This is an action for specific relief brought by the plaintiff against the defendant as Commissioner of Crown Lands for the Province of Hawke’s Bay. The declaration sets forth that, on the 29th Slay, IS6G, at a sale by auction of Crown Lands held in pursuance of a proclamation by the Superintendent of the Province of Hawke’s Bay for that purpose under the provisions of the Land Regulations in force in that Province, the plaintiff purchased a section of land described in the proclamation, the boundaries, relative position and contents whereof were delineated and shewn by the official map or plan produced shewn and exhibited to the plaintiff and other persons at the sale, and which map or plan the declaration alleges was then and there produced exhibited and shewn to the plaintiff and others bv the defendant as Crown Lauds Commissioner, as a correct and authenticated map or plan showing the contents of each section of land then offered for sale pursuant to the said proclamation. The declaration further alleges that the plaintiff, relying on the accuracy of the statement contained in the proclamation and official map, paid £302- to the Receiver of 1 Land Revenue for the section so by him purchased, and that * ho has frequently asked for, but lias been unable to obtain a grant from the Crown in respect of the entire quantity of laud so by him purchased ; and then alleges, that on the 12th May, 1872, the plaintiff was informed by the defendant that he had lately discovered that the actual contents of the section purchased by the plaintiff were not fifty-six acres as stated by the proclamation and shewn by the official map but only forty-five acres. It alleges also that the land which the plaintiff had purchased in 1866, at £5 9s. 3d. an acre, was at the time of the commencement of this action ■worth to the plaintiff £2O per acre. • The declaration then prays, “ that the actual contents of the said section, of land as the same has been laid off upon the ground may be ascertained, and that the plaintiff may he declared to be entitled to a grant from the Crown for such actual concents, and to such sum for compensation by reason of the deficiency in area of the said section as may appear just : And that thereupon a grant from the Crown may be issued to the plaintiff and such compensation be paid to him accordingly ; and that such further'or other relief maybe decreed to the plaintiff as shall appear just and expedient.” To this declaration the defendant has demurred on two grounds, viz. (1.) That the declaration shows no contract between the plaintiff and the defendant. (2.) That the defendant, as Commissioner of Crown Lands, is not liable to be sued under the provisions of “ The Crown Lands Act, 1862,” or of any other Act. It appears from the signature to the schedule of lands set out in the declaration, that another gentleman, and not the defendant, was Commissioner of Crown Lands at the time of the abovementioned sale, but this was little insisted upon in the argument before us, —the defendant preferring to rest his defence on the broad ground, that the Commissioner of Crown Lauds is not liable to be sued at all in an action of this nature.

The action is substantially an action for specific relief for the performance of a contract for the purchase of lauds of the Crown brought against the Crow-n, and it is not contended that the same can be maintained unless it has been given by statute. The plaintiff therefore has recourse to that statute in which, he contends that a remedy of this description has been given against the Crown, viz., to “ Tbe Crown Lands Act, 1802.” By that enactment the Legislature repealed the old Ordinances under which the demesne lands of the Crown had theretofore been managed; and, after providing for the appointment of Commissioners by the Governor, the Act proceeds, by section 7, to define their powers and duties, distributing them under twelve different sub-sections intended to embrace the whole field of the Commissioner’s ordinary duties. Those powers and duties are all to bo exercised as, from their very nature, in most instances they could only bo exercised, “for and on behalf of the Crown." Thus the Commissioner, is empowered to prevent trespass on Crown lands, to expel trespassers and intruders, (with detailed provisions as to the mode in which he may deal with the stock goods or chattels of intruders encumbering such lauds), he is to ascertain and define the boundaries, and is invested with quasi judicial powers to settle all disputes and differences in relation to leases or licenses, or even between lessees or licensees of such lauds, in relation to such leases or licenses. Powers are also given to the Commissioner to enter upon and take possession of Crown lands in the name of the Crown, to distrain and sue for and receive rents due to the Crown, and also to determine any determinable contracts, and to resume possession on non-performance of contracts relating to Crown lands. Thus far the powers and duties of the Commissioner do not touch or relate to transactions of the kind litigated in the present action. But the Commissioner is clothed with other powers and duties which deserve to be specially noticed. Thus, by sub-section “ a ” to section 7, since repealed by “ The Crown Grants Act, 18CG,” he was to manage and superintend the issue of Crown grants and other instruments of disposition relative to Crown lands; and it must be on tbe substituted provisions of section 4 of “The Crown Grants Act, 180(1," that the plaintiff founds bis prayer in this action against the Commissioner, viz., that ho bo declared entitled to a grant of the actual contents of the section by idm purchased. But the duties of the Commissioner, as prescribed in the Act of 180(1, and in that of 1802, in the preparation and issue of Crown grants, are ministerial only. These Acts do not empower him to bind the Crown by any contract for the issue of such grants, nor is lie empowered to decide as to the right of any subject of the Crown to demand the issue of a grant. Wo therefore look in vain for any principle on which, independent of positive enactment, any person claiming such grant from the Crown can affect the Crown by an action against the Commissioner. We proceed however to notice certain other powers and duties cast on the Commissioner by section 7, which more nearly connect themselves with the subject of tho present action. Thus, by sub-section “ 6,” the Commissioner is to perform and exorcise all such duties and functions as, by laws for tbe time being in force in any Province, relating to tho sale, &c.,

of Crown lands, are required, or authorised to be performed and exercised by the Commissioner ; by sub-section he is to enforce contracts respecting the sale or other disposition of Crown lands, and to compel payment of money due to the Crown in respect thereof; and, by sub-section “w,” lie may Recover purchase monies in respect of such sales. But even in cases such as these lart mentioned the Commissioner is the mere servant of the Crown, and by the express terms of the subsection he can exercise those powers only for and on behalf of the Crown.

The Legislature, however, having invested him with these powers, provides, by section 8, for the procedure, whereby the Commissioner may carry them into effect, through the intervention of the Courts of Justice. And it is on the latter words of this section, read in connection with section 11 that the plaintiff relies to support the px*esent action. The section, down to a certain clause, is as follows: “All actions suits and proceedings by or on behalf of her Majesty respecting Crown lands within any Province, or respecting any contract relating thereto, or any breach of any such contract, or any trespass on such land or any damages accruing by reason of such trespass, or for the recovery of any rents purchase moneys or other moneys iu respect of such land, or In respect of any damages or wrongs whatsoever in any -way suffered by the Crown iu respect of Crown lands may be commenced prosecuted and carried on by and iu the name of the Commissioner on behalf of her Majesty.” Thus far, section Bis intelligible. The Legislature, having clothed the Crown Lands Commissioner with various powers ■ duties and responsibilities, has thus provided the procedure hy which ho may assert the powers and enforce the remedies which he is required to exercise and enforce, on behalf of the Crown, The classes of action are specified; the person or corporation in whose Interest those actions are intended also is designated ; and these actions the Commissioner may commence, prosecute, and carry through all their details to judgment, but solely for and on behalf of the Crown. The whole scope and object of the Act thus far has been shown to be to provide for the protection and management of the demesne lands of the Crown, while there appeal’s no kind of intimation that the Legislature intended to confer upon the subject any right of action against the Crown. But section S concludes with “and the Commissioner may be plaintiff or defendant as the ruse mat/ require in any such action suit or proceedings.” Xn a similar direction and it must be presumed with a similar object the Commissioner is mentioned as a defendant in section 11 as follows :—“ The Commissioner in any such action shall recover and be liable to costs and damages as any plaintiff or defendant in ordinary course of law, and the Commissioner mat/ be indemnified in respect of such costs and damages by the Governor.” It must be admitted, that the construction of these apparently conflicting provisions is embarrassing. The actions provided for in the first part of section S are actions by or on behalf of her Majesty. But the plaintiff contends that the words “ such action suit or proceeding” at the end of section S and in section 11 are descriptive of the character of the action itself, and not of the person in whose interest the action is commenced. The plaintiff would read the latter words of section 8 as meaning, the Commissioner may be plaintiff or defendant in any action, suit, or proceeding respecting* Crown lands within any Province or respecting any contract relating thereto, or any breach of any such contract, and would thus give effect to section 11, whereby iu any such action the Commissioner, being a defendant, is made liable to costs and damages,—with the saving condition, that he may bo indemnified for such costs and damages by the Governor. It is possible that the Legislature may have intended so to enact ; but we see no means to give any such effect to the enactment, as it stands. The reading above suggested excludes all mention of the Crown as a party either to the supposed contract or to the action founded thereupon, and the plaintiff therefore must either import words into section 8 which the Legislature has not used, —including actions against the Sovereign,—or he must interpret the words “such action suit or proceeding ,” at the end of the section with reference to the same “action suit or proceedings” mentioned in the earlier part of that section, which are instituted by or on behalf of her Majesty, and none other. Indeed the whole matter comes to this—the Legislature has provided in express terms for the conduct of actions to be instituted by or on behalf of her Majesty, but has not in express terms given to the subject any right of action against her Majesty, and in the absence of express terms the Crown is not bound.

Our attention was directed to “ the Crown Redress Act, 1871.” An Act passed to provide for the enforcement of claims against the Crown in New Zealand. By the oth section, actions like the present for specific relief for the performance of any contract for the purchase of lauds of the Crown are expressly excepted out of the operation of that statute. This, Mr Travers suggested, might indicate that the Legislature deemed all such actions to have been sufficiently provided for by the Act of ISG2. The exception however might have been made because the Legislature would not sanction such actions against the Crown at all. And this seems the less improbable, when we consider tho means provided by the Act of 1871 to give to a plaintiff under that Act the full fruits of his judgment, and compare them with the provision made for a similar object by section 11 of the Act of 1802. By the last mentioned section, no fund is specified out of which a plaintiff against the Crown may get either his damages or his costs, whilst it can hardly have been intended that he should seize the property or the body of the Commissioner for tho debt due from the Crown; and the indemnity by the Governor must remain to a successful plaintiff unfruitful, until some fund is created and placed at Ids Excellency’s disposal to satisfy tho plaintiffs judgment recovered. “Tho Crown Redress Act 1871” contemplates that any judgment obtained by the subject against tbe Crown under that Act shall be satisfied out of money to be especially appropriated by tho General Assembly to tho purpose, thus offering to the successful plaintiff the good faith of the Colony itself as his security. Such considerations make ns tho less regret that the words relied on by the plaintiff in sections 8 and 11 of the Act of 1802 remain inoperative. At all events wo deem it clear, that this Court could not give to tho plaintiff in this action the specific relief which he seeks, and wo further are of opinion that the defendant as Crown Lands Commissioner is not liable to be sued in the present action under tho provisions of “Tho Crown Lands Act 18G2,” or of any other Act. The judgment on this demurrer must therefore pass for tho defendant, with costs. ATTORNEY-GENERAL V. BUNNY. The Chief Justice delivered tho following judgment herein; — Upon this demurrer tho first substantial question raised is, as to the validity of the several proceedings which have resulted in tho transfer of tho sum of TIO,OOO from tho Provincial Account proper, to tho credit of the account styled “The Provincial Account No. 2.” These proceedings are impugned in three several stages. The Attorney-General has contended, that tho Ordinance styled “Tho Bridges Roads and other Works Appropriation Act, 1871 is void as an appropriation of Provincial revenues ; that tho Auditor’s certificate of 27th January, 1874, was illegally given ; and that the Superintendent’s warrant itself, on tho" authority of which the transfer was made, is not a valid warrant under tho 25th section of tho Constitution Act. Upon all these points there is much to bo urged in favor of the view taken by the infoimaut. But on tho latter point our opinion is so clear and decided, that it is unnecessary to enter upon the discussion of tho validity of the Ordinance and certificate. It is, and has been throughout tho argument, plain to us that a wan ant, which is essentially a mere transcript'.of the schedule to tho Act of Appropriation, is not a warrant within the 25th Section. The Superintendent, as a branch of tho Provincial Legislature, hits already by the Act of Appropriation given his sanction to an

expenditure not exceeding' the lump sums named in the Act as maxima. The 25th Section must mean something more than that the Superintendent should repeat an approval already given. In truth, the 25th section casts upon him a duty of Executive Governmenfc quite distinct from the function which, as a, branch of the Legislature, he has already discharged. The Legislature having already spoken in general terms, it is made the duty of the head of the Provincial Executive to see

that the particular application corresponds with, and keeps witliin, those general terms. The provision in question makes him responsible for the ultimate issue of the money to those persons who, by performance of the stipulated services, shall have entitled themselves thereto. His warrant should therefore specify the names of these payees, or their agents, and ought only to issue upon due proof that these persons have executed their side of their engagements with the Provincial Government, or, at the least, that, under some lawful contract, they are entitled to a payment in advance. Imprest advances to officers charged with the execution of particular services, or to agents of the Treasury at distant places, do not violate the spirit of the enactment. But it seems proper in the case of such issues of public money, to cover by warrant its ultimate disbursement when the advance is accounted for. The present is no case of an imprest advance ; but the Superintendent has attempted, contrary to all legal principle, to delegate to another person the entire constitutional duty imposed upon himself. But the demurrer raises a more difficult question, namely, whether the Supreme Court, possessing in this Colony the powers of the Court of Chancery, can, in the exercise of its equitable jurisdiction, give the relief, or any part of the relief, claimed in this proceeding by the Attorney-General. It is, as confessed on the part of the informant, impossible to find amongst public bodies known to the English law and Constitution, anything analogous to the Provincial Executive Governments of New Zealand. The many cases which might be cited to show that Municipal Corporations, parish vestries, and public bodies and functionaries exercising special statutory powers are amenable to the jurisdiction of a Court of Equity, in a proceeding of the present kind, are, there fore, not directly in point. The case is new in the instance, and we are compelled to consider whether the general principles on which a Court of Equity has exercised its protective and preventive jurisdiction over public funds justify and require our interference with the acts of the defendant in the manner here prayed, . The cases which present the closest analogy to the present are those in which persons invested with statutory powers over the expenditure of funds raised by local taxation have been restrained at the suit of the AttorneyGeneral from the abuse of those powers. These cases are numerous ; and we shall have to refer more particularly to some of them. The question for our consideration is, whether there is any essential feature in the case before us which should prevent us from extending to it the jurisdiction which has been exercised in England in the instances to which ave advert. It has to be considered by us, what arc the principles upon which the Court of Chancery has interfered for the protection of public funds in the cases adverted to; and whether, in the nature of the defendant’s office, or of the fund which he administers, viewed in regard either to its source, or to the purposes to which it is applicable, there is anything to withdraw the defendant from the operation of those principles.

And first it will bo convenient to consider the character of the defendant's office. The Constitution Act, as is wolf known, contains scarcely any provision relative to the Executive Government of Provinces. There is the single enactment of section 25, making requisite the Superintendent’s previous recommendation of all grants of -public money, and prohibiting any issue of such money otherwise than upon warrants granted by the Superintendent. In section 66, also, there is a provision for the payment over to the respective Treasuries of the Provinces, for the time being established in New Zealand, of the surplus revenues of the Colony, for the public uses of such Provinces, These important clauses, read in connection with the rest of the statute, indicate, in a general way, the position to be occupied by the Provincial Governments as bodies charged witli the expenditure for local purposes of Government, of a portion of the Colonial revenues. The constitution in detail of the Executive Governments of Provinces has been worked out by local, chiefly by Provincial, legislation. The present information cites in the margin sections 1,6, and 7of “The Provincial Act to establish an Executive Government for the Province of Wellington, 1853.” On reference to this Ordinance it appears that the Provincial Treasurer is appointed by, and holds office during the pleasure of, the Superintendent. The office of Superintendent being elective, it follows that the Provincial Treasurer is, in no souse, an officer of or under the control of the Crown. The entire administration of the Provincial Executive Government being, under the Ordinance, vested in the Superintendent, the Treasurer is for many purposes a subordinate officer. But in regard to the custody and disbursement of the public moneys in his charge, he possesses a legal sUUux involving independent duties and responsibilities. ' This independent status is even based upon the Constitution Act itself ; which, by its mention of Provincial Treasuries, implies the existence of Provincial Treasurers ; and, by its requirement of the Superintendent’s warrant for the issue of money, implies the existence of an officer to whom such warrant shall be directed. (Compare section 51 of the Constitution Act.) The tenure of the Provincial Treasurer’s office at the will of the Superintendent in no degree affects the legal responsibilities which attach to that office. The circumstance that the Provincial Treasurer is not an officer of the Crown appears to bo of some moment in reference to the existence of a necessity for the Court’s interference. Any argument tending to show that there could bo no need for such a jurisdiction would tend also to show that no such jurisdiction existed. In the case of one holding office at the pleasure of the Crown, he may be deprived, by dismissal from office, of the custody of a fund which he threatens to misapply. But this is a remedy which cannot here be resorted to. There is another point in regard to the position of a Provincial Treasurer which requires notice. It may be argued that he has no property ill the funds in his custody ; and so cannot, in the ordinary sense of the term, be a trustee of those funds. Wo think, however, that it is enough, and that the cases show that it is enough, that the defendant has over the funds a power which he has abused, and threatens to go on abusing. The cases appear to us to stand upon the principle of preventing the misuse of an authority over public funds, and not on that of enforcing the equitable right of ownership against the legal. In the class of cases which has been above adverted to as most resembling the present case, the interference of the Court of Chancery has commonly been referred to its special jurisdiction over charitable trusts ; the fund which the Court has been called upon to protect having boon subject to a charitable use. By a charitable use, the Court of Chancery -understands, either such public and charitable purposes as are expressed in the statute 43 Elis., c. 4, commonly called the statute of charitable uses, or purposes analogous to them. (See IVforico v. Bishop of Durham, ,9 Yes. 399 ; S.C., on appeal, 10 Vos'. 522.) Some of these purposes expressed in the statute are, in the popular sense of the term, charitable ; as the relief of aged, impotent, and poor people ; others arc of a character more generally beneficial, as tho repair of bridges, ports, havens, sea banks, and highways. The statute has received a very liberal exposition. In tho Attor-ney-General v. Heclis 2 Sim. and Stir. 67, tho Vioo-OhancoUor, Sir John Loach, says : “ I am of opinion that funds supplied from the gift of tho Crown, or from tho gift of the Legislature, or from private gift, for any legal, public, or general purpose, are charitable funds

jjto be administered by Courts of Equity. It is l not material that the particular public or ; ! general purpose is not expressed in the Statute [ | of Elizabeth ; all other legal public or general i J purposes being within the equity of that statute.” This wide definition of a charitable purpose within the statute has frequently Deen • acted upon ; and has been very recently approved by high authority. (Beaumont v. Olivier L.R. 4 ch., 309.) On the other hand, the same learned judge was of opinion that no fund was subject to the control of the Court of Chancery as a charitable fund unless it had originated in a donation of some kind. This view is perceptible in the extract already given from his Honor’s judgment in the case of Attorney-General v. Tleells, and is distinctly • put in a subsequent passage of the same judgment. “I am of opinion,” he says, “ that it is the source whence the funds are derived, and not the mere purpose

to which they arc dedicated, which constitutes the use charitable ; and that funds derived from the gift of the Crown, or the gift of the Legislature, or from private gift, for paving, lighting, cleansing, and improving a town, are, within the equity of the statute of Elizabeth, charitable funds to be administered by the Court. But,” the Vice-Chancellor continues, “where an Act of Parliament passes for paving, lighting, cleansing, and improving a town, to be paid for wholly by rates or assessments to be levied upon the inhabitants of that town, the funds so raised, being in no sense derived from bounty or charity, in the most extended sense of are not charitable funds to be administered by this Court.” The doctrine here laid down by Vice-Chancellor Leach, that no fund is to be administered by the Court as charitable unless it originates in a gift of some kind ; and that a rate raised by local taxation cannot constitute such a fund ; has been disapproved of by Lords Eldon and lledesdale, in the House of Lords, in the case which we shall presently have to cite more at large of Attorney-General v. Mayor and Corporation of Dublin 1 Bligli N.S. 312. The difference between Lord Eldon and Sir John Leach is fully discussed by Lord Hatherly, when Vice-Chancellor, in the case of AttorneyGeneral v. Eastlake, II Hare 205. The ViceChancellor says:—“There can be no doubt that the conclusion of the House of Lords was, that the mode in which the rate was levied was not to be looked at, but the purpose to which it was to be applied; and I apprehend the purpose must be the real criterion.” Further on, addressing himself to the particular case before the Court, in which the defendants were commissioners empowered by a local Act to levy rates on the inhabitants of the town of Plymouth for paving, lighting, watching, and improving the same, the Vice-Chancellor proceeds:—“lt is sufficient to say that it is a large and general purpose for this town, and that, for that purpose, certain moneys are to be levied. I cannot see that the source from which these moneys here are derived, namely, from taxation, can make any difference as to the charitable or public nature which would bo attributable to the funds if they proceeded from a more limited sphere of bounty; and if there be no distinction on that ground, the

Attorney-General is the proper person to represent those who are interested in the general and public, or charitable purpose.” Thus the result of the authorities is to give an exceedingly comprehensive definition of a charitable fund, in the legal souse; including within it moneys granted by Parliament, or raised by local taxation, for local public uses; and the Attorney-General has invited us to declare that, in this technical sense, the public revenue of a Province constitutes a charitable fund, and is accordingly subject to the control of this Court, as a Court of Equity. Looking to tile sources of that revenue, there seems no reason to contest tins conclusion, however strange it may appear. Provincial revenue consists, partly of a portion of the general and territorial revenues of the Colony paid into the Provincial chest, under tho authority of Acta of the General Assembly, partly of the proceeds of local taxation imposed by the Provincial Legislature. As regards the sources of . the fund, there is nothing which does not agree with tho definition of a charitable fund. As regards the purposes to which the Provincial revenue is applicable, there is more difficulty in saying that it comes within the definition. Those purposes may be defined as the public uses of the Province according to appropriations to be made thereof by the Provincial Legislature. (See sec. 66 of tbe Constitution Act.) Provincial revenue, when appropriated, may come within the equity of the Statute of Elizabeth. But, until appropriation, there is no determinate purpose to which tho revenue is dedicated. This appears to constitute a distinction—possibly not, for the present purpose, a material distinction, but still a real practical difference—between tile case of the revenue of a Province of this Colony, and that of any fund which has as yet been treated as in its nature charitable. Even in support of a salutary Jurisdiction we should not venture to strain a definition, already perhaps extended to the utmost limit. A case much dwelt upon in the argument was The Attorney-General v. Brown, 1 Svvanst. 265. That was an information filed against Commissioners authorised by Act of Parliament to levy a rate on every chaldron of coal landed outlie beach, or otherwise brought into the town of Brighton —such rate to be applied in repairing or building groins, walls, and other works, for tho protection of the town from the encroachment of the sea. The information charged tho Commissioners with misapplying the proceeds of this rata, and prayed a declaration as to the powers of tho Commissioners, and an injunction to restrain them from any levy except for the purposes authorised by the Statute. There was a demurrer for want of equity, which was overruled by Lord Eldon. The case was most elaborately argued ; and the Court seemed to feel considerable difficulty in making out that the coal duty was subject to a charitable use ; the Lord Chancellor at first saying (according to Mr. Swaustou's report) that he thought there was not a charitable use within the Statute. The very able counsel who appeared for the Attorney-Gen oral and the relators had urged in argument that it was unnecessary to the jurisdiction that the purposes should bo charitable. “ In describing the practice of the Court on the subject of informations, Lord Iledesdale,” they said, “ mentions charities only as one instance, amongst many, of the cases in which that remedy is allowed. Mitford’s,Eq. Pleading?. Whenever a fund is appropriated to objects beneficial to the action at large, any individual is entitled to tho aid of the Attorney-General for compelling its due administration.” But it does not appear from the report of the case that the Court adopted, oven partially, the extensive principle thus contended for. On tho contrary, Lord Eldon, whilst expressing a strong conviction that there must exist in some Court in the kingdom an authority to compel the Commissioners properly to apply tiro money which they were authorised to raise, seemed anxiously to found the jurisdiction, which he asserted, upon tho existence of a charitable nso within the Statute. Ho is represented as finally deciding that tho coal duty was a fund granted by Parliament in aid of the pecuniary inability of tho poor inhabitants of Brighton to protect themselves from tho ravages of the sea ; and so a gift to a charitable use within the Statute ; which expressly mentions tho repair of seabanks as one of the purposes of charitable donation. Unexplained, this decision of tho AttornoyGcncral v. Brown would have left on our minds very grave doubts, to say tho least, of our jurisdiction in the case before us ; nor is it surprising that Sir John Loach, who was of counsel for the defendants, for whom he argued most ably, should, afterwards, as ViceChancellor, have assumed, in the case of Attor-ney-General v. Heclis, that the jurisdiction of tho Court of Chancery over the administrators of public funds depended upon tho existence of a charitable use. But in the subsequent case of the Attorney-General v. tho Mayor of Dublin, in the House of Lords, Lord Eldon expressly disclaims that ground as constituting tho solo ratio decidendi in Attorney-General v. Brown.—“ After the argument,” ho says,' “it appeared to me that it was a charitable use. But that was not the ground of tho judgment in that case, whether

it was well or ill founded ; because I was of opinion that the Court of Chancery had jurisdiction in that case, whether it was, or was not, a charitable use.” The case before the House of Lords in which this observation was made was an information against the Corporation of Dublin, charging misappropriation of rates levied on the inhabitants under Act of Parliament for the improvement of the water supply of the city, and praying (amongst other things) a declaration and execution of the trusts and an account of the rates. Lord Redesdale delivered an elaborate opinion. He remarks that “in early times our Kings took upon themselves by prerogative to grant certain duties very much resembling these duties, for the benefit of towns and cities ; to wall towns, to pave towns, and for various other purposes. There are in the Register units expressly adapted to that purpose, reciting the grant, by some remote ancestor of the King, of certain duties which were to be applied to 1 the walling of towns, or paving towns, or other public purposes j and that those duties so taken had not been so applied ; and, not having been so applied, the writ authorised certain persons to call before them the persons whose duty it was to account, and to direct whatever should be in their hands to be applied according to the original intention of the grant, until the whole should be applied according to the intention of the grant.” After denying that the jurisdiction rests merely upon the Statute of charitable uses, his Lordship proceeds :—“The right which the Attorney-General lias to file an information is a right of prerogative ; the King, as ixitricv, has a right, by his proper officer, to call upon the several Courts of Justice, according to the nature of their several jurisdictions, to see that right is done to his subjects who ‘ are incompetent to act for themselves, as in • the case of charities, and other cases. . . . I take this case to be one which falls precisely within the description that I have mentioned. X apprehend it is one in which, according to the practice of the ancient law, such a commission as this which is to be found in the Register, might have issued ; because the persons who collect these rates are to account for the application of them, and to apply them accordingly.” Lord Kldou, then Lord Chancellor, appears to have fully agreed with Lord Redesdale, saying, that noble and learned Lord had “ reasoned satisfactorily, at least to his humble judgment, that if a writ of account could have been maintained, a suit in Chancery would be also capable of beingmaintained; unless the jurisdiction of the Court was e: pressly, or by necssary implication, taken away.” And in accordance with the opinions of these eminent persons a decree of the Lord Chancellor of Ireland dismissing the information was reversed ; and an account of the rates was decreed against the Corporation.

This case seems to us to lay down a broad and intelligible doctrine which is applicable to the present suit. In a passage which we have not yet quoted, but which perhaps is of more pointed application to the present case than anything in his judgment, Lord Redesdale says—“ It is expedient, in such cases, that there should be a remedy, and highly important that persons in the receipt of public money should know, that they are liable to account, in a Court of Equity, as well for the misapplication of, as for withholding, the funds. Suppose even the case of a public accountant clearly within the Act." His Lordship means the statute appointing commissioners for auditing public accounts in Ireland—“ who having embezzled or misemployed the public moneys, had rendered accounts which were imperfect or fabricated—could not the Attorney-General, upon discovery of the fact, or the fraud, proceed by information to recover the moneys so fraudulently withheld or misappropriated ? It has been said, by high authority, that such a right vests in the AttorneyGeneral by virtue of his office, and that the Court of Exchequer, upon such information, has jurisdiction to order such person-to account and pay the money. A similar remedy is applicable, as I conceive, to every other person having the trust and management of public money ; any public accountant of any description.” Can it be supposed that the application of the principles thus laid down by the learned Lords depended upon the municipal character, either of the defendants themselves, in the case before the House, or of the purposes to which the funds under their control were applicable ? There is no hint given of such a limitation ; and it cannot be doubted that the House, on the advice of those learned Lords, would have asserted the same jurisdiction against persons entrusted with the local funds of a County. Wo are unable to see any reason whatever why they should not be applied to the officers and the funds of -.he Provinces of New Zealand. One topic only remains to be dealt with on this part of the case. The information in the Attorney-General v. Mayor, &c., of Dublin, charged that the Corporation were trustees of the water-rate, and that their conduct amounted to a breach of trust ; and prayed a declaration and execution of the trust, and an account of the rates. The decree made by the House of Lords was interlocutory only, for an account ; and it does not appear now the cause was finally disposed of. It may be thought that this ’decision, and that in Attorney-General v. Brown, are referable purely to the jurisdiction of the Court over a Trust-fund. Were this the true view of the mattor, these decisions would be inapplicable ; for it is plain that the revenues of the Provinces of New Zealand are not, in the the ordinary sense of the term, Trust-funds, nor arc those who administer them, in the ordinary sense of the term, trustees. No Court could undertake the administration of such a trust, for it would be to assume the duties of a Government. But on any rational construction of the judgments of Lords Eldon and Redesdale it will be seen, that they proceed upon a wider ground than that of the existence in the ease before the House of an ordinary trust. , There is a sense in which every public officer is a trustee—a trustee, not necessarily of property vested in him, but of powers and functions. The public bodies before the Court in the two cases referred to may, or may not, have had vested in them the legal right of property in the public funds which they administered. That is an entirely immaterial circumstance. Clearly they were not trustees iu the ordinary sense. Trustees iu the common sense of the term may bo removed by the Court for misconduct. But there could be tie power in the Court of Chancery to remove members of either of the public bodies whose acts were in question. Nor could the Court have undertaken the administration of either fund in the same way as it undertakes the administration of a private trust-fund. In such cases the Court can do no more than correct abuses, and rostra,in the parties from exceeding the proper limits of their functions. The exercise of such a jurisdiction is entirely accordant with the principles on which the Court habitually acts. Thus a parish vestry, authorised by Act of Parliament to levy rates for certain purposes, has been restrained by injunction from mixing the moneys arising from district rates into one fund for the purpose of meeting the general expenditure of the parish; and, generally, from applying the moneys recovered by them for any other purposes than those to which, under the statute, they wore properly applicable. AttorneyGeneral v. Daniel, 9 Law Journal (N.S.), oh. 394. And in another case, Prewin v. Lewis 4 My. and Cr. 234 Lord Cottenham had no doubt of his power to restrain the Poor Law Commissioners from making an order infringing upon the right and functions of another public body. His Lordship put the jurisdiction on the widest possible basis. “Public functionaries,” he said, “or bodies incorporated by statute for a public purpose, or the promotion of a public benefit, may not exceed the jurisdiction which has been entrusted to them by the Legislature. So long ns they strictly confine themselves within the limits of their jurisdiction, and proceed in the mode which the Legislature has pointed out, the Court will not interfere to see whether any regulation or alteration which they make is good or bad ; but if, under pretence of an authority,which the law does give them to a certain extent, they go beyond the line of their authority, and assume to themselves a power which the law does not give them, the Court no longer con-J

; aiders them as acting under the authority of their Commission, but treats them as persons ; acting without legal authority.” If the Supreme Court of New Zealand is by tliis injunction prayed, directly or indirectly, to undertake any single function, belonging to the defendant as a public officer it would be an answer that the revenues of a Province are not a trust fund vested in the Treasurer as an ordinary trustee, and that the same can be administered only by the persons specially empowered by law in that behalf. But no such thing is involved in the prayer. The Court is simply asked to restrain a partly accomplished malversation of office, and to restore public moneys to their proper custody. To do this much we are of opinion that it has jurisdiction. This disposes of the principal grounds of demurrer, viz., the first and second. As to the third ground, that a relator should have joined in the suit, it is plainly untenable. The case in the House of Lords (Attorney-General v. Mayor, &c., of Dublin) is a distinct authority upon this point. It is twice stated by Lord Redesdale that the Court has jurisdiction on the information of the Attorney-General with, or without, a relator. The information before the House might, he says (Judgment, 1 Bligh N.S. 351), have been filed without a relator. It is optional with the Attorney-General ; and in the present case, which is a suit instituted by the Government, the introduction of a relator manifestly would have been improper. In no case could the omission of a relator be ground of demurrer. The fourth ground of demurrer is for want of parties. It was said that the Sivperintendent and the Auditor should have been joined as defendants. The answer is first, that this information, not concerning the rights of the Crown within the moaning of R.G. 563, is subject to the same rules as to procedure as an ordinary action; (R.G. 550), and the Provincial Treasurer is the only person against whom relief is directly sought, (R.G. 234). The substantial relief sought is, that the Treasurer be ordered to replace the <£lo,ooo, and be restrained from acting further upon the authority of the pretended warrant. Had the prayer of the Bill been limited to these particulars it could not have been said that relief was directly sought against the Superintendent. The declaration asked for, that the warrant is invalid, is merely a formal consequence of the injunction against any further issues of public money - upon its authority. It might be struck out without practically affecting the purpose of the suit. If made, it cannot prejudice cither the Superintendent' or the Auditor, who will be at liberty to dispute it’in any other proceeding civil or criminal. The argument that the Treasurer is a mere instrument of the Superintendent is sufficiently answered by what we have-said respecting the nature of the office of Provincial Treasurer. This is not a case to which the maxim “Respondent superior'" has any application. On the whole we are of opinion that the defendant is amenable to the jurisdiction of the Court in respect of the matters complained of, and that the demurrer must be overruled. The Court adjourned till 12 o’clock on Wednesday next.